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) Solicitors: Dentons Australia (Applicant) Bradley Allen Love Lawyers (Respondent) File Number(s): 2022/70823 JUDGMENT Application of Environmental Planning and Assessment Act 1979 (NSW) to dogs off-leash on public beach Second Further Amended Summons Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Planning controls Shoalhaven Local Environmental Plan 2014 (NSW) Companion Animals Act 1998 (NSW) Statement of agreed facts Agreed issues for determination Evidence Applicant's evidence Council's evidence A. Effect of Council resolutions relating to dogs on Narrawallee Beach (issues 1, 3) Summary of Council resolutions Access Areas for Dogs Policies Applicant's submissions Council's submissions Findings on (A) B. Intensification of use (issue 7) Applicant's evidence Evidence on increase in dog numbers Dog number surveys Evidence on noise impact Conflict with dog owners and personal safety Non-compliance with Companion Animals Act 1998 (NSW) Evidence of environmental impact Disturbance of shore birds Dog prohibited area (northern) Dog prohibited – on-leash transit to timed off-leash area (southern) Timed off-leash dog access area Reduction of shorebird numbers Non-compliance with the Decision Dog prohibited area (northern) Dog prohibited – on-leash transit to timed off-leash area (southern) Timed off-leash dog access area Evidence on ranger patrols of the Beach Applicant's submissions Council's submissions No intensification established C. Relief (issues 10, 2) Foreshore Reserves Policy Review of Environmental Factors Applicant's evidence Council's evidence Mr Coddington's affidavit Mr Coddington's oral evidence Dog Off-Leash Guide Draft Access Areas for Dog Policy Applicant's submissions Council's submissions Exercise of discretion finding Costs Declaration and order JUDGMENT Application of Environmental Planning and Assessment Act 1979 (NSW) to allowing dogs off-leash on public beach 1. The Applicant Narrawallee Beach Environment Group Inc (the Applicant) challenges the validity of a resolution by the Respondent Shoalhaven City Council (the Council) on 2 November 2021 relating to the use of a defined off-leash dog area on Narrawallee Beach (the Beach) on the south coast of NSW. Recreational use of the Beach by people dates from 1905. 2. The Beach is zoned for public recreation under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). A formal reservation of the Beach for public recreation occurred in September 1978. The Council is a local authority for the Beach for the purposes of the Companion Animals Act 1998 (NSW). 3. The Applicant argues the resolution made on 2 November 2021 (the Decision) did not comply with Pt 4 or, alternatively, Pt 5 of the EPA Act and seeks declarations of absence of development consent or environmental assessment as required by the EPA Act (in contrast to invalidity of the decisions) and consequential orders. Under s 9.45 of the EPA Act any person can bring proceedings to remedy or restrain a breach of the EPA Act. Under s 9.46 the Court may make any order it thinks fit to remedy or restrain a breach if established. The Applicant bears the onus of proof of establishing its case on the balance of probabilities. 4. On 22 April 2022 the Court extended the time for the Applicant to commence this proceeding with respect to the Decision of the Council pursuant to r 59.10(2) of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR). Second Further Amended Summons 1. The Second Further Amended Summons dated 24 May 2023 states as follows: RELIEF CLAIMED The Applicant claims the following relief: 1. Declare that 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 purported to authorise a use of the beach that and [sic] requires development consent in the RE1 zone under the Shoalhaven Local Environmental Plan 2014 (Shoalhaven LEP), without granting that development consent. 2. An order restraining that purported use until development consent has been granted pursuant to a development application lodged and assessed in accordance with the Environmental Planning and Assessment Act (EP&A Act). 3. In the alternative to Orders 1 and 2 above, declare that 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 EP&A Act, but is of no force and effect as there has been no compliance with s 5.5 of the EP&A Act. 4. An order restraining the Respondent from signing, designating or marking, and facilitating by the provision of dog faeces bins, dog faeces bag dispensers, and other dog-related infrastructure, or otherwise allowing or encouraging, the use of Narrawallee Beach or any part of it as an off-leash dog area with associated on-leash access. 5. An order that the Respondent forthwith: a. remove from Narrawallee Beach all signage allowing off-leash and associated-on-leash use at Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and replacing it with signage notifying that off-leash and associated on-leash dog use is prohibited at all times (the latter signage to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act), … c. place a note on the Respondent's website informing the public that off-leash and associated on-leash dog use of Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) is unlawful until either development consent is obtained authorising that use or an environmental assessment is carried out assessing that activity in accordance with the EP&A Act (such note to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act). 6. Such other orders as the Court deems fit. 7. Costs. DECISION 1. The decision is the resolution no. MIN21.804 made by the Respondent at the Ordinary Meeting on the 2 November 2021 (Decision). 2. The Decision does not purport to grant development consent pursuant to Part 4 of the EP&A Act or approval pursuant to Part 5 of the EP&A Act. 3. The Applicant seeks relief from the whole of the Decision. 4. The Decision purports to continue the following previous decisions made by the Respondent: a. Resolution no. MIN10.1445 made by the Respondent at the Council meeting held on 21 December 2010; b. Resolution no. MIN13. 631 made by the Respondent at the Council meeting held on 21 June 2013; c. Resolution no. MIN15.368 made by the Respondent at the Council meeting held on 23 June 2015 and reconvened on 24 June 2015; d. Resolution no. MIN15.652 made by the Respondent at the Council meeting on 27 October 2015; e. Resolution no. MIN16.541 made by the Strategy and Assets Committee of the Respondent on 16 July 2016; f. Resolution no. MIN19.578 made by the Respondent at Ordinary Meeting on 27 August 2019; g. Resolution no. MIN19.924 made at Strategy and Assets Committee of the Respondent on 10 December 2019; h. Resolution no. MIN21.68 made at Strategy and Assets Committee of the Respondent on 9 February 2021; and i. Resolution no. MIN21.120 made at Strategy and Assets Committee of the Respondent on 9 March 2021; 5. None of these previous decisions purport to grant development consent pursuant to Part 4 of the EP&A Act for, or assess or approve pursuant to Part 5 of the EP&A Act, the use of on-leash or off-leash dog walking at Narrawallee Beach. 1. Section 20 of the Land and Environment Court Act 1979 (NSW) (LEC Act) enables the Court to hear and decide this matter in its Class 4 jurisdiction. Environmental Planning and Assessment Act 1979 (NSW) 1. The following sections of the EPA Act current as at 2 November 2021 provided as follows: Part 1 Preliminary … 1.5 Meaning of "development" (1) For the purposes of this Act, development is any of the following— (a) the use of land, … (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). … Part 4 Development assessment and consent Division 4.1 Carrying out of development—with consent, without consent and prohibited … 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless— (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. … Division 4.11 Existing uses 4.65 Definition of "existing use" In this Division, existing use means— (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and (b) the use of a building, work or land— (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 4.66 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises— (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or … 4.68 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises— (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. … Part 5 Infrastructure and environmental impact assessment Division 5.1 Environmental impact assessment (except for State significant infrastructure) Subdivision 1 Preliminary 5.1 Definitions (1) In this Division— activity means— (a) the use of land, and … approval includes— (a) a consent, licence or permission or any form of authorisation, and (b) a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed. determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out. proponent, in relation to an activity, means the person proposing to carry out the activity, and includes any person taken to be the proponent of the activity by virtue of section 5.3. … ... Subdivision 2 Duty of determining authorities to consider environmental impact of activities 5.5 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. … 5.6 Regulations for environmental impact assessment by prescribed determining authorities (1) In this section, prescribed determining authority means a person prescribed for the purposes of the definition of public authority in section 1.4(1) so as to allow the person to be a determining authority within the meaning of this Division. (2) The regulations may make provision for or with respect to the exercise by a prescribed determining authority of its functions under section 5.5 (environmental impact assessment functions), including (without limitation) provision for or with respect to the following— (a) the manner in which environmental impact assessment functions must be exercised including the matters that must be considered in the exercise of those functions, … Subdivision 3 Activities for which EIS required 5.7 Decision of determining authority in relation to certain activities (1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment, unless— (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity— (i) prepared in the prescribed form and manner by or on behalf of the proponent, and … Environmental Planning and Assessment Regulation 2000 (NSW) 1. Clause 228 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), in force when the Review of Environmental Factors - Dog Off-Leash Access dated 28 January 2022 (the REF) referred to below in [122]-[127] was made, [I note that the Environmental Planning and Assessment Regulation 2021 equivalent Pt 8 Div 1 cl 171 commenced on 1 March 2022] provided as follows: Part 14 - Environmental assessment under part 5 of the act … Division 1 Circumstances requiring an environmental impact statement 228 What factors must be taken into account concerning the impact of an activity on the environment? (1) For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include— (a) for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or (b) for any other kind of activity— (i) the factors referred to in the general guidelines in force under this clause, or (ii) if no such guidelines are in force, the factors referred to subclause (2). (2) The factors referred to in subclause (1)(b)(ii) are as follows— (a) any environmental impact on a community, (b) any transformation of a locality, (c) any environmental impact on the ecosystems of the locality, (d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality, (e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations, (f) any impact on the habitat of protected animals (within the meaning of the Biodiversity Conservation Act 2016), (g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air, (h) any long-term effects on the environment, (i) any degradation of the quality of the environment, (j) any risk to the safety of the environment, (k) any reduction in the range of beneficial uses of the environment, (l) any pollution of the environment, (m) any environmental problems associated with the disposal of waste, (n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply, (o) any cumulative environmental effect with other existing or likely future activities, (p) any impact on coastal processes and coastal hazards, including those under projected climate change conditions. ... Planning controls 1. The Beach is zoned RE1 Public Recreation under the Shoalhaven Local Environmental Plan 2014 (SLEP) Land Zoning Map. Under the SLEP development for the purpose of a recreation area requires consent in the RE1 Zone, except to the extent that recreational use is a lawful continuing use which is preserved by the operation of Div 4.11 of Pt 4 of the EPA Act. Shoalhaven Local Environmental Plan 2014 (NSW) 1. The SLEP provides as follows: Land Use Table Zone RE1 Public Recreation 1 Objectives of zone • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. 2 Permitted without consent Nil 3 Permitted with consent Agriculture; Aquaculture; Boat building and repair facilities; Boat sheds; Building identification signs; Camping grounds; Car parks; Caravan parks; Charter and tourism boating facilities; Centre-based child care facilities; Community facilities; Eco-tourist facilities; Entertainment facilities; Environmental facilities; Environmental protection works; Function centres; Heliports; Information and education facilities; Kiosks; Markets; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Respite day care centres; Roads; Sewerage systems; Water recreation structures; Water supply systems 4 Prohibited Any development not specified in item 2 or 3 Dictionary … recreation area means a place used for outdoor recreation that is normally open to the public, and includes— (a) a children's playground, or (b) an area used for community sporting activities, or (c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor). … Companion Animals Act 1998 (NSW) 1. The management of dogs as companion animals is regulated by the Companion Animals Act which provides as follows: Part 1 Preliminary … 3A Principal object of Act The principal object of this Act is to provide for the effective and responsible care and management of companion animals. 4 Policy regarding animal welfare It is declared that the protection of native birds and animals is an objective of animal welfare policy in the State. 5 Definitions (1) In this Act— … companion animal means each of the following— (a) a dog, (b) a cat, (c) any other animal that is prescribed by the regulations as a companion animal. … council means— (a) the council of an area under the Local Government Act 1993, or … public place means— (a) any pathway, road, bridge, jetty, wharf, road-ferry, reserve, park, beach or garden, and (b) any other place, that the public are entitled to use. … 6 Meaning of "local authority" (1) The local authority for a place is the council in the area of which the place is located. … 6A General duties of councils (1) A council is required— (a) to promote awareness within its area of the requirements of this Act with respect to the ownership of companion animals, and (b) to take such steps as are appropriate to ensure that it is notified or otherwise made aware of the existence of all dangerous, menacing and restricted dogs (including dogs that might reasonably be considered to be the subject of a declaration under Division 1 or 6 of Part 5) that are ordinarily kept within its area. (2) Subsection (1) does not limit the other functions that may be conferred or imposed on a council by or under this Act. 6B Duty to provide certain information to councils (1) If an official person has any information about— (a) a dog that the person reasonably believes is a threat to the public, or (b) an incident involving a dog attacking or biting, without provocation, a person or animal, it is the duty of the official person to provide that information to the relevant council (or councils) as soon as it is reasonably practicable. (2) An official person does not incur any criminal or civil liability (including liability for breaching any duty of confidentiality) for providing any such information to a council if the information is provided in good faith. (3) In this section, official person means— (a) a police officer, or (b) an officer of the Royal Society for the Prevention of Cruelty to Animals, New South Wales, or of the Animal Welfare League NSW, as referred to in paragraph (b) of the definition of officer in section 4 (1) of the Prevention of Cruelty to Animals Act 1979. 7 Meaning of "owner" (1) Each of the following persons is the owner of a companion animal for the purposes of this Act— (a) the owner of the animal (in the sense of being the owner of the animal as personal property), (b) the person by whom the animal is ordinarily kept, (c) the registered owner of the animal. (2) A reference in this Act to the owner of a companion animal is a reference to each and all owners of the animal. … Part 2 Compulsory identification and registration of companion animals … Part 3 Responsibilities for control of dogs Division 1 General responsibilities … 13 Responsibilities while dog in public place (1) A dog that is in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person. (2) If this section is contravened— (a) the owner of the dog, or (b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person, is guilty of an offence. Maximum penalty— (a) 10 penalty units except in the case of a dangerous, menacing or restricted dog, or (b) 100 penalty units in the case of a dangerous, menacing or restricted dog. (3) Any person (including an authorised officer) can seize a dog that is in a public place in contravention of this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the contravention continues after the owner has been told of the contravention. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog. (4) A dog is not considered to be under the effective control of a person if the person has more than 4 dogs under his or her control. … (6) A local authority can by order declare a public place to be an off-leash area. Such a declaration can be limited so as to apply during a particular period or periods of the day or to different periods of different days. However, there must at all times be at least one public place in the area of a local authority that is an off-leash area. 14 Dogs prohibited in some public places (1) Dogs are prohibited in the following places (whether or not they are leashed or otherwise controlled)— … (c) Recreation areas where dogs are prohibited (meaning any public place, or part of a public place, provided or set apart by a local authority for public recreation or the playing of organised games and in which the local authority has ordered that dogs are prohibited and in which, or near the boundaries of which, there are conspicuously exhibited by the local authority at reasonable intervals notices to the effect that dogs are prohibited in or on that public place or part). … (d) Public bathing areas where dogs are prohibited (meaning any public place or any part of a public place that is used for or in conjunction with public bathing or public recreation (including a beach), in which the local authority has ordered that dogs are prohibited and in which, or near the boundaries of which, there are conspicuously exhibited by the local authority at reasonable intervals notices to the effect that dogs are prohibited in or on that public place). … (h) Wildlife protection areas (meaning any public place or any part of a public place set apart by the local authority for the protection of wildlife and in which the local authority has ordered that dogs are prohibited for the purposes of the protection of wildlife and in which, or near the boundaries of which, there are conspicuously exhibited by the local authority at reasonable intervals notices to the effect that dogs are prohibited in or on that public place). (2) If a dog is in a place in which dogs are prohibited under this section— (a) the owner of the dog, or (b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person, is guilty of an offence. (3) Any person (including an authorised officer) can seize a dog that is in a place in which dogs are prohibited under this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the owner fails to remove the dog from the place when the officer directs the owner to do so. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog. … (7) A local authority is authorised to make the orders contemplated by this section. … 16 Offences where dog attacks person or animal (1) If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal— (a) the owner of the dog, or (b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person, is guilty of an offence. (1AA) If a dog (other than a dangerous, menacing or restricted dog) rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal— (a) the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or (b) if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person. (1AB) If a dangerous, menacing or restricted dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal— (a) the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or (b) if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person. (1A) The owner of a dangerous dog, a menacing dog or a restricted dog is guilty of an offence if— (a) the dog attacks or bites any person (whether or not any injury is caused to the person), and (b) the incident occurs as a result of the owner's failure to comply with any one or more of the requirements of section 51 or 56 (as the case requires) in relation to the dog. (2) It is not an offence under this section if the incident occurred— (a) as a result of the dog being teased, mistreated, attacked or otherwise provoked, or (b) as a result of the person or animal trespassing on the property on which the dog was being kept, or (c) as a result of the dog acting in reasonable defence of a person or property, or (d) in the course of lawful hunting, or (e) in the course of the working of stock by the dog or the training of the dog in the working of stock. (3) This section does not apply to a police dog or a corrective services dog. (4) If, on the trial of a person charged with an offence against subsection (1AA) or (1AB) the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against subsection (1), and the person is liable to punishment accordingly. (5) For the purposes of this section, recklessness may also be established by proof of intention. … 20 Dogs defecating in public place (1) If a dog defecates in a public place— (a) the owner of the dog, or (b) if the owner is not present at the relevant time and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person, must immediately remove the dog's faeces and properly dispose of them. (2) Proper disposal includes disposal in a rubbish receptacle designated for the purpose by the local authority. It is the duty of a local authority for a place that is commonly used for exercising dogs (including an off-leash area) to provide sufficient rubbish receptacles for the proper disposal of the faeces of dogs that defecate in the place. (3) This section does not apply when the dog is an assistance animal being used bona fide by a person with a disability to assist the person and the person's disability makes compliance by the person with this section not reasonably practicable. … Statement of agreed facts 1. The parties agreed the following statement of agreed facts (SOAF) except two words where indicated ('considered' in pars 40-41): Historical use of Narrawallee Beach 1. On 30 December 1905, The Ulladulla and Milton Times reports on Boxing day activities with the region, including as follows: "Everybody and his wife had arranged to go picnicking- horses, saddles, buggies, sulkies, bicycles, and everything that would move and carry a passenger was engaged for the outing. What beach was not visited and what place of resort overlooked?…Pleasure seekers found everywhere- Narrawallee, Conjola…" 2. In the 1920's, Evol Knight attended holidays with the Garrad family in the 1920s – she recalls reheating and eating rabbit stew on Narrawallee Beach, whilst lobster pots where checked, having a wonderful time collecting pipis and doing a spot of fishing. [The Narrawallee Story Retold, by Alex McAndrew (p53)] 3. On 26 August 1938, the Nowra Leader reported on the public gathering at Narrawallee Beach to mark the opening of new public "Progress Road" constructed by the "Progress and Tourist Association". A 'public picnic and sports programme' occurred on Narrawallee Beach as part of the road opening celebrations. 4. On 3 March 1939, the Nowra Leader reported that on the activities of the local fishing club, the "Progress Fishing Club", noting that their next completion was to be held atNarrawallee Beach. 5. On 1 December 1939, the Nowra Leader reported on a fishing competition held by the "Milton Fishing Club" at Narrawallee Beach. 6. In the 1950s – 1960s, Victor Millard ("Bluey") fostered tourism at Narrawallee Beach owned and operated a guest house/holiday cottage/camping area by Narrawallee Beach. Jim and Eileen Wood, regular client's of Bluey and who stayed regularly during this period, fished off the beach or rocks, and set lobster pots off the northern end of Narrawallee Beach. [The Narrawallee Story Retold, by Alex McAndrew (pp 102 – 105)]. 7. In the 1950s, a Milton resident "indulged their guest by hiring a taxi to take him down to Narrawallee Beach for a picnic". [The Narrawallee Story Retold, by Alex McAndrew (p.100)] 8. In the 1960s, Boyd Walters commences visiting Narrawallee Beach for holidays. 9. In 1962, advertisements for the Narrawallee Beach Estate housing subdivision appealed to the area's long-established fishing, and magnificent surf beach. [The Narrawallee Story Retold, by Alex McAndrew (p115 - 116)] 10. In 31 August 1963, the Canberra Times published an advertisement for Narrawallee Surf Beach Estate. The article appealed to the area's "wide popularity", renown fishing and indicated that 374 lots of the Estate had already sold. 11. In 1965 to 1973, Dianne O'Donnell visited Narrawallee as a child during school holidays. 12. In 1976, the Council, through the Narrawallee Progress Association and Narrawallee Foreshores Committee, erected protective fences and provided walkways to Narrawallee Beach [The Narrawallee Story Retold, by Alex McAndrew [p 127]]. 13. On 8 September 1978, Lot 7009 DP 1116370 was reserved for 'public recreation.' 14. In 1994, kite-flying took place in winter and summer months on Narrawallee Beach: "It's mostly winter that sees kite-flying on Narrawallee Beach, but in January 1994 beachgoers witnessed a most novel and powerful kite which pulled its owner John Murray of Little Bay, Sydney, and his interesting three-wheel beach vehicle briskly along the sands in either direction." [Narrawallee Storey Retold, by Alex McAndrew (p162)] 15. In 1995, Stephen Campbell moved to Narrawallee and commenced walking "along Narrawallee Beach from south to north and return almost daily". 16. On 27 August 2014, Milton Ulladulla Times & Sussex Inlet Times reported that an Ulladulla runners group ran along Narrawallee Beach on 24 August 2014. 17. On 22 October 2014, Milton Ulladulla Times & Sussex Inlet Times reported that Ulladulla running group ran along Narrawallee Beach. 18. On 27 May 2015, an article in the Milton Ulladulla Times reported that the Council was to consider options for dog exercise areas on Narrawallee Beach. 19. On 23 July 2015, the Milton Ulladulla Times & Sussex Inlet Times Community Diary reported of a "NPA walk: Jones Beach, Bannisters Head to Narrawallee Beach circuit." 20. On 27 July 2016, the Milton Ulladulla Times reported on the Council's decision to adopt off-leash dog area trial arrangements for Narrawallee Beach on a permanent basis. The article reported that an advocate for the Narrawallee Beach Dogs group said: "we are grateful to be able to give people and their dogs time on the sand". 21. On 9 May 2018, the Milton Ulladulla Times & Sussex Inlet Times reported on a regular organised run along south Narrawallee Beach. 22. On 15 January 2020, the Milton Ulladulla Times & Sussex Inlet Times reported on an organised run, commencing at Narrawallee Inlet and returning onto south Narrawallee Beach. Council policies and resolutions 23. On 24 September 1979, a Report of the City Health Surveyor to the meeting of the Confidential Policy & Resources Committee of the Respondent, which was submitted to the Ordinary Meeting of the Respondent held on 8 October 1979, records at item 50(a), a recommendation: "That under Section 367(j) of the Local Government Act, 1919, dogs be prohibited at all times on… Narrawallee Beach Reserve". 24. On 8 October 1979, at an ordinary meeting the Respondent resolved to adopt the recommendations contained within the report of the Confidential Policy and Resources Committee dated 24 September 1979, with the exception of Item 46. 25. On 6 August 1985, a report of the City Health Surveyor was submitted to the meeting of the Finance & Welfare Committee of the Respondent. Item 1 of this report advises that: a) A petition was received at the meeting of the Respondent held on 7 May 1985 on File No. 74/1313, in which residents requested provision 'within the City for areas for the purpose of exercising animals under the control or responsible persons'; and b) 'In discussions with representatives of the petitioners, they explained the reasons for their request, which was to allow the exercising of dogs "off-leash" on beaches' including Narrawallee Beach; c) "Council has resolved that dogs be totally prohibited from Mollymook and Narrawallee beaches under Section 9 of the Dog Act 1966". The report recommended that, in relation to the petition, "Council adhere to its present policy and the requirements of the Dog Act 1966, prohibiting dogs from Narrawallee and Mollymook beach areas". 26. On 20 August 1985, an ordinary meeting of the Respondent took place. The minutes of that meeting record the following recommendation in relation to the petition File No. 74/1313: "RECOMMENDED that:- a) Council adhere to its existing Policy regarding the prohibition of dogs from Mollymook and Narrawallee beaches. b) The City Health Surveyor submit a report to the Finance and Welfare Committee on the exercising of dogs on beaches to enable Council to review its Policy on this matter." 27. On 15 October 1985, a report of the City Health Surveyor was submitted to the meeting of the Finance & Welfare Committee of the Respondent on 15 October 1985. Item 2 of this report, titled "Dog Control – The Exercise of Dogs on Beaches and a Review of Council's Policy", relates to File No. 74/1313. This report states that: a) on 24 September 1979, the Respondent resolved to prohibit dogs on specified beaches, including "Narrawallee Beach Reserve – total" under section 367(j) of the Local Government Act; and that b) on 21 August 1984 the Respondent resolved "Under Section 9 of the Dog Act 1966 that all prohibited areas previously resolved under the Local Government Act Section 367(j) on 24th September 1984 be now prohibited areas under the Dog Act 1966". The report recommends that "the report of the City Health Surveyor concerning Dog Control – The exercising of dogs on beaches and a review of Council's policy, be received for information." 28. On 4 November 1985, an ordinary meeting of the Respondent took place, where the minutes of that meeting record at item 3257 relating to "Dog Control – The Exercising of Dogs on Beaches and a Review of Council's Policy. File 74/1313" recommends "that the report of the City Health Surveyor concerning Dog Control – The exercising of dogs on beaches and a review of Council's policy, be received for information." 29. On 25 January 2005, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. MIN05.79 to adopt a number of dog prohibited areas for inclusion into its Access Areas Dogs Policy. Council resolved that Narrawallee Beach and reserve from Narrawallee Creek to Surfers Avenue be a dog-prohibited area in its Policy, excluding the area between north of Victor Avenue to the unnamed Island which was to become an on-leash area. 30. On 21 December 2010, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. 10.1445 to adopt an amended Access Areas for Dogs Policy. 31. On 21 June 2013, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. 13.631 to adopt an amended Access Areas for Dogs Policy. 32. On 23 June 2015, an ordinary meeting of the Respondent Council was held and later reconvened on 24 June 2015. The Respondent made resolution MIN15.368, resolving to allocate budget and human resources to implement a targeted "one off" trial for off-leash dogs in the existing on-leash area (the area from between the Victor Avenue steps north to and the unnamed Island), between 4 pm and 9 am, and to provide on-leash access to the trial area from the southern side of the Victor Avenue steps. 33. On 27 October 2015, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. MIN15.625 to extend the off-leash dog trial on Narrawallee Beach and to amend the designated off-leash hours to summer hours of 6pm to 8am. 34. On 19 July 2016, resolution no. MIN16.541 was made by the Strategy and Assets Committee of the Council to adopt the trial arrangements of a designated dog off-leash area at Narrawallee Beach within the restricted times of 6pm to 8am from 1 October to 30 April and 3pm to 10am from 1 May to 30 September until a review of the Access Areas for Dogs Policy. 35. On 27 August 2019, an ordinary meeting of the Respondent Council was held in which the Respondent made resolution no. MIN19.578 to conduct a six month trial of onleash dog access to the off-leash area from Surfers Avenue via Shoalhaven Water thoroughfare and the rear of the beach and to install associated signage and bollards. 36. On 10 December 2019, resolution no. MIN19.924 was made by the Strategy and Assets Committee of the Respondent Council to rescind MIN19.578 and approve a twelve-month trial of a 10 metre wide dog on-leash strip from Surfers Avenue unformed beach access area to the Victor Avenue steps and to trial extending the hours of the off-leash dog area to 4pm to 8am from 1 October to 30 April and 3pm to 10am from 1 May to 30 September. 37. On 9 February 2021, resolution no. MIN21.68 was made by the Strategy and Assets Committee of the Respondent Council to adopt the trial provisions with amendments to move the southern boundary of the dog off-leash area to immediately south of the most southern Narrawallee Inlet Reserve entrance, remove the 10 metre wide on-leash access strip from Surfers Avenue, prohibit access to the dogs off-leash area on the southern end of the beach including the Victor Avenue steps, and to the time periods for the dog off-leash area from 1 October to 30 April to refer to Australian Eastern Daylight Savings time (being 4pm – 8pm)_and from 1 May to 30 September to refer to Australian Eastern Standard time (being 3pm – 10 pm). 38. On 9 March 2021, Resolution no. MIN21.120 was made by the Strategy and Assets Committee of the Respondent Council, that Council, amongst other things, support the continuing access to the dog off-leash area at Narrawallee Beach from Surfers Avenue (as per the recent trial directions) and to leave this access in place until a review of the Access Areas for Dogs policy. 39. On 2 November 2021, an ordinary meeting of the Respondent Council was held. The Respondent made resolution no. MIN21.804 to reinstate the southern boundary of the dog off-leash area to be in line with the Victor Avenue steps, retained the northern boundary of the dog off-leash area, allowed on-leash access to the dog off-leash area via a transition area from Surfers Avenue, allowed dog access from all beach entry points between and including the Surfers Avenue steps and Parkinson Street, and stated that new signage is to be provided, being the resolution which is the subject of these proceedings. 40. On 28 March 2022, an ordinary meeting of the Respondent Council was held in which the Council [considered] a report titled 'CL22.158 Narrawallee Breach – Dog Access Areas – Review of Environmental Factors' and the attached 'Review of Environmental Factors - Dog Off-Leash Access' dated 28 January 2022 (REF). The Respondent Council resolved to refer the matter to a Councillor Briefing. 41. On 26 April 2022, an ordinary meeting of the Respondent Council was held in which the Respondent [considered] a report titled 'CL22.197 Narrawallee Beach – Dog Access Areas – Review of Environmental Factors' and the REF. The Respondent resolved to postpone making a determination and hold in place the current on-leash / off-leash provisions pending further investigation and the review of the Access Areas for Dogs Policy. 1. The Council submitted that various resolutions are intended to manage the Council's obligations under the Companion Animals Act which came into force on 28 August 1998. Agreed issues for determination 1. The Second Further Amended Summons identifies two grounds, the failure to obtain development consent under s 4.2(1) of the EPA Act before the Decision was made, alternatively, the failure to comply with s 5.5(1) of the EPA Act namely the assessment of environmental impacts of the proposed activity before the Decision was made. The parties provided the following list of issues for determination during the course of the proceeding which required some alteration to reflect the arguments made. The answers to several of the issues are agreed as indicated and the number of matters in dispute is therefore reduced. 2. The issues as finally agreed by the parties are: 1. What is the proper construction and effect of the Decision? In issue. 2. [See below issue 10] 3. To extent that the Applicant challenges the validity of decisions of the Council pleaded in the paragraph 4 of the Summons under the heading "Decisions", should the Court exercise its discretion to extend the time for commencing the proceedings in respect of those decisions? In issue. 4. Is the use of Narrawallee Beach as an off-leash dog area with associated on-leash access (the Use), being the subject of the Respondent's decision on 2 November 2021 (the Decision), "development" within the meaning of that term in the Environmental Planning and Assessment Act 1979 (EP&A Act)? Agreed, answer is yes. 5. Is the Use properly characterised as development for the purpose of a "recreation area" as defined in the Shoalhaven Local Environmental Plan 2014 (Shoalhaven LEP), being a purpose requiring development consent in the RE1 zone? Agreed, answer is yes. 6. Does the Use have the benefit of continuing use rights under Part 4 of the EP & A Act as pleaded at paragraph 8 of the Points of Defence? Agreed, answer is yes. 7. Assuming continuing use rights apply, does the Use constitute an intensification within the meaning of s4.68(2)(c) of the EP & A Act of the use of Narrawallee Beach as a recreation area? In issue. 8. Is the Use an activity within the meaning of Part 5 of the EP & A Act? Agreed, answer is yes. 9. If subject to Part 5 of the EP&A Act, did the respondent examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Use before making the Decision, in accordance with s5.5(1)? Agreed, answer is no. 10. Relief and discretion. In issue. 2. Do the earlier decisions referred to at paragraph 4 under the heading 'Decision' of the Applicant's Summons filed 11 March 2022 (Earlier Decisions) preclude the relief sought in the Summons? That is, can the Court grant the relief sought restraining dogs on Narrawallee Beach until there is either a development consent or Part 5 assessment and compliance with s 5.5 notwithstanding the existence of the Earlier Decisions. In issue. 1. As a result of the parties' agreement on some of the issues identified above, three areas of debate remain, which I will label A, B and C. Firstly (A) the nature and scope of the Decision challenged in the context of Council's decision-making over many years must be considered (issues 1, 3). 2. Secondly (B) the Council accepts and the Applicant agrees that the use of the Beach as an off-leash area for dogs is 'development' as defined under the EPA Act and for the purposes of 'recreation area' in the SLEP which use has existing use rights (issues 4, 5, 6). That leaves for determination the issue of whether the existing use has intensified, which is disputed (issue 7). 3. Thirdly (C) alternatively if Pt 5 applies (if the Applicant does not establish intensification of the existing use) the Council accepts its Decision of 2 November 2021 gives rise to an activity to which Pt 5 applies. At the time the Decision was made no REF was before the Council. One has since been prepared and is in evidence. That is relied on by the Council to argue the relief sought by the Applicant should not be made in the exercise of the Court's discretion if the question of relief arises (issues 2, 10). Evidence Applicant's evidence 1. The Applicant read the following affidavits: 1. Ms Vatala solicitor sworn 17 June 2022, 21 June 2022 (supplementary) and 27 September 2022; 2. Ms Gregory local resident sworn 16 June 2022; 3. Mr Mitchell local resident affirmed 16 June 2022; 4. Ms O'Donnell local resident sworn 17 June 2022, 2 December 2022 and 13 April 2023; 5. Mr Murray local resident affirmed 17 June 2022, 12 October 2022, 4 April 2023 and 5 May 2023; 6. Mr O'Donnell local resident sworn 17 June 2022 and 13 April 2023; 7. Ms Jasiak local resident affirmed 16 June 2022 and 12 April 2023; 8. Mr Wright local resident affirmed 21 June 2022; 9. Ms Cordeiro local resident affirmed 21 June 2022 and 12 April 2023; 10. Ms Campbell local resident sworn 21 June 2022 and 13 April 2023; 11. Mr Bradshaw local resident affirmed 21 June 2022 and 13 April 2023; 12. Mr Campbell local resident sworn 21 June 2022 and 14 April 2023; 13. Mr Walters local resident affirmed 22 June 2022 and 13 April 2023; and 14. Ms Bradshaw local resident affirmed 13 April 2023. 1. The Applicant tendered the following exhibits: 1. Exhibit to Ms Vatala's affidavit sworn 17 June 2022 (Ex A); 2. Exhibit to Ms Vatala's affidavit sworn 27 September 2022 (Ex B); 3. Exhibit to Mr Murray's affidavit affirmed 17 June 2022 (Ex D); 4. Exhibit to Mr Campbell's affidavit sworn 21 June 2022 (Ex E); 5. Exhibit to Mr Murray's affidavit affirmed 4 April 2023 (Ex F); 6. Exhibit to Ms Campbell's affidavit sworn 13 April 2023 (Ex G); 7. Exhibit to Mr Murray's affidavit affirmed 5 May 2023 (Ex H); 8. Tabs 35 to 43 of the evidence book containing documents produced in response to Notice to Produce 13 April 2023 (Ex J); 9. Tab 31 of the evidence book containing an extract from the book 'What Bird is That' (Ex K); 10. Applicant's bundle of documents containing documents produced under subpoena (Ex L); and 11. Notice to produce for inspection dated 13 April 2023 (Ex M). Council's evidence 1. The Council read the following affidavits: 1. Mr Brickhill solicitor affirmed 22 July 2022; 2. Ms Cooke librarian at the Council affirmed 18 July 2022 and 9 August 2022 (Supplementary) (not summarised as parties agree recreational history of the use of the Beach); and 3. Mr Coddington biodiversity coordinator at the Council affirmed 16 May 2023. 1. The Council tendered the following exhibits: 1. Exhibit to Mr Brickhill's affidavit affirmed 22 July 2022 (Ex 1); 2. The Council's Access Areas for Dogs Policy adopted on 21 December 2010 (Ex 2); and 3. The Council's Access Areas for Dogs Policy adopted on 25 January 2005 and as amended 10 February 2009 (Ex 3). A. Effect of Council resolutions relating to dogs on Narrawallee Beach (issues 1, 3) 1. The Applicant is seeking to challenge one resolution of the Council made on 2 November 2021, the Decision, and obtained leave of the Court to do so as the statutory time limit to do so was not met. That is not the only decision made by the Council in relation to off-leash dog access on the Beach. Issues 1 and 3 require consideration of the resolutions made by the Council over many years in relation to dog access on the Beach. The Second Further Amended Summons identifies a number of resolutions in par 4 which are not the subject of challenge in the summons. a. Resolution no. MIN10.1445 made by the Respondent at the Council meeting held on 21 December 2010; b. Resolution no. MIN13.631 made by the Respondent at the Council meeting held on 21 June 2013; c. Resolution no. MIN15.368 made by the Respondent at the Council meeting held on 23 June 2015 and reconvened on 24 June 2015; d. Resolution no. MIN15.652 made by the Respondent at the Council meeting on 27 October 2015; e. Resolution no. MIN16.541 made by the Strategy and Assets Committee of the Respondent on 16 July 2016; f. Resolution no. MIN19.578 made by the Respondent at Ordinary Meeting on 27 August 2019; g. Resolution no. MIN19.924 made at Strategy and Assets Committee of the Respondent on 10 December 2019; h. Resolution no. MIN21.68 made at Strategy and Assets Committee of the Respondent on 9 February 2021; and i. Resolution no. MIN21.120 made at Strategy and Assets Committee of the Respondent on 9 March 2021; 1. The Council does not consider that list is exhaustive of the decisions made by the Council about dog access on the Beach. The Council referred to additional decisions all but one of which are included in the SOAF at pars 23-41. It is necessary to review the various resolutions made over time to understand the context for the Decision being challenged. Summary of Council resolutions 1. On 8 October 1979 the Council adopted a recommendation of the report of the City Health Surveyor dated 24 September 1979 that dogs be prohibited at all times on the Beach Reserve under s 367(j) of the Local Government Act 1919 (NSW). A report of the City Health Surveyor submitted to a committee meeting of the Council on 15 October 1985 stated that on 21 August 1984 the Council continued the prohibition areas under s 9 of the Dog Act 1966 (NSW). 2. By way of summary dogs were prohibited on the Beach until 25 January 2005. On that date the Council resolved to designate an on-leash area for dogs on the beach (MIN05.79). On 23 June 2015 the Council resolved to permit dogs off-leash in a different area on the Beach for the first time (MIN15.368). Over time various resolutions amended access arrangements to the off-leash area as well as the boundaries and time periods in summer and winter for the designated off-leash area as part of the trial. In March 2022 the Council resolved to continue off-leash dog access following the trial. The arrangements were varied in the Decision of 2 November 2021. 3. The Council resolutions provided: 1. On 25 January 2005 the Council resolved that the Beach would be a dog-prohibited area, excluding the area between north of Victor Avenue and the unnamed island that was to be an on-leash area (MIN05.79). 2. On 23 June 2015 the Council resolved to implement a trial for off-leash dogs in the existing on-leash area between the Victor Avenue steps and the unnamed island between 4:00pm and 9:00am (MIN15.368). On-leash access to the trial area was provided from the southern side of the Victor Avenue steps. The trial was extended on 27 October 2015 by a resolution of the Council (MIN15.625). The resolution amended the designated off-leash hours to summer hours of 6:00pm to 8:00am. 3. On 19 July 2016 the Council adopted trial arrangements of a designated dog off-leash area at the Beach within the restricted times of 6:00pm to 8:00am from 1 October to 30 April and 3:00pm to 10:00am from 1 May to 30 September (MIN16.541). 1. On 27 August 2019 the Council resolved MIN19.578 as follows: That Council conduct a six months trial for dog walkers who desire to access Narrawallee Beach from Surfers Avenue. The trial period would mandate the following: 1. The trial access journey plan from Surfers Avenue is stipulated via the Shoalhaven Water thoroughfare to its end, then onto the rear of the beach keeping close to the escarpment, proceeding to the foot of the Victor Avenue stairs and then onto the designated "dog area" to the north. 2. In walking from Surfers Avenue to the Victor Avenue stairs all dogs must be kept on a lead. 3. The trial would not commence until all necessary signage was installed, access from the Shoal Water track to the beach was made good and around five bollards were put in place along the rear of the beach (base of escarpment) to the Victor Avenue stairs. Note that pictorial bollard signage directing dog walkers to keep to the escarpment side would be an essential element of the trial. 1. By resolution dated 10 December 2019 the Council approved MIN19.924 which stated: That Council: 1. Rescind MIN19.578 and approve a twelve-month trial to commence prior to Christmas, to create a 10m wide Dog On-leash strip passing from the Surfers Avenue unformed beach access area (Shoalhaven Water access road), to the commencement of the Dogs On-Leash area of the main Narrawallee Beach. 2. Amend the existing Dog Off-leash Guide diagram for Narrawallee Beach, to alter the Dog Prohibited area by redesignating a 10m wide strip between the Surfers Avenue unformed beach access and the Victor Avenue stairs to the north, as Dog On-leash. At the same time, obtain new signage for installation at the northern and southern limits of the proposed Dog On-leash strip. 3. Commence investigation of the feasibility of establishing an upgrade of the trial track west of the Dog Prohibited Area of the beach, to allow dog owners to walk their dogs between the Surfers Avenue stairs and the Victor Avenue stairs to avoid walking across the Dog Prohibited area. 4. Conduct the Dog Off-leash trial using the same times as those used in the 2015-16 trial (4pm-8am 1 October – 30 April and 3pm-10am 1 May – 30 September) consistent with other Dog Off-leash locations in the Shoalhaven. 5. Inform the local Community Consultative Bodies of this twelve-month trial. 1. The following diagram was attached to the agenda for the ordinary meeting when the Council made the resolution dated 10 December 2019. 2. By resolution dated 9 February 2021 the Council adopted trial provisions with amendments as follows (MIN21.68): 1. Accept the summary of the community feedback and outcome of the amended Dog Off-leash area 12-month trial on Narrawallee Beach for information. 2. Adopt the trial provisions, with the following amendments: a. Amend the dates from: i. 1 October to 30 April to Australian Eastern Daylight Savings Time, being 4pm–8am, and ii. 1 May to 30 September to Australian Eastern Standard Time, being 3pm–10am. b. Move the southern boundary of the off-leash area to immediately south of the most southern Narrawallee Inlet Reserve entrance and prohibit access to the dog off-leash area on the southern part of Narrawallee Beach, including Victor Avenue stairs. c. Remove the 10m wide access way from Surfers Avenue. 3. Erect new signs at the various access points at Narrawallee Beach in accordance with the endorsed direction. 4. As part of the Review of the Access Areas for Dogs Policy, subject to community consultation, amend the dates of other Shoalhaven timed off-leash areas to be consistent with Part 2 (a) (i). 1. By resolution dated 9 March 2021 the Council resolved MIN 21.120 as follows: That Council: 1. Support the continuing access to the off-leash area at Narrawallee Beach from Surfers Ave as per the recent trial directions. 2. Develop appropriate signage directing people the right way to access the off leash area in and around Narrawallee Beach especially at the Surfers Ave end. Clrs Proudfoot and White and available Councillors to assist in the development of the signage with staff. 3. Leave the access from Surfers Ave in place until consideration of this area in the review of the Access Areas for Dogs policy. 4. Issue enforcement penalty notices for persons not following the signage or walking with dogs directly across south end Narrawallee Beach between the steps and Victor Ave steps. 5. Request local residents, Paws4Shoalhaven and Rangers to assist with advising residents and visitors of the strict entry process from Surfers Ave to the off-leash area. 6. Undertake vegetation maintenance if required on mid beach access points as noted in Staff Signage Report 7. Contact Holiday Home owners via Rates Notices advising them of the changes and the role they play in sharing the foreshore and informing their tenants of the access arrangements for dogs. 8. Include on the new signage, information on shore bird habitats which is protected by No Dogs (access) areas. 9. Include on the signage that to access the beach via the track from Surfers Avenue at the back of the beach, dogs must be on leash. 1. The Decision made on 2 November 2021 stated (MIN21.804): That Council, in relation to the dog off leash area boundaries and entry points at Narrawallee Beach: 1. Reinstate the Southern boundary of the dog off-leash area to be in line with the Victor Avenue steps (as per the Trial). (BA2 map) 2. Retain the Northern boundary of the dog off-leash area to be in line with the beach entry point opposite Parkinson Street. (BA 7 map) 3. Allow dog access from all beach entry points in between and including Victor Avenue steps and Parkinson Street, Narrawallee Beach. (BA2 to BA7 map) 4. Continue to allow on leash access from Surfers Avenue to Victor Street Steps via a transit zone – (BA1 to BA2 map). 5. Provide new signage to the beach entry points at 17 locations from Surfers Avenue to Narrawallee Inlet, as per the attached signage. 6. Agree that this resolution will be an interim solution and will be considered for assessment as part of the dog policy review. 1. The following diagrams were attached to the minutes of the ordinary meeting on 2 November 2021 when the Council made the Decision. The first diagram is a map indicating the existing areas and access ways for dog access on the Beach at the time the Council met to consider the Decision. The second diagram depicts the proposed on-leash and off-leash dog arrangements ultimately adopted in the Decision on 2 November 2021. BA - beach access, IA - inlet access. BA1 is Surfers Avenue. BA2 are the Victor Street steps. BA7 is Parkinson St Narrawallee Beach. BA - beach access, IA - inlet access. BA1 is Surfers Avenue. BA2 are the Victor Street steps. BA7 is Parkinson St Narrawallee Beach. Access Areas for Dogs Policies 1. The Council adopted an Access Areas for Dogs Policy on 25 January 2005 (Ex 3). This policy was superseded by an Access Areas for Dogs Policy adopted by the Council on 21 December 2010 in MIN 10.1445 (Ex 2). The Council then adopted another Access Areas for Dogs Policy dated 21 June 2013 in MIN 13.631. These policies were the subject of and provide context for the previous resolutions of the Council. On 17 February 2015 the Council adopted the Access Areas for Dogs Policy in force at the time of the Decision. I note the Council is currently undertaking a review of its Access Areas for Dog Policy with a draft policy on public exhibition. 2. Relevant sections of the Access Areas for Dogs Policy dated 17 February 2015 as amended 9 February 2021 are extracted below. 5. PROVISIONS 5.1. On-Leash Areas for Dogs Outside Council's 'dog prohibited' areas and 'prohibited boundary' areas as governed by the Companion Animals Act, a dog may be taken onto any Council land as described by this policy providing it is kept on-leash at all times. There are exemptions, which are identified in section 5.5. 5.2. Dog Prohibited Areas – Companion Animals Act This policy is governed under the Companion Animals Act, therefore the recognised dog prohibited areas legislation applies city wide as an enforceable regulation. Dogs are prohibited in the following places (whether or not they are leashed or otherwise controlled): (a) Children's play areas (b) Food preparation/consumption areas. (c) Recreation areas where dogs are prohibited (d) Public bathing areas where dogs are prohibited (e) School grounds (f) Child care centres (g) Shopping areas where dogs are prohibited. (h) Wildlife protection areas 5.3. Dog Prohibited Areas – Site Specific In addition, to the generic prohibited areas as defined above, Council has zoned designated site specific areas of managed land or land within the care and control of Council to be enforced as dog prohibited (24 hours). The prohibited zoning of the below listed areas were influenced by either the natural or social environment. To define the applicable boundary, dogs are prohibited at the greatest distance set by either the Companion Animals Act or Council site specific boundary. … Narrawallee Narrawallee Beach and reserve from Narrawallee Creek to the unnamed Island. Narrawallee Beach and reserve from the northern end of Victor Avenue to Surfers Avenue. … 9. RELEVANT PLANS, POLICIES AND LEGISLATION NSW Companion Animals Act 1998 Community Strategic Plan, Shoalhaven Council 2020 Council Policy – Dog Control – Holiday Tourist Parks Council Policy – Foreshore Reserves Policy Council Policy – Companion Animals Policy Applicant's submissions 1. The Applicant argued that the Decision under challenge while it stands alone continues to give effect to, and supersedes, all previous resolutions made by the Council itemised in par 4 of the Second Further Amended Summons. If the effect of the Decision is found to be so these previous resolutions will also be null and void. The consequence of declaring the Decision as not complying with the EPA Act due to intensification of the use is that dogs will not be allowed off-leash on the Beach until development consent has been granted by the Council to itself as required by Pt 4 of the EPA Act (issue 7). 2. The Decision represents the Council's approval presently in force for off-leash and on-leash dog access at the Beach. As part of the Decision the Council resolved to: 1. Reinstate the southern boundary of the dog off-leash area to be in line with the Victor Avenue steps (as per the trial) (BA2 map); 2. Retain the northern boundary of the dog off-leash area to be in line with the beach entry point opposite Parkinson Street (BA7 map); and 3. Continue to allow on-leash access from Surfers Avenue to Victor Street Steps via a transit zone (BA1 to BA2 map). 1. The Applicant submitted that it does not need to challenge the previous resolutions as the relief sought will deprive the previous resolutions of their continuing effect in the absence of development consent or a Pt 5 assessment by restraining the use the subject of the Decision. None of the previous resolutions grant development consent under Pt 4, or assess or approve pursuant to Pt 5, the use of on-leash or off-leash dog access on the Beach as pleaded at par 5 of the Second Further Amended Summons. 2. The Council did not make express pleadings regarding the effect of the Decision on previous resolutions or the need for the Applicant to seek leave under r 59.10 of the UCPR in their Points of Defence. 3. The Applicant invited the Court to adopt a similar approach to Preston CJ in Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 (Palm Beach) by dealing with the determinative issues about whether development or Pt 5 approval applies on the premise that the Decision allows dogs on the beach rather than engaging with the parsing and phrasing of Council's resolutions over time. 4. Further in oral submissions the Applicant submitted the resolutions of the Council were unclear. Council's submissions 1. The Applicant appears to effectively seek to challenge all previous resolutions made by the Council going back to 21 December 2010. The Applicant only has leave to challenge the Decision made on 2 November 2021. 2. Any relief sought can arise only from the impacts of the Decision. Even if found to be invalid it does not affect the validity of the previous resolutions of the Council to permit dogs off-leash in a specified area at specified times on the Beach and on-leash in the southern transit zone to that area. The previous decisions of the Council remain in the absence of any specific challenge by the Applicant, for which it would need consent from the Court under r 59.10 of the UCPR to commence judicial review proceedings given it is outside the statutory time limit. No such application has been made. 3. The Decision purports to alter the boundary of the existing off-leash dog area, the subject of earlier resolutions of the Council on 9 March 2021 and 2 February 2021. The first decision to permit dogs off-leash on the Beach at certain times was made on 24 June 2015 when a trial commenced. If relief is granted relevant to the single decision challenged the on-leash and off-leash arrangements on the Beach revert to the situation prior to 2 November 2021. This would be a marginal change as evidenced by the diagrams above in [34] namely a small reduction in the area available for off-leash dog access plus a small increase in the dog prohibited on-leash transit to timed off-leash area only. 4. It is unclear why the decisions in par 4 of the Second Further Amended Summons have been chosen. Some of the decisions chosen only permit on-leash access. Off-leash dog access was first approved by the Council's decision of 2015. 5. The relief sought also doesn't align with on-leash access by dogs being permitted on the beach. The Applicant's case does not appreciate the lawful rights for people to access public areas with their dogs on-leash under s 13(1) of the Companion Animals Act. Dogs are permitted on-leash in a public place such as the Beach in the absence of a prohibited area order being made under ss 14(1), (7) of the Companion Animals Act. 6. If the orders sought by the Applicant are made, the arrangements on the beach would revert to those under the previous resolution dated 9 March 2021. The Court should not grant relief sought in orders 4 and 5 of the Second Further Amended Summons dated 24 May 2023. The orders concern associated on-leash activities which are permitted under the Companion Animals Act. The orders seek removal of infrastructure that is undefined [I note the Application no longer presses such an order]. This may include receptacles and plastic bag dispensers contrary to the Companion Animals Act. Remedial orders should be declined as the infrastructure is required. Findings on (A) 1. The various resolutions of the Council set out in the SOAF show a lengthy history of management of dog access on the Beach, commencing for present purposes from 2005 when dogs on-leash were first permitted on the Beach with the decision of the Council to no longer prohibit dogs there. 2. The Companion Animals Act provides the legal framework for the management of companion animals which are defined to include dogs in s 5(1). The Council is the local authority for the Beach under s 6(1). Part 2 deals with the need to identify and register companion animals. Part 3 Responsibilities for control of dogs includes in s 13(1) that a dog in a public place must be on a lead held by a person as the means of exercising effective control. Effective control is not exercised if a person has more than four dogs in a public place (s 13(4)). The responsibility of the Council in the management of dogs in public places includes the ability to make an order that certain places are prohibited for dog access, s 14(7). Public place includes beaches and parks, s 5(1). Areas that may be the subject of an order include public bathing areas, recreation areas and wildlife protection areas, inter alia. Unless an area is prohibited as provided by s 14(1) dogs are permitted on-leash in public places, subject to the owner's responsibilities in s 13(1) (effective control) and s 20(1) requiring immediate removal and proper disposal of any dog faeces by the owner or person in control of a dog. Local authorities have a duty to provide sufficient rubbish receptacles for this purpose in areas used commonly to exercise dogs under subs (2). Under the Companion Animals Act a public place is available for on-leash dog access without restriction if not otherwise prohibited to dogs under s 14(1). The Council can declare a specified area of a public place to be an off-leash dog area within specified time periods, by order made under s 13(6). Section 16 provides that it is an offence where a dog rushes at, attacks, bites, harasses or chases any person or animal inter alia. 3. The construction of council resolutions was considered by Pepper J in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [49] (this point was undisturbed on appeal) citing Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 at 520 when Wells J identified that council resolutions should be considered in context and that: …a court should not be too ready to attribute to a Council an intention to contradict itself, or to pass inherently inconsistent resolutions; and that if it is possible, by a not unreasonable construction to harmonize two or more apparently conflicting resolutions, then that is the construction that should be adopted. It would, accordingly, be misleading to rely only on the bare words of a resolution disengaged from the events that lead to, and resulted from, its being passed, and to look for unreason rather than for reason. 1. The history of decision making is set out above at pars 32-41 of the SOAF and the summary of evidence above in [25]-[34]. The resolutions include that in 2005 the Council resolved to change the area of prohibition to dogs from the whole of the Beach to the southern area of the Beach (Surfers Avenue) and the northern section (beyond the unnamed island) stating that the area north of Victor Avenue steps to the unnamed island was to be an on-leash area. The Council made the first order allowing a time restricted off-leash trial on a defined part of the Beach in 2015. That trial arrangement was varied over time as to hours as between summer and winter, and as to the area where dogs are allowed off-leash, in various resolutions. On-leash dog access in the southern prohibited section as a transit zone to the timed off-leash area was introduced in 2019. The trial period was finalised and the decision made to permit timed off-leash dog access in a specified area in February 2021 and continued in March 2021. The 2 November 2021 resolution (the Decision) further varied the March 2021 decision. 2. The Council confirmed the area of Narrawallee Inlet and the northern section of the Beach a prohibited area with no dog access in 2015 when it allowed dogs off-leash onto part of the beach for the first time which arrangement continues. 3. The focus of the Applicant's case is the Decision of 2 November 2021 which made relatively modest changes to previous resolutions of the Council permitting off-leash dog access on the Beach in, firstly, changing the south boundary of the off-leash area on the Beach and, secondly, in relation to the use of the dog prohibited on-leash transit to timed off-leash area in the south of the Beach for on-leash dog access in an area otherwise prohibited to dogs, including the installation of appropriate signage. It argues that as this continues the effect of earlier decisions of the Council a finding that it is legally deficient means that these earlier decisions must also have no effect. No direct legal challenge is made to these earlier decisions of the Council. If these decisions were to be challenged in judicial review proceedings leave to do so would be required. 4. I cannot agree with the characterisation of the Decision argued for by the Applicant. Various policy decisions have been made by the Council to allow off-leash and on-leash dog access on the Beach over many years, most relevantly since 2015 in relation to timed off-leash dog access in a limited area of the Beach. A finding that the Decision requires development consent does not mean that earlier decisions not the subject of legal challenge are automatically rendered inoperable. Further, the Council has an Access Areas for Dogs Policy which has been amended at various times and also continues in existence regardless of whether the Decision under challenge is found legally wanting. 5. It necessarily follows that if the Applicant establishes its claim in reliance on Pt 4 or Pt 5 that I will not be granting the relief in the very broad terms sought which if made would stop any off-leash dog access on the Beach. The orders now sought also seek removal of all signs referring to off-leash dog access, and to restrain the facilitation of the provision of plastic bag dispensers and rubbish receptacles (rather than immediate removal as sought at the outset of the hearing). Given that on-leash dog access is allowed at any time on the Beach under s 13(1) of the Companion Animals Act and given the responsibility of the Council under s 20(2) restraining the facilitation of the provision of the plastic bag dispensers and rubbish receptacles is legally and practically problematic. 6. The Applicant did not seek to formally challenge the earlier decisions of the Council set out in par 4 of the Second Further Amended Summons extracted above. Issue 3 raises the matter of whether the Court should exercise its discretion to extend time to allow a challenge out of time. As no such application has been made by the Applicant I need not consider this issue further. 7. Reliance on the approach in Palm Beach is misplaced as the two decisions challenged were different as they permitted dog access onto Station Beach for the first time. The history of resolutions I must consider is self-evidently different and has taken place over a period of several years. B. Intensification of use (issue 7) Applicant's evidence 1. The Applicant read extensive affidavit evidence purporting to address intensification of the impact and environmental effects of dogs on the Beach, which will be referred to in issues B and C. Evidence on increase in dog numbers 1. Ms Gregory deposed to an increase in her opinion in the number of dogs both on and off-leash at the Beach in the area north from the Victor Avenue steps since 2015. This evidence was echoed by Ms O'Donnell, Mr O'Donnell, Mr Murray, Ms Jasiak, Ms Cordeiro, Mr Bradshaw, Mr Campbell and Mr Mitchell, who also deposed to dogs and their owners congregating at the beach access adjacent to the dog prohibited area (northern), evidenced by way of a photograph taken at 10:30am on 5 June 2020. Mr Mitchell further deposed to observing dog faeces left abandoned in a plastic bag at the beach access BA3, evidence by way of photograph taken at 3:00pm on 22 August 2019. 2. Mr O'Donnell deposed that he has observed up to 100 dogs between the hours of 7:00am and 8:00am during the summer months. Mr Murray, whose property overlooks the Beach, deposed that he has observed up to 300 dogs over the course of a day during the summer months, evidenced by way of a photograph showing a large number of dogs on the Beach taken at 7:30am on 27 December 2020. This evidence is echoed by Mr Campbell. Dog number surveys 1. Mr Walters deposed to utilising a handheld counting device to count the number of dogs on the Beach by clicking the button each time he saw a dog and by trying not to count dogs that he had already seen that day. In using this method, Mr Walters counted 150 dogs in the course of the day on 19 June 2022, 40 dogs between 7:00am and 10:00am on 20 June 2022 and 55 dogs between 7:00am and 10:00am on 21 June 2022. 2. On 28 December 2022 and 26 January 2023 Mr Murray, Ms Jasiak, Mr Walters, Mr O'Donnell, Ms O'Donnell, Mr Bradshaw, Ms Bradshaw, Mr Campbell and Ms Cordiero conducted a dog survey consisting of counting the number of dogs from sunset to sunrise through the use of a hand actuated tally counter to manually record the number of dogs entering the timed off-leash dog access area at half hour increments between 5.30am and 8.00pm. 3. On 28 December 2022 565 dogs were tallied entering the timed off-leash dog access area on-leash and off-leash over the course of the day of which 64 dogs were off-leash outside the permitted time period between 8:00am and 4:00pm. 4. On 26 January 2023 414 dogs were tallied entering the timed off-leash dog access area on-leash and off-leash over the course of the day of which 35 dogs were off-leash outside the permitted time period between 8:00am and 4:00pm. There were no council rangers observed on either day the survey was carried out. Evidence on noise impact 1. Ms Cordeiro and Mr Walters both deposed to a significant increase in the noise of dogs barking since the COVID-19 pandemic commenced in 2020 between the hours of 5:00am and 8:00am, evidenced by way of copies of complaints made by Mr Walters to the Council on 25 February 2020 and 16 March 2020. Conflict with dog owners and personal safety 1. Ms O'Donnell, Mr O'Donnell and Ms Campbell deposed to having had altercations with dog owners while walking on the beach, including being yelled at and spoken to in an abusive manner when requesting that an owner pick up their dog's faeces, or when advising them that their dog was off-leash outside of the off-leash permitted hours. Ms Campbell deposed to such an incident occurring on 5 April 2022 at 10:40am. 2. Mr Murray deposed to having his young children chased and jumped on by off-leash dogs in both dog prohibited areas and off-leash areas on 22 April 2019 at 4:00pm, 21 February 2020 at 12:00pm and 26 April 2020 at 3:50pm, as well as experiencing instances of verbal abuse from owners upon requesting that they control their dogs. This evidence was echoed by Ms Cordeiro on 17 April 2019 at 3:00pm and 26 January 2020. She also deposed to an off-leash dog running into and almost knocking over her elderly mother on the Victoria Avenue steps in January 2019. These instances of physical conflict are echoed by Mr Bradshaw, who deposed to numerous instances of himself, his wife or observing other people being chased, run at or be confronted by off-leash dogs on the Beach and the Victor Avenue steps, one such instance occurring on 18 March 2022 at 12:00pm. 3. Ms O'Donnell deposed to being attacked by a dog on 28 November 2021 at the southern end of the Beach which she reported to Council, following which she has experienced fearfulness of all dogs and discomfort at their proximity. Ms O'Donnell further deposed to experiencing an instance of verbal aggression from a dog owner when requesting that they not walk their on-leash dog in close proximity to her on 3 October 2022 at 8:00am. Non-compliance with Companion Animals Act 1998 (NSW) 1. Mr Walters and Mr Murray deposed to observing dogs as well as dog faeces in Narrawallee Inlet, part of the northern dog prohibited area. 2. Mr Campbell deposed to frequently observing dog faeces left on the Victoria Avenue steps and dogs urinating on the handrail posts during the 2021 to 2022 summer holiday period. 3. Mr O'Donnell deposed to regularly observing dog faeces and plastic bags containing dog faeces abandoned on the Beach and the foreshore reserves, including within the Matron Porter Drive Reserve, where dogs are prohibited. Evidence of environmental impact 1. Mr Walters deposed that vegetation is now damaged in the Matron Porter Drive Reserve, adjacent to the Beach reserve, where an endangered ecological community known as the Bangalay Sand Forest is located. He regularly observed dogs running off-leash within the part of Matron Porter Drive Reserve to the north of the Victor Avenue Steps. Disturbance of shore birds Dog prohibited area (northern) 1. Mr Murray deposed to observing shorebirds including the Sooty Oystercatcher, Pied Oystercatcher and Hooded Plover in the dog prohibited area near the Narrawallee Inlet, documented in photographs taken in October 2020 to January 2021. 2. Mr Campbell further deposed to observing signage that states 'Shorebird nesting area – No Dogs' from September to December each year, fencing off the Narrawallee Inlet area, evidenced by way of photographs taken on 4 October 2022 at 3:17pm and 30 December 2020 at 12:02pm (Ex F). Mr Campbell further documented the presence of Pied Oystercatchers and Hooded Plovers within the nesting area by way of photographs taken in December 2020 between the hours of 10:11am and 5:38pm. He estimates the nesting area to be approximately 950m from the northern boundary of the off-leash dog area on the Beach. Dog prohibited – on-leash transit to timed off-leash area (southern) 1. Mr Murray, Mr Campbell and Ms Campbell deposed to observing shorebirds including the Sooty Oystercatcher on or near the rocks in the dog prohibited on-leash transit to timed off-leash area. Sooty Oystercatchers have been photographed near the Victor Avenue steps by Mr Campbell on 10 May 2022 at 9:57am and 23 May 2022 at 11:34am and by Ms Campbell between March 2021 and September 2021 between the hours of 8:59am and 5:47pm. 2. Ms O'Donnell deposed to observing dogs in the dog prohibited on-leash transit to timed off-leash area chase birds into the bushland adjoining the beach. Mr Walters deposed to observing dogs urinating on the rocks in the dog prohibited on-leash transit to timed off-leash area where he has observed shorebirds foraging. 3. Mr Murray provided an extract from the Attachments of the Ordinary Meeting of Shoalhaven City Council on 28 March 2022 depicting the locations, an aerial image from google maps he marked up with the locations and sights of threatened shore birds at the Beach in the different off-leash and on-leash areas, a copy of the NSW Department of Planning and Environment webpage indicating that the Hooded Plover is critically endangered (accessed 4 March 2023 at 1:38pm) and copies of 'Threatened Species Information' prepared by the NSW National Parks and Wildlife Service (NPWS) concerning the Pied Oystercatcher, Sooty Oystercatcher and Little Tern (Ex F). Timed off-leash dog access area 1. Mr Murray photographed two Pied Oystercatchers on the sand within the timed off-leash dog access area on 26 September 2022 at 11:16am. He deposed it was the first time that he observed Pied Oystercatchers at or near this location. 2. Mr Murray has documented Sooty Oystercatchers by way of photographs taken in the timed off-leash area between July 2020 and December 2021 between the hours of 10:10am and 3:00pm (Ex D) Reduction of shorebird numbers 1. Mr Wright and Ms Jasiak deposed to observing a significant reduction in shorebirds since 2015, particularly the Sooty Oystercatcher and Pied Oystercatcher on the rocks in the dog prohibited on-leash transit to timed off-leash area, in the Narrawallee Inlet on the sandpit and in the tidal flats. Ms Jasiak has also observed a decline in the number of other small birds such as Fairy Wrens in the bushland adjacent to the beach. Mr Wright and Mr Murray have observed a similar decline in Little Terns and Hooded Plovers in the soft sand areas from the timed off-leash dog access area to the northern end of the Beach. Non-compliance with the Decision Dog prohibited area (northern) 1. Mr Bradshaw, Mr Walters and Mr Mitchell deposed to observing dogs on and off-leash in the northern dog prohibited area, evidenced by way of photographs taken at 10:50am on 30 April 2016, 3:50pm on 12 May 2017, 6:20pm on 5 January 2018 and 11:30am on 4 January 2020. Dog prohibited – on-leash transit to timed off-leash area (southern) 1. Ms Gregory, Mr Campbell and Ms Campbell both deposed to regularly observing dogs walking off-leash in the dog prohibited on-leash transit to timed off-leash area zone on the southern end of the beach, which is the main patrolled area utilised for swimming, between Surfers Avenue and the Victor Avenue steps, evidenced by way of photographs and videos taken by Mr Campbell between September 2020 and December 2021 between the hours of 6:40am and 5:43pm. 2. Ms Jasiak deposed to observing dogs off-leash and unattended in the on-leash transit area, documented by way of photographs taken between March 2022 and April 2022. Timed off-leash dog access area 1. Mr Murray further deposed to observing off-leash dogs outside the off-leash permitted hours of 3:00pm to 10:00am as formally adopted by the Council on 9 February 2021. Mr Murray has documented these instances by way of 25 photographs taken between January 2020 to January 2021 between the hours of 8:30am and 5:38pm, 8 photographs in December 2021 between the hours of 8:30am and 3:28pm and on 26 September 2022 at 12:31pm and 3:44pm. Ms Jasiak deposed to observing dogs off-leash on the rocks below the Victoria Avenue steps outside of permitted hours. Ms Jasiak documented these instances by way of photographs taken in April 2022. 2. Mr Murray deposed to reporting his observation of off-leash dogs walking at the Beach outside permitted times for off-leash dog access at 12:32pm to the Council on 26 September 2022, evidenced by way of a screenshot of his mobile phone call log. Evidence on ranger patrols of the Beach 1. Ms Jasiak deposed that over the past 40 years he has visited the Beach, he had only observed a Council ranger patrolling dog walking on one occasion, at which time the ranger issued a verbal warning for non-compliance without issuing a penalty notice. 2. I understand those parts of the evidence summarised above to be relied on in relation to the impacts of the Decision by the Applicant are dealing with: 1. dog numbers based on surveys conducted; 2. failures to have dogs on-leash in the transit zone; 3. non-compliance with off-leash hours and defined off-leash dog area by dog owners; 4. failures of dog owners to pick up dog faeces (breach of Companion Animals Act); 5. negative interactions with witnesses or their family members and dogs on the beach; 6. noise of dogs barking; 7. shorebird disturbance by dogs 8. negative interactions with witnesses and dog owners in relation to conversations about the need to comply with the Council's resolution(s) and responsibilities of owners under the Companion Animals Act. 1. For clarification I note that the failure of dog owners to keep dogs out of the prohibited area in the northern section of the beach and the Inlet area does not relate to the intensification of the use of the southern section of the beach. The failure to abide by the Council's order under the Companion Animals Act in relation to Narrawallee Inlet and the northern part of the Beach in excluding all dogs and evidence about ranger patrols relates to whether in the exercise of my discretion relief ought be granted. These matters will be referred to again in issue C. Applicant's submissions 1. The Applicant accepts that it has the onus of establishing that there has been intensification of use such that development consent under the EPA Act is required by the Council in relation to its determination: South Sydney City Council v Houlakis (1996) 92 LGERA 401 (Houlakis) at 406. 2. The evidence of local residents confirms that intensification of use has taken place over time. Circumstances relied on vary from those considered in Palm Beach. The demonstrated impacts of the greatly increased number of dogs off-leash the subject of evidence were not before the Court in Palm Beach. More dogs have been seen on the beach over time commencing from 2005 and more particularly since 2015 (the first time that the Council allowed dogs off-leash on the beach) and again after the decision on 2 November 2021. The Applicant relied on Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 (Wilson Parking) at [216] finding that an increase in the number of carpark spots was an intensification of a carparking use as an example that increased numbers can demonstrate intensification. The additional population added by the change to dogs on the Beach is an important matter to be considered of whether an existing or continuing use has been intensified, relying on Burwood Council v Iglesia Ni Cristo (No 2) [2019] NSWLEC 159 (Iglesia). Houlakis at 401 was cited in Iglesia at [97] in finding that the greater negative amenity impact of a licensed hotel spread over 24 hours was relevant to the consideration of intensification. The presence of dogs has had adverse environmental and social impacts as outlined extensively in the Applicant's evidence. Council's submissions 1. The Beach has been used by people for public recreation continuously for decades, as identified in the evidence of Ms Cooke and agreed in the SOAF above in [12] at pars 1-22. Such recreational use changes over time as identified in Palm Beach at [135], now including people bringing their dogs to the beach. Dogs have been permitted on the Beach since 2005 as part of its recreational use in conformity with the Companion Animals Act. The reasoning in Palm Beach is a complete answer to the Applicant's case. 2. It is agreed that when s 109 of the EPA Act came into force in 1980 it continued to preserve the lawfulness of the continuing recreational use of the beach when the Shoalhaven Local Environmental Plan 1985 came into force and now under the 2014 SLEP. The continuing use of the beach for the purpose of a recreation area has not been demonstrated to have materially increased, expanded or intensified since the date on which s 109(2) of the EPA Act commenced (now s 4.68(2), see Palm Beach at [185]). There is no evidence adduced about the circumstances of the public recreational use before a certain period. The focus of the Applicant's evidence is the introduction of dogs only not the overall recreational use to which the beach has been put overtime to enable a meaningful comparison. 3. In any event, the Applicant's case on what period intensification of use has occurred over is unclear. 4. The Applicant's witnesses' surveys were carried out in very busy summer holiday periods such as 28 December 2022 and 26 January 2023 (not including Mr Walter's Survey in June 2022) when it is to be expected that large numbers of people will be at the beach. No intensification established 1. Broadly similar issues arose in Palm Beach and it is helpful to consider that judgment in some detail to identify where issues and the factual circumstances overlap. In Palm Beach an applicant challenged two decisions of a local council to, firstly, allow dogs off-leash with area and time restrictions and, secondly, allow on-leash dogs on Station Beach for the first time. Dog access had otherwise been prohibited. The Court found these decisions to give rise to a permitted recreational use which required development consent. No development consent was required by virtue of s 4.68(1) of the EPA Act as the recreational use predated the introduction of the relevant planning controls and was therefore lawful at the time these were introduced. The purpose of the use of Station Beach for a recreational area did not change as a result of the change in the detail of that activity in allowing dogs on the beach, at [135]. That reasoning has been accepted by the parties in this case hence the agreement noted above in relation to issues 4, 5 and 6. 2. In Palm Beach the applicant argued that allowing parts of Station Beach for any use by humans with dogs whether on-leash or off-leash required development consent (putting very simply a somewhat complex argument) before the council could resolve to allow any dog access. As I understand the Applicant's case which evolved somewhat, it does not argue that use by dogs on-leash, which are permitted on the Beach if not in a prohibited area by order under the Companion Animals Act, require development consent. The focus of this case as finally presented is the Council allowing timed off-leash dog access on a defined area of the Beach. 3. The intensification of the recreational use of Station beach as a result of access being permitted for dogs also arose in Palm Beach. Preston CJ of the Court stated at [185]–[192]: [185] The change in the detailed activities of the use of the land enabled by the Council's decisions did not involve an enlargement, expansion or intensification of the use of the land for the purpose of recreation area. The date for determining whether there is an enlargement, expansion or intensification of a use of a building, work or land for a lawful purpose, or an increase in the area of building, work or land actually physically and lawfully used, is the date on which s 109(2) (now s 4.68(2)) of the EPA Act commenced, being 3 February 1986: see Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366 at 371-372, 373 , 375-376; Steedman v Baulkham Hills Shire Council (No 2) at 572; King v Lewis (1995) 88 LGERA 183 at 195, 197, 201; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [22], [27]. [186] Determining whether a use has been enlarged, expanded or intensified requires consideration of the nature and purpose of the use. In this case, the use of the land is for outdoor recreation by the public. In order for there to be any enlargement, expansion or intensification of this use of the land, it is the public's use of the land that must be enlarged, expanded or intensified. [187] The evidence does not establish that the public's use of the land above and below MHWM at Station Beach for the purpose of recreation area has been enlarged, expanded or intensified as a result of the Council's decisions compared to the public's use of that land for that purpose at 3 February 1986, (when s 109(2) commenced), 27 June 2014 (when PLEP commenced) or even immediately before the Council's decisions of 27 August 2019 and 17 December 2019. The evidence does not establish that the number of people using the beach and adjacent waters at Station Beach for outdoor recreation has increased as a consequence of the Council's decisions compared to the number of people who used the beach and adjacent waters for outdoor recreation before the Council's decisions at any of these dates. The evidence does establish that the number of dogs on the beach and in the adjacent waters has increased after compared to before the Council's decisions, but this does not assist in comparing the relative numbers of people using the beach and adjacent waters for outdoor recreation. People with dogs might simply have displaced people without dogs, with the relative numbers of people using the beach and adjacent waters for outdoor recreation remaining the same. [188] Similarly, the evidence that the numbers of dogs in the parts of Station Beach designated as a dog off-leash area or on-leash area has increased after compared to before the Council's decisions does not assist in comparing the area of land actually physically and lawfully used by people for the purpose of recreation area after and before the Council's decisions. People actually physically and lawfully used those parts of Station Beach for the purpose of recreation area, although without their dogs, before the Council's decisions at any of the relevant dates and people are still using those parts of Station Beach for the purpose of recreation area, although many now do so with their dogs as a result of the Council's decisions. The area of land used for the purpose of recreation area remains the same, only the detailed activities of the use of that area of land have changed. [189] The Group's argument that there has been an enlargement, expansion or intensification of the use of the beach and adjacent waters is to a large extent dependent on its earlier argument that the use after the Council's decisions is different in kind to the use before the Council's decisions. The Group had argued that the use of land for exercising dogs, whether off-leash or on-leash, enabled by the Council's decisions, was a use for a different purpose than the use for recreation area that had been carried out before the Council's decisions. Founded on this argument, the Group adduced evidence of the increase in the number of dogs on the beach and in the adjacent waters and the increased area of land within which dogs are present after compared to before the Council's decisions. I have earlier rejected the Group's argument that the use of land enabled by the Council's decisions is for a different purpose than recreation area. Both the use before and the use after the Council's decisions are for the same purpose of recreation area. The details of the activities of the use before and after the Council's decisions may have changed, from people using the beach and adjacent waters for outdoor recreation without their dogs to doing so with their dogs, but that change in the detailed activities of the use does not effect a change in the purpose of the use. [190] As a consequence, it matters not that the number of dogs that people have on the beach and in the adjacent waters may have increased after compared to before the Council's decisions; what matters is whether the number of people using the beach and adjacent waters has increased or the area of the beach and adjacent waters used by people has increased. The evidence does not establish that either the number of people or the area of land used has increased as a consequence of the Council's decisions. [191] An analogy might assist to explain this point. People have used the beach and adjacent waters at Station Beach for outdoor recreation without and with watercraft for nearly a century. In the early decades of the reservation of the land above MHWM for public recreation, the number of people using watercraft may have been comparatively few, and even then the types of watercraft used may have been limited. In more recent decades, the number of people using watercraft and the types of watercraft they use have increased. The use of jet skis, kayaks and surf skis, stand-up paddle boards, windsurfing or kitesurfing in recent decades would have been unknown in earlier times. This change in the ways in which people use the beach and adjacent waters for outdoor recreation, and the equipment they use in doing so, has effected neither a change in the purpose of the use of the land from the purpose of recreation area, nor an enlargement, expansion or intensification of the use of the land for the purpose of recreation area. For the latter to occur, there would need to be an increase in the number of people using the beach and adjacent waters or the area of beach and adjacent waters that people use, not simply people using the beach and adjacent waters for outdoor recreation in different ways and with different equipment. [192] In the same way, the change in the way people use the beach and adjacent waters for outdoor recreation by bringing their dogs with them, while before the Council's decisions they were not allowed to bring their dogs with them, does not effect an enlargement, expansion or intensification of the use of the land for the purpose of public recreation. 1. The Council relied squarely on Palm Beach, submitting that the reasoning in the matter applied directly to this case given the similarity of the facts and legal arguments. As will become clear in my reasoning below I essentially agree. 2. Narrawallee Inlet and the northern section of the beach is declared a prohibited area by the Council and is not the focus of this part of the Applicant's case, which focusses on the southern section of the beach where timed off-leash dog access is permitted, and a transit area for on-leash dogs is allowed in the prohibited southern section which arrangement was varied in the Decision as already outlined above in issue A. 3. As identified in Palm Beach at [185], the date from which to consider whether there has been intensification of use is 3 February 1986. For intensification to be demonstrated there needs to be a factual baseline established for comparative purposes and arguably none is provided by the Applicant's evidence. The period over which intensification was alleged was not precisely defined by the Applicant's counsel, with various dates referred to being 2005 (dogs allowed on-leash on the Beach), 2015 (dogs allowed off-leash on the Beach) and since November 2021 (date of the Decision). No real attempt to create a factual baseline was made beyond broad statements of changes over time in the Applicant's evidence. Comparisons of use of the Beach by people with dogs at different times was not provided. This is not a criticism of the Applicant's witnesses. General unsupported statements by lay witnesses some of whom have been using the Beach for recreation since the 1960's and 1970's that dog numbers had increased over time does not assist in undertaking the necessary comparison. It may very well be difficult to obtain such historical evidence. Nevertheless without it no relevant comparison can be made in order to determine intensification. Identification of a historic baseline use is lacking in evidence. For that reason alone the Applicant cannot succeed in its intensification argument. 4. As identified in Palm Beach in [191] intensification must also be considered in light of the recognition that recreational use by humans will vary over time. That recreational use includes people bringing dogs onto the Beach as a public place as identified in Palm Beach at [191]. The role of companion animals is expressly considered and regulated in the Companion Animals Act. 5. As also identified in Palm Beach at [186], the use of the beach is outdoor recreation by the public. It is that use by the public which must be enlarged, expanded or intensified in order for intensification of use to be proved. 6. In Palm Beach at [187] Preston CJ found that the evidence did not establish that the number of people using the beach after the decisions of the relevant council to allow dogs on Station Beach increased. The evidence did establish that more dogs came onto the beach after the decisions but that did not enable any conclusion to be drawn about numbers of people. The Applicant's argument here that increased dogs means increased humans on the beach was rejected in Palm Beach at [187]. The same finding for the same reasons applies in these circumstances. 7. The Applicant's witnesses' surveys of dog numbers summarised above in [62]-[65] were carried out in very busy summer holiday periods, on 28 December 2022 and 26 January 2023, except for the surveys of Mr Walters in June 2022, when it is to be expected that large numbers of people will be at the beach. Such evidence is not persuasive of a change in people numbers over time. 8. The Applicant does not rely on an expansion of the area of use by dog owners/handlers and their dogs, unlike in Palm Beach as addressed in [188]. 9. The Applicant sought to differentiate its evidence from that in Palm Beach by alleging intensification of use arose from members of the public bringing their dogs off-leash on the beach not in conformity with the controls in the Companion Animals Act implemented by the Decision. The attendant negative environmental impacts were dogs chasing shorebirds summarised above in [74]-[78], noise from dogs barking summarised above in [66] and negative social impacts and safety concerns as attested to by the Applicant's witnesses above in [67]-[69]. The question that arises is whether some of the possibly inevitable impacts of having dogs off-leash on a beach with some being inadequately controlled by some dog owners can found a finding of intensification of use and the answer must be no as any impact arises from the same use of the Beach for public recreation. Once again no baseline exists by which to assess such impacts. Such evidence is more relevant to the assessment of environmental impact, which I consider in the next section of the judgment. 10. I accept as found in Iglesia that amenity impacts may be a relevant consideration depending on the circumstances. That there have been unpleasant social interactions between dog owners and non-dog owners, instances of dogs chasing and jumping on people and one instance of a dog attack according to one of the Applicant's witnesses, does not mean that the use of the beach for recreational purposes has been altered or intensified. 11. I have addressed intensification in the context of Palm Beach where dogs were being permitted on Station Beach for the first time, and have considered the Applicant's evidence which addresses dogs off-leash generally. As already identified in relation to issue A however the Applicant is seeking to challenge the most recent decision of the Council not all of the decisions of the Council which have lead to dogs being permitted on the Beach off-leash. Strictly speaking therefore assessment of intensification should focus on what was permitted by that Decision in comparison to what has occurred previously. I accept that it is no doubt difficult to do but that finding must be made in light of the case that the Applicant has brought. That is another reason why the Applicant cannot succeed on intensification of use. 12. Intensification of use must be considered in relation to the relevant circumstances before the Court. Reliance on entirely different circumstances in Wilson Parking is of no assistance in my analysis. 13. I observe that the Companion Animals Act regulates the behaviour of dog owners in public places under Pt 3 Responsibilities for control of dogs and that is arguably the relevant legal context in which to consider the majority of the negative impacts of dogs attested to by the Applicant's witnesses. Owner is defined in s 7. That Act seeks to regulate most of the behaviour the subject of complaints of the Applicant's witnesses in that the Act creates an offence of failing to keep dogs under effective control on a leash in a public place (s 13), failing to comply with orders made under the Companion Animals Act in failing to comply with restricted timing and areas of off-leash dog access and failing to keep dogs out of prohibited areas (s 14), and failing to properly dispose of dog faeces, including in a rubbish receptacle designated for that purpose by a council (s 20). If a dog attacks a person unprovoked the dog owner commits an offence (s 16). The Council has a general duty under s 6A to promote awareness of the requirements of the Act concerning dog ownership in its local government area (LGA), and must take appropriate steps to ensure that it is notified of the existence of all dangerous, menacing and restricted dogs ordinarily kept in its LGA. An onus is placed on an 'official person' defined as a policy officer or member of the RSPCA to notify a council of a dog they consider is a threat to the public and any incident of unprovoked biting or attack by a dog, under s 6B. This is an important legal framework implemented by the NSW Parliament to regulate ownership of companion animals in NSW. 14. The Applicant is unsuccessful in establishing that intensification of the recreational use of the beach has taken place and has not therefore demonstrated that development consent was required under Pt 4 of the EPA Act at the time the Decision was made. C. Relief (issues 10, 2) 1. The Council accepts that the Decision to amend the boundary of the off-leash area constituted the approval of an activity to which Pt 5 of the EPA Act applies (see also Palm Beach at [248]). The Council was required under s 5.5(1) to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. The Council accepts that no REF was considered by the Council when the Decision was made so that s 5.5 of the EPA Act was not complied with in November 2021. It relied on evidence which it submitted would lead the Court to conclude that the relief sought by the Applicant was not warranted, as a reasonable assessment of environmental impacts occurred with the preparation of the REF dated 28 January 2022. The Applicant disputes that the REF is an adequate assessment of environmental impacts. 2. One of the bases the Applicant relied on to argue that the environmental impact of the dogs on the Beach as a result of the Decision had not been assessed adequately in the REF was that the Council was not adequately controlling the dogs that were on the Beach and the impact of that failure was not assessed. To that end the Applicant tendered Council documents produced pursuant to a notice to produce for inspection dated 13 April 2023. The terms of the notice to produce state as follows: You are required to produce the following documents or things for inspection by the Applicant by 28 April 2023: 1. All documents or records, including, but not limited to, in draft and/or final form, letters, emails, memos, plans, drawings, diagrams and/or hand written notes: a. Between 1 January 2014 and 30 June 2015 recording or otherwise evidencing the number and frequency of Council rangers who patrolled Narrawallee Beach; b. Between 26 December 2020 and 2 November 2021 recording or otherwise evidencing the number and frequency of Council rangers who patrolled Narrawallee Beach; c. Between 1 December 2022 to 30 January 2023 recording or otherwise evidencing the number and frequency of Council rangers who patrolled Narrawallee Beach; and d. Between 1 January 2014 and 30 June 2015, and between 26 December 2020 and 2 November 2021, and between 1 December 2022 to 30 January 2023, recording or otherwise evidencing any dog incidents at Narrawallee Beach attended to by any Council rangers who patrolled Narrawallee Beach. Dog incidents include incidents where a dog rushes at, attacks, bites, harasses, or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal. 1. The table (marked MFI 2) below is the Applicant's summary of service and animal management dog request records produced by the Council in response to the notice to produce for inspection dated 13 April 2023. I note the table extracted below is the second version of MFI 2 provided by the Applicant. Service Request No. and EB reference Date and time of complaint Nature of Complaint and Ranger Patrols identified in that document 627745 1 March 2021 at 12:57pm The customer observed 2 large dogs running on South Narrawallee Beach but could not see the if people were with the dogs. EB: 970-974 Council rangers attended the southern end of Narrawallee Beach at 1:55pm on 1 March 2021. 634104 25 April 2021 at 8:59am The customer observed that there was a kelpie running on the beach through the surf just off of the reserve, north of the stairs. EB: 975-978 At 1:34pm on 25 April 2021, Council rangers patrolled Narrawallee Beach. 647084 30 August 2021 at 9:23pm The customer reported a dog attack on his grandson at the Southern end on Narrawallee Beach (in the dog prohibited area) at 3:15pm on 28 August 2021. EB: 979 – 983 In this document, there is no reference to ranger patrols. 647996 6 September 2021 at 9:08am The customer observed dogs being allowed off leash when leaving the beach, around coffee van and running around cars and causing chaos, nearly knocking over residents. Owners are nearby and are leaving dog poo on the beach/reserve. EB: 984 – 988 At 7:45am on 8 September 2021, Council rangers conducted a patrol of Matron Porter Drive, Narrawallee in th[e] vicinity of the coffee van. 654287 28 October 2021 at 6:38am The customer witnessed a dog attack on Narrawallee Beach on Thursday 7 October 2021 at 4:15pm. EB: 989 – 995 In this document, there is no reference to ranger patrols. The customer observed three off-leash dogs with the owner at the beach most afternoons around 3pm. Council patrolled beach at the following times: RNG22-00974 2 December 2022 at 3:15pm • At 10am on 5 December 2022. EB: 996 – 999 • On 9 December 2022. • At 12:30pm on 10 December 2022. • At 11am on 11 December 2022. RNG22- 01015 6 December 2022 at 10:58am The customer reported a dog jumped up and attacked someone. EB: 1000 – 1004 In this document, there is no reference to ranger patrols. RNG22-01063 10 December 2022 at 6:18pm The customer reported a stray dog was contained and ready to be picked up. EB1005 – 1008 In this document, there is no reference to ranger patrols. RNG22-01092 11 December 2022 at 8:37am Stray dog contained for pick up by Council. EB: 1009- 1013 In this document, there is no reference to ranger patrols. 1. The Applicant issued a subpoena to produce dated 2 May 2023 to the Council. The schedule to the subpoena stated as follows: The documents or things you must produce are as follows: 1. Any pre-works shorebird survey carried out by a Council Environmental Assessment Officer or other suitably qualified person as referred to in the "Environmental Impact Assessment Part 5 Assessment EP Act 1979" (REF), at page 445 in CL22.158 - Attachment 1 of the business papers to the Ordinary Meeting of Monday 28 March 2022 as attached to this Subpoena (Attached Extract). 2. Records of all Council Ranger inspections for monitoring dogs on Narrawallee Beach from 28 March 2022 to date of Narrawallee Beach, as referred to in the Attached Extract. 3. Records of any "liaison" or consultation between Council's Environmental Services and the National Parks and Wildlife Service South Coast Shorebirds Recovery Program Coordinator, in relation to the management of dogs on Narrawallee Beach from 28 March 2022 to date, as referred to in the Attached Extract. 4. Any record of any revision of mitigatory measures to ensure threatened migratory shorebirds are adequately protected, from 28 March 2022 to date, as referred to in the Attached Extract. 5. Any record of any fencing of nest sites to clearly indicate the presence of nesting seabirds, from 28 March 2022 to date, as referred to in the Attached Extract. 6. Any record of the consideration by Council (or a Council officer with delegated authority in relation to the decision) of the REF for any decision by or on behalf of Council purporting to authorise the present off- leash use and associated on-leash access of Narrawallee Beach which was purportedly authorised by Council Resolution CL21.207 of 2 November 2021. 1. The documents produced under the subpoena to produce dated 2 May 2023 were: 1. Summary sheet of NPWS patrols of shorebird beach nesting activities in Narrawallee Spit Prohibited (northern dog prohibited area) between 27 September and 7 December 2022; 2. "Record of liaison with NPWS" being a spreadsheet capturing data from surveys carried out in Narrawallee Inlet by the NPWS from May to December 2022 (northern dog prohibited area); and 3. Records of council ranger inspections of the Beach from 28 March 2022 to 3 May 2023 (Tab 3 and 5 of the Applicant's bundle of documents). 1. The record of liaison captures data about the presence of shorebirds in Narrawallee Inlet, part of the northern dog prohibited area. The data also identifies the presence of any threats (columns for inundation, fox threat, dog threat, human threat, 4WD threat, avian threat) to the shorebirds in Narrawallee Inlet and any threat management activities undertaken (columns for fencing, electric fencing, information signs, community liaison, nest cage and chick shelters). In the dog threat column "null" was recorded for each survey entry. In the fencing column "null", "erected" and "in place" was recorded at different survey dates. 2. The table below (marked MFI 3) is the Applicant's summary of the records of ranger inspections from 28 March 2022 to 3 May 2023. Month Dates which Council rangers patrolled Narrawallee Beach Total number of days in that month 1. March 2022 - 0 2. April 2022 - 0 3. May 2022 10, 11, 14 3 4. June 2022 - 0 5. July 2022 - 0 6. August 2022 1, 16 2 7. September 2022 7,8, 25 3 8. October 2022 11, 14, 18 3 9. November 2022 1, 3, 11, 28 4 10. December 2022 7 1 11. January 2023 2, 15, 25, 31 4 12. February 2023 2, 3, 6, 7, 16, 18, 20, 23, 27 9 13. March 2023 9, 20, 21, 23, 31 5 14. April 2023 3, 9, 16, 17, 20, 23, 26 7 15. May 2023 2 1 1. The records of council ranger inspections are spreadsheets with columns to record when a council ranger issued a verbal caution, a warning, or a penalty notice regarding dog access on the Beach. Each of these columns recorded zero instances where a council ranger undertook that action. In a column headed "education" to a member of the community, 16 instances were recorded. In a column headed "compliant dogs" observed on the Beach, 10 dogs were recorded over the period 28 March 2022 to 3 May 2023. In a column headed "non-compliant dogs" on the Beach, three were recorded. Foreshore Reserves Policy 1. Relevant provisions of the Council's Foreshore Reserves Policy adopted 29 June 2004 and reviewed 1 December 2020 are extracted below. 3. PROVISIONS … 3.3. Protection (buffer) zones Healthy, intact foreshores are necessary for the protection of private property from extreme weather/climatic events as was seen in a number of locations including Mollymook and Collingwood Beach in 1974 and as is currently evident through natural processes at Culburra and Currarong. Under storm wave attack the sand stored in our dune systems is transported offshore where it forms bars across which waves break, dissipating their energy before reaching the shoreline. Lack of a healthy store of sand in a dune system exacerbates erosion at the shoreline and increases the distance inland that waves can penetrate. Foreshore reserves therefore play a critical role in protecting property from the threat of erosion from ocean storms, flooding following heavy rains and stream bank erosion along rivers and creeks. Many dune systems and foreshores have been weakened through development and vegetation clearing. This policy aims to highlight the importance of these systems in storm-proofing urban areas. Recognition of the buffering capacity of foreshore reserves will facilitate responsible collaborative management of the Shoalhaven's foreshore reserve network to ensure the integrity of these protection zones is maintained to a high level. Given the scale of impacts on foreshores across the City, it is appropriate to raise public awareness of the important function of these areas through public education as discussed above. Policy Statement Council shall further its collaborative management approach through appropriate public awareness-raising of the buffering (protective) role of foreshore reserves to ensure improved levels of protection for private property. Council's preference is for approved remediation of foreshore buffer zones that have been malicious damaged by an identified person(s) prior to the use of available legal provisions. … 3.18. Shorebirds Shoalhaven's foreshore reserves are important habitat of the beach nesting Hooded Plover (Thinornis rubicollis) (endangered), Little Tern (Sterna albifrons) (endangered) and Pied Oystercatcher (Haemotopus longirostris) (vulnerable), and the Sooty Oystercatcher (H.fuliginosus) (vulnerable), which prefers to nest on offshore islands. Major declines in the population and distribution of all four species are attributed to a combination of natural and human-induced threats, including habitat loss, flooding of nests, accidental trampling by humans and off road vehicles. Shorebird eggs and chicks are also highly susceptible to predation by both native (e.g. Australian Raven and Silver Gull) and introduced (e.g. Red Fox, cat and domestic dog) species. A South Coast Shorebird Recovery Program has been underway for a number of years. The program involves monitoring breeding activities and protection of important areas through fencing, fox control, signage, partial temporary closure of beaches, and restrictions on the walking of dogs. The program also aims to raise public awareness of the conservation status, recovery efforts, habitat importance and the biology of shorebirds through publicity, media and active community involvement. Policy Statement Council will work with the Office of Environment and Heritage on recovery programs for the protection of threatened species and their habitats. Review of Environmental Factors 1. Relevant sections of the REF dated 28 January 2022 are extracted below. 1. INTRODUCTION This document provides the environmental assessment for a dog off-leash area and associated works in Narrawallee, in line with requirements for such activities under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). It relates to the impact of the proposal on the community and the environment, specifically regarding threatened shorebirds and migratory birds known or predicted to occur in the Narrawallee area. The use of parts of Narrawallee Beach for dog walking, whether on-leash or off-leash, and for dog walking trials constitutes an "activity" under Part 5 of the EP&A Act. Stakeholder engagement, including the NSW National Parks and Wildlife Service and broader community was considered in the preparation of this assessment. … 2. PROPOSED ACTIVITY 2.1. Location Narrawallee Beach is an open-coast beach located in the township of Narrawallee, 3 kilometres north of Ulladulla. The beach is approximately 1.4 kilometres in length. Narrawallee Creek Nature Reserve and Narrawallee Inlet are located approximately 1 kilometre and 600 metres, respectively, north of the off-leash area of Narrawallee Beach (see Figure 1 below). Threatened shorebirds are known to nest in these areas. 2.2. Proposal The subject site assessed in this Review of Environmental Factors (REF) is shown in Figure 3. The proposal includes: The on-leash transit area between Surfers Avenue and Victor Avenue access points where dogs can be walked on-leash to access the timed off leash area to the north. The timed off-leash dog area, where dogs can be off-leash during off-peak times (4pm-8am Australian Eastern Daylight Saving Time, 3pm-10am Australian Eastern Standard Time) to limit impacts to other beach users. The dog prohibited area between Narrawallee Creek Nature Reserve and the timed off-leash area which provides a buffer area to mitigate impacts of off-leash dogs to shorebird habitat at the Narrawallee Creek Inlet and Nature Reserve. The installation of signage as part of the proposed activity will include replacing signs on existing posts. No new post will be installed as part of the activity. 2.3. Historical context Discussions around a dog off-leash area at Narrawallee Beach began in 2000, whereby the entirety of Narrawallee Foreshore Reserve and Beach was recommended for dog off-leash use before 8am and after 6pm. Significant feedback was received that opposed the designation of Narrawallee as a dog off-leash area, resulting in proposed off-leash area being abandoned. As part of an amendment to Council's historical Off-Leash Exercise Areas for Dogs Policy, which created a new draft Policy being the Access Areas for Dogs Policy, Narrawallee Beach and reserve was again recommended for inclusion as "all-leash access". After community consultation, Council resolved in 2005 under the first Access Areas for Dogs Policy to adopt a number of dog-prohibited areas for inclusion into the new Policy, including Narrawallee Beach and reserve from Narrawallee Creek to Surfers Avenue excluding the area between north of Victor Avenue to the unnamed Island which became an on-leash area. From July 2015, a number of trials and changes occurred at the dog access area at Narrawallee Beach with summer and winter time amendments, but the most significant being the designation of a ~540 metre stretch of the beach as an off-leash dog area, from the unnamed island to the rocks at the Victor Avenue access point (BA8 to BA2 in Figure 2 and Figure 3). On-leash access was allowed to access the off-leash area from the southern-most beach access point being Surfers Avenue. In August 2019, Council resolved a six-month trial for dog access to the off-leash area through the prohibited area from Surfers Avenue via the Shoalwater accessway, located at the time adjacent to the escarpment. However, in December 2019, Council resolved to commence a twelve-month trial to redesignate a 10m wide strip between the Surfers Avenue unformed beach access and the Victor Avenue stairs to the north for dog on-leash access to the off-leash area. The twelve-month trial concluded in December 2020, with a report presented to Council's Strategy & Assets Committee in February 2021 which summarised the community feedback and outcome of the twelve-month trial. During the trial period (from December 2019 to December 2020), Councillors and Council staff had various liaisons with local individuals and interest groups in relation to the trial. During the trial period, Council staff received correspondence from approximately 100 individuals and groups in relation to the trial and its operations (Section 6.4). Based on the trial and feedback received, Council resolved to reinstate the southern boundary of the off-leash area in line with the Victor Avenue steps (BA2), retain the northern boundary (BA8), and provide new signage communicating these changes in 17 access points in the Narrawallee Beach and Inlet area. A timeline for permitted dog access on Narrawallee Beach is provided in Table A1 in Appendix 1. … 2.4. Environmental Safeguards and Measures to Minimise Impacts A dog prohibited buffer area between the dog off-leash area and shorebird nesting areas to the north will be maintained, including approximately 600 metres from Narrawallee Inlet and 1 kilometre from Narrawallee Creek Nature Reserve. The on-leash transit area between Victor Avenue and Surfers Avenue at the south end of Narrawallee Beach will mitigate the impact of the off-leash area on members of the public using this popular part of the beach. Signage clearly detailing the transit areas, off-leash area and dog prohibited areas will ensure dog owners are aware of these restrictions. New signage will utilise existing posts only. No digging or other on-ground work is required. The off-leash area is limited to off-peak times (4pm-8am Australian Eastern Daylight Saving Time, 3pm-10am Australian Eastern Standard Time) to limit impacts to other beach users. A Council Environmental Assessment Officer or other suitably qualified person shall undertake pre-works shorebird surveys prior to the commencement of any work. Regular monitoring by Council Rangers will include a minimum of one inspection every two days (during off-leash hours) to enforce compliance, and to provide additional assurance especially to monitor for the presence of dogs in the prohibited area at Narrawallee Inlet and to determine if on-leash transit areas are being appropriately utilised. The presence of Council Rangers will enable the provision of education to the community. A penalty infringement notice will be issued, following an initial caution, for any repeat offenders observed during regular inspections. Educational signage regarding the presence of and threat of dogs on threatened shorebirds will be installed at access points to Narrawallee Inlet and Narrawallee Creek Nature Reserve. Plastic bags and rubbish bins will be provided at main access points to the off-leash area for collection and disposal of dog faeces. Council's Environmental Services will liaise with National Parks and Wildlife Service (NPWS) South Coast Shorebird Recovery Program Coordinator on a regular basis, including key breeding season times. This will enable the provision of further subject matter expertise and a regulatory influence from NPWS, to inform adaptive management of controls. Mitigation measures will be revised, as required, to ensure threatened and migratory shorebirds are adequately protected. Council will collaborate with NPWS South Coast Shorebird Recovery Program Coordinator regarding any revised mitigation measures. Additional measures to be considered will include, reducing the northern boundary of the off-leash area in response to seasonal shorebird nesting sites, increased presence of Council Rangers at key times, and fencing nest sites to clearly demarcate the presence of nesting shorebirds. 2.5. Limitations This REF has been informed by: Database searches; NSW Bionet Birdata (including Birdlife Australia's shorebird monitoring program survey data) Council's GIS Enquiry Aboriginal Heritage Information Management System (AHIMS) Consultation with NPWS Shorebird Ranger Consultation with Council's Rangers Onsite surveys for the presence of Aboriginal objects on 29 July 2021 and a survey for presence of threatened shorebirds on 16 December 2021. Based on the nature of the site and proposed activity, the above listed habitat assessment, literature review and database searches were considered an appropriate means of assessing the likelihood of species presence and potential impact. 3. EXISTING ENVIRONMENT Narrawallee Beach is an open-coast beach located north of Ulladulla, and is approximately 1.4 kilometres long. The beach is flanked by an intertidal rock shelf at the southern end (Surfers Avenue), and the sandstone headland of Preservation Rock and Narrawallee Inlet at the northern end. Sandy beaches, such as Narrawallee Beach, are key foraging and roosting sites for shorebirds and seabirds. The subject site has records of threatened shorebirds including Sooty Oystercatcher, Pied Oystercatcher, Eastern Hooded Dotterel, Eastern Curlew and Little Tern, and provides habitat for 13 migratory shorebirds recorded onsite or within the locality. Optimal shorebird breeding and foraging habitat is approximately 600 metres to the north of the restricted dog access area and includes Narrawallee Inlet and Narrawallee Creek Nature Reserve. In the context of this environmental assessment the area to be affected by the proposed activity: is mapped as low risk for acid sulphate soils is subject to undetermined Aboriginal Land Claims. is known to contain threatened species listed under the NSW Biodiversity Conservation Act 2016 or the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. Species and EEC are listed in Section 7 and shown in Error! Reference source not found [sic] and Figure 5. is not mapped on the Biodiversity Value Map (BV Map) which identifies land with high biodiversity value as defined by the Biodiversity Conservation Regulation 2017, however a small patch to the north at Narrawallee Inlet is mapped under the BV map as Protected Riparian Land is not an Aboriginal Place in the context of the NSW National Parks and Wildlife Act 1974. … 6. CONSULTATION … 6.3. Council Departments This REF has been prepared by Council's Environmental Assessment Team in consultation with Council's Ranger Services and Social Infrastructure Planning Team. Ranger Services have confirmed a monitoring presence will continue at Narrawallee Beach, including a minimum of one inspection every two days, and can respond to any community concerns within one day. The mitigation measures in section 2.4 have been developed in accordance with this consultation. 6.4. Community Council has received correspondence from over 100 individuals and groups in relation to the Narrawallee Beach off-leash dog area. Submissions received were both in support and raised concerns with the trial, including issues such as; Signage – confusion regarding the transition zone between Surfers Avenue and Victor Avenue, inconsistent or confusing messaging, lack of signage. Compliance – ranger presence, dog off-leash activity outside of designated hours, people not picking up after their dogs. User conflict and safety – conflict between beach-users with and without dogs, conflict between dogs and native fauna. The mitigation measures in section 2.4 have been developed in accordance with this consultation, notably; Increased ranger presence. Increased and improved signage. ~600 metre dog prohibited buffer between off-leash area and threatened shorebird nesting sites. The provision of plastic bags and rubbish bins for dog faeces. Off-peak time restrictions to reduce conflict with other beach-users. Liaison with NPWS South Coast Shorebird Recovery Program Coordinator. 7. ASSESSMENT OF LIKELY ENVIRONMENTAL IMPACTS … 7.3. Biodiversity Conversation Act 2016 and Environment Protection and Biodiversity Conservation Act 1999 – Listed Fauna This section has been informed by desktop analysis (including databases searches of Bionet, Birdlife Australia's Birdata, the EPBC Protected Matters Search Tool and Council's GIS Enquiry), consultation with relevant agencies including NPWS (detailed in section 6), and a site inspection conducted on 16 December 2021 by Council's Environmental Assessment Officer. Shorebirds and potential impact to shorebird habitat at Narrawallee Creek Inlet and Nature Reserve are the focus of this assessment regarding threatened fauna species. Narrawallee beach including the off-leash and transit area may provide limited foraging resources. The impact of the proposal on these areas is considered to be negligible. Other fauna species are not considered to utilise habitat with the subject site, or are not considered to be at risk of impact by the proposal. … BC Act-listed threatened shorebirds recorded within the subject site include Eastern Hooded Dotterel, Little Tern, Pied Oystercatcher and Sooty Oystercatcher (Figure 4). Birdata also includes records of EPBC Act-listed Eastern Curlew at Narrawallee Inlet from 2015 and prior. All species listed in Table 2 have potential to occur within the subject site. Whilst known nesting sites are limited to the Narrawallee Inlet and Narrawallee Creek Nature Reserve to the north, foraging may occur along Narrawallee Beach. During the site inspection in preparation for this REF, three Sooty Oystercatchers were observed foraging on the rocks at Narrawallee Inlet. … The Department of Planning, Industry and Environment notes "Disturbance of nesting shorebirds and direct predation of eggs and chicks by domestic dogs" as a threat for all threatened shorebirds known to occur at the subject site (2021, 2017). In a review of the impacts of dogs on nesting shorebirds, Maguire (2018) details the following impacts: Disturbance: "chasing and the unpredictable movement, proximity and speed of unrestrained dogs" can lead to the prolonged absence of adult shorebirds from the nest. Egg predation. Egg crushing. Chick predation. Maguire (2018) concludes that, while dog-free areas are the most effective at protecting shorebirds, this must be combined with alternative off-leash areas to promote greater compliance in more environmentally sensitive areas where dogs are prohibited. … 7.5. Test of Significance (5-Part Test) Section 1.7 of the EP&A Act 1979 applies the provisions of Part 7 of the NSW Biodiversity Conservation Act 2016 that relate to the operation of the Act in connection with the terrestrial and aquatic environment. Each are addressed below. Part 7 Biodiversity Conservation Act 2016 Based on the habitat of the site (beach and frontal dunes) BC Act listed threatened species or endangered ecological communities that have the potential to occur at the site are: Sand Spurge Chamaesyce psammogeton. Shorebirds: o Eastern Hooded Dotterel Thinornis cucullatus cucullatus. o Little Tern Sternula albifrons. o Pied Oystercatcher Haematopus longirostris. o Sooty Oystercatcher Haematopus fuliginosus. o Lesser Sand Plover Charadrius mongolus. o Greater Sand Plover Charadrius leschenaultii. Endangered ecological community Bangalay Sand Forest in the Sydney Basin and South East Corner Bioregions. … Part 1: In the case of a threatened species, where the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is to be placed at risk of extinction. Shorebirds – Eastern Hooded Dotterel, Lesser Sand Plover, Greater Sand Plover, Little Tern, Pied Oystercatcher, Sooty Oystercatcher The potential for impact to these species during signage installation works is considered unlikely due to the following factors: Works (signage installation) to occur during the nesting periods for threatened shorebirds (generally November to February) have minimal impact and are highly unlikely to cause any disturbance. A Council Environmental Assessment Officer or other suitably qualified person shall undertake pre-clearance surveys prior to works commencing. If any of these species are detected in the vicinity of the works, works will stop immediately and not resume until the bird has vacated the site of its own accord. If a nest or nesting birds are detected, works will cease, and mitigation measures will be adapted in consultation with the NPWS Shorebird Recovery Coordinator (or similar expert), to minimise risk of disturbance to the birds and ensure their protection. Narrawallee Beach has already been used as an off-leash dog area for several years, and so is not considered a viable nesting location for shorebirds. Threatened shorebirds are known to nest in the Narrawallee Inlet area, with the current off-leash dog area. The extension of this area away from the Inlet (south) will therefore not have a significant impact on nesting threatened shorebirds. Maguire et al. (2018) note the positive impact of diverting dog walkers to specific areas, as dogs are then less likely to be present in more sensitive, prohibited areas. Foraging habitat is also critical in the life cycle of shorebirds. Foraging habitat for shorebirds along Narrawallee Beach will be reduced by the presence of dogs within the southern portion of the beach however more optimal areas of foraging habitat to the north at the inlet and nature reserve will be unaffected. Mitigation measures detailed in Section 2.4 are expected to avoid impacts to these optimal areas of foraging habitat. As such, the proposed activity is unlikely to have an adverse effect on the life cycle of the species such that a viable local population of the species is to be placed at risk of extinction. A species impact statement (SIS) or entry into the BOS is not required. … 7.6. Assessment Against EPBC Significant Impact Criteria Seven EPBC listed threatened species are predicted or known to occur within the subject site (Table 2). Twenty-nine migratory species are predicted to occur within the subject site (Table 3). The Commonwealth Significant Impact Guidelines 1.1 details criteria to assess whether the proposal is likely to have a significant impact to matters of national environmental significance (MNES), and whether referral to the Commonwealth Department for further assessment and approval is required. Numenius madagascariensis Eastern Curlew has been recorded in the subject site and is listed as critically endangered under the EPBC Act. Calidris canutus Red Knot has been recorded within the locality and is listed as endangered under the EPBC Act. Eastern Curlew is a northern hemisphere breeding migratory shorebird that distributes widely along eastern Australia and New Zealand to forage outside of breeding seasons and prior to breeding maturity. Red Knot is a northern hemisphere breeding shorebird that distributes widely to forage outside of breeding seasons around Australia and visits most continents (Birdlife Australia). Optimal foraging habitat for these species is restricted to the Narrawallee Inlet and Narrawallee Creek Nature Reserve in the northern extent of the subject site. Mitigation measures, including a 600m buffer between restricted dog access and these areas, as well as regular Ranger patrols and signage (Section 2.4) are expected to avoid impacts from the proposal to these areas and to these species. While foraging habitat within the southern portion of Narrawallee Beach will be modified by the restricted dog access, this is not expected to significantly reduce foraging resources for these species such that the life cycle of the species would be impacted. The proposal is not expected to introduce any invasive species or disease to potential habitat for these species. As such, the proposed dog access as detailed in Figure 3 is unlikely to have a significant impact on these species. Based on the review above, the proposal will not result in the below factors listed in the EPBC Significant Impact Guideline: Lead to a long-term decrease in the size of a population. Reduce the area of occupancy of the species. Fragment an existing population into two or more populations. Adversely affect habitat critical to the survival of a species. Disrupt the breeding cycle of a population. Modify, destroy, remove, isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline. Result in invasive species that are harmful to a critically endangered or endangered species becoming established in the endangered or critically endangered species' habitat. Introduce disease that may cause the species to decline. Interfere with the recovery of the species. Thinornis cucullatus cucullatus Eastern Hooded Dotterel has been recorded in the subject site and is listed as vulnerable under the EPBC Act. Charadrius leschenaultia Greater Sand Plover and Limosa lapponica baueri Nunivak Bar-tailed Godwit is predicted to occur within the locality and is listed as vulnerable under the EPBC Act. Eastern Hooded Dotterel is reported to be as rare as 64 individuals within NSW and 5,000 individuals as a total population across Australia (OEH Threatened Species Profile). The species' known northern limit is Jervis Bay making any population that occupies the subject site significant in terms of proximity to the northern extent of the species distribution. Any impact leading to reduction in the population of this species would be significant. … With regard to life cycle, all species listed in Table 3 are migratory species breeding in the northern hemisphere, other than the Little Tern. While breeding habitat for these species will not be impacted foraging habitat is important to the lifecycle of migratory shorebirds and is critical to these species ability to make the flight to northern hemisphere breeding grounds. Dog access onto Narrawallee beach will reduce foraging habitat within the southern portion of the beach were restricted access is permitted (Figure 3). Provided mitigation measures (Section 2.4) are implemented, the impact of the proposal to areas of optimal foraging habitat approximately 600 metres to the north, at Narrawallee Inlet and Narrawallee Creek Nature Reserve is expected to be avoided. Reduction/modification of foraging habitat within areas of restricted dog access is not expected to disrupt the life cycle of migratory shorebirds. Mitigation measures detailed in Section 2.4, including a minimum of 600m buffer as well as signage and regular monitoring by Council Rangers will ensure impacts to optimal breeding habitat for Little Tern, demonstrated by records (Figure 4) at Narrawallee Inlet and Narrawallee Creek Nature Reserve are avoided. Impact to potential foraging habitat resulting from restricted dog access is not expected to impact Little Tern such that the life cycle of the local occurrence of the species will be affected. … 7.7. Clause 228 Matters of Consideration Clause 228(2) of the Environmental Planning and Assessment Regulation 2000 lists the factors to be considered when consideration is being given to the likely impact of an activity on the environment under Part 5 of the EP&A Act. The following assessment deals with each of the factors in relation to the proposed activity. … 8. DETERMINATION This Review of Environmental Factors has assessed the likely environmental impacts, in the context of Part 5 of the Environmental Planning and Assessment Act 1979, of a proposal by Shoalhaven City Council to permit dogs off-leash on a stretch of Narrawallee Beach, including the associated sign installation. Shoalhaven City Council has considered the potential environmental effects of the proposal and the effectiveness and feasibility of measures for reducing or preventing detrimental effects. It is determined that: 1. The proposed safeguards identified in the report (section 2.4) shall be adopted and implemented. 2. It is unlikely that there will be any significant environmental impact because of the proposed activity and an Environmental Impact Statement is not required for the proposed activity. 3. The proposed activity is not likely to significantly affect threatened species or ecological communities, or their habitats and entry into the Biodiversity Offset Scheme or preparation of a Species Impact Statement is not required. 4. The proposed activity is not a 'controlled action' for the purposes of the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 and referral to the Commonwealth Environment Minister is not required. … 1. Factors under cl 228(2)(a)-(p) of the EPA Regulation are assessed in the REF under item 7.7 Clause 228 Matters of Consideration. According to the REF the proposal was likely to have: 1. A negligible or positive environmental impact on the community for the reason the activity would not impact the community's access to and amenity of the Beach. 2. A negligible impact on transforming the locality as the locality will remain a beach and coastal foreshore reserve. 3. A negligible environmental impact on the ecosystem of the locality for the reason protected vegetation and fauna are unlikely to be significantly affected inter alia. 4. A negligible or positive impact on the aesthetic, recreational, scientific or other environmental quality or value of the locality. The site would remain a public beach and recreation opportunities would not be diminished. 5. A negligible effect on a locality having a special value for present or future generations for the reason off-leash dogs are unlikely to harm Aboriginal heritage. Nor will the activity affect the local heritage area Silica Wharf and Tramway (remnants) that the Beach forms part of. 6. A negligible impact on the habit of protected fauna (within the meaning of the Biodiversity Conservation Act 2016 (NSW)) based on the test of significance in item 7.5 of REF that concluded the proposed activity would not have a significant impact upon threatened fauna including fish. 7. A negligible assessment that the activity will endanger any species of animal, plant or other form of life as no species rely on the Beach to the extent that the activity would put them further in danger. The test of significance concluded that the proposed activity would not have a significant impact upon threatened fauna. 8. A negligible or positive long term effect on the environment as signage installation will improve awareness of prohibited behaviour and the threat to shorebirds in the area inter alia. 9. A low adverse assessment that the activity will degrade the quality of the environment as the environmental safeguards (item 2.4 of the REF) will minimise impacts and risks to the quality of the environment inter alia. 10. A negligible or positive risk to the safety of the environment for reasons that the activity will not increase the risk of natural hazards, involve hazardous waste or affect flood and tidal regimes. 11. A negligible or positive reduction in the range of beneficial uses of the environment. The reasoning was the proposal had no effect on the beneficial use of site for beach and ocean related recreation activities. The off-leash dog area added to the beneficial uses of the environment shown in the results of community consultation. Limited time periods ensured the wide community could continue to the use the beach and foreshore without disruption from dogs. 12. A low adverse assessment that the activity will cause pollution. This assessment was based on the assumption that dog owners will clean up faeces so that waste pollution from dogs would be unlikely to have an impact on the natural environment. Bag dispensers and rubbish receptacles would be located at the main access points to the off-leash zone to promote compliance with the Companion Animals Act. The activity is also unlikely to cause noise pollution inter alia. 13. A low adverse impact from any environmental problems associated with disposal of waste arising from the development, based on the assumption above in [(l)]. 14. A negligible assessment that the activity will increase demands on resources as no resources (aside from signs) are required for the proposed activity. 15. A negligible cumulative environment effect with other existing or likely future activities, as the assessed impacts on the proposal were not likely to interact. 16. A negligible impact on coastal processes and hazards for the reason the activity is unlikely to have an impact on these. 1. The REF in item 4 Permissibility stated the proposed activity is permissible under all relevant legislation. Regarding the EPA Act the REF stated: Part 4 of the EP&A Act does not apply as development consent is not required for the proposal. Continual use of Narrawallee Beach as permitted dog access is demonstrated in 1, which provides a timeline of continual use of dog access since 2005. As such Section 4.68(1) of the EP&A Act Continuance of and limitations on other lawful uses applies. Dog access on Narrawallee Beach constitutes an activity as defined under Part 5 of the EP&A Act. Section 5.5 of the Act Duty to consider Environmental Impact requires Council examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity. This REF assesses all potential impacts of the proposal. All aspects of the proposal are documented in Section 2.2. Potential impacts of the proposal are detailed in Section 7. Table 4 includes an assessment against factors a) – p) in Clause 228 of the Environmental Planning and Assessment Regulation (2000). Section 5.7 of the EP&A Act requires Council to examine and consider an environmental impact statement (EIS) in respect of the activity. Specific assessments for threatened species listed under the BC Act and EPBC Act, and migratory species listed under the EPBC Act are conducted in Section 7. These assessments find mitigation measures, listed in Section 2.4, are adequate to ensure the proposal does not constitute a significant impact to listed threatened or migratory species. As such an EIS is not required. 1. In regard to the Crown Land Management Act 2016, the REF stated: The PoM pertaining to the land is the Generic Community Plan of Management – Natural Areas https://doc.shoalhaven.nsw.gov.au/displaydoc.aspx?record=D16/208141. The Core Objectives for management of community land categorised as foreshore that are set out in the Act and the PoM are: To maintain the foreshore as a transition area between the aquatic and the terrestrial environment, and to protect and enhance all functions associated with the foreshores' role as a transition area, and To facilitate the ecologically sustainable use of the foreshore, and to mitigate impact on the foreshore by community use. The proposal is in line with the first objective, as the proposed change will not impact on the foreshores' role as a transition area between the aquatic and terrestrial environment. The proposal also meets the second objective, in that dogs will continue to be excluded from the sensitive environment area at Narrawallee Inlet, where threatened shorebirds are known to breed. The PoM as well as Council's Foreshore Reserves Policy (POL16/242) does not preclude the activity. 1. In regard to the Coastal Management Act 2016 (NSW), the REF stated: The 2018 Coastal Zone Management Plan for the Shoalhaven Coastline, https://doc.shoalhaven.nsw.gov.au/DisplayDoc.aspx?record=D18/379377, which is likely to provide the basis for the CMP, addresses the need to manage the impacts of pest species and dogs on beaches, particularly in regards to the protection of threatened shorebirds. The implementation of the NSW South Coast Shorebird Recovery Program is listed as high priority. The proposed activity is considered consistent with these strategies, because dogs will continue to be prohibited in the Narrawallee Inlet area with a ~600 metre buffer, where nesting of threatened shorebirds occurs. 1. In regard to the Biodiversity Conservation Act, the REF stated: The proposed activity is; Unlikely to have a significant impact on species and communities listed in the schedules of the Act (refer to Section 7 of this REF). Not within an area declared to be of "outstanding biodiversity value" as defined in the Act. Unlikely to have a significant impact on threatened species and/or threatened ecological communities listed in the schedules of the Act Not considered to have a serious and irreversible impacts on biodiverstiy values. The proposed activity therefore is not deemed to be likely to significantly affect threatened species and a Biodiversity Development Assessment Report (BDAR) and entry into the Biodiversity Offset Scheme (BOS) is not required. 1. By resolution dated 26 April 2022 the Council resolved MIN 22.278 as follows: Recommendation That Council, after consideration of the proposed dog off-leash area and associated works at Narrawallee Beach (the Proposed Activity) assessed in the Review of Environmental Factors dated 28 January 2022 (the REF): 1. Determines: a. that it has examined and taken into account, to the fullest extent possible, all matters affecting, or likely to affect, the environment by reason of the Proposed Activity. b. that the Proposed Activity is unlikely to significantly affect the environment provided that the proposed safeguards and mitigation measures identified in the REF are adopted and implemented, and therefore, an Environmental Impact Statement is not required to be obtained, examined, and considered in respect of the Proposed Activity; and c. to adopt and implement the proposed environmental safeguards, mitigation measures and controls identified in the REF. 2. Pursuant to section 13(6) of the Companion Animals Act 1998, declare that part of Narrawallee Beach between BA8 and BA2 identified in Figure 3 of the REF to be an off-leash area between the hours of 4pm and 8am Australian Eastern Daylight-Saving Time and between 3pm and 10am Australian Eastern Standard Time. 3. Pursuant to section 14(1)(d) of the Companion Animals Act 1998 declare that part of Narrawallee Beach at BA1; between BA9 and BA15; and between IA1 and IA3 as identified in Figure 3 of the REF to be dog prohibited. RESOLVED (Clr Butler / Clr White) MIN22.278 That Council: 1. Postpone making a determination and direct Council staff to undertake further investigations, and: 2. Temporarily hold in place the current on-leash / off-leash provisions pending further investigation and the review of the Access Areas for Dogs Policy. Applicant's evidence 1. The following documents inter alia were annexed to the affidavit of Ms Vatala sworn 17 June 2022. An undated profile on the Sooty Oystercatcher extracted from the Office of Environment and Heritage webpage identified threats to the Sooty Oystercatcher included disturbance to coastal feeding, nesting and roosting areas through beachcombing, fishing, dog-walking, horse-riding and 4WD vehicles. An undated profile on the Pied Oystercatcher extracted from the Office of Environment and Heritage webpage identified threats to the Pied Oystercatcher included disturbance of nesting shorebirds and direct predation of eggs and chicks by domestic dogs. In the profile for each bird species an activity to assist the species included assessing the appropriateness of dog and cat ownership in new subdivisions. 2. Annexed to the affidavit of Ms Vatala sworn 27 September 2022, a half yearly review of compliance matters report for an ordinary meeting of the Council dated 7 February 2022 set out the details for compliance penalty notices issued between 1 July 2021 and 30 December 2021. Two penalty notices and three warning notices were issued in the Narrawallee locality during this period for offences unrelated to dogs. Council's evidence Mr Coddington's affidavit 1. Mr Coddington affirmed an affidavit dated 16 May 2023. He was team leader of the Council's environmental assessment team who undertake environmental impact assessments. He has a Bachelor of Landscape Management and Conservation. All members of his team hold tertiary qualification in environmental science and have relevant professional experience including environmental impact assessment. 2. In December 2021 and January 2022, the team undertook an environmental assessment of dog off-leash areas and associated works at the Beach. Ms Anderson environmental assessment officer prepared the REF dated 28 January 2022 under the supervision of Mr Coddington. The environmental safeguards and management measures reflected those that the Council was implementing prior to the preparation of the REF. Mr Coddington approved the REF document. In preparing his affidavit he reviewed the REF and agreed with the environmental assessment contained within it. 3. In relation to item 2.4 of the REF that required a pre-works shorebird survey, Ms Anderson undertook an inspection of the Beach in December 2021 during the preparation of the REF. Her field notes could not be located. Database searches (for example, NSW Bionet, EPBC Protected Matters Search Tool and Birddata) were also carried out at this time. The Council regularly liaised with the NPWS South Coast Shorebirds Recovery Program in relation to the presence of shorebird nesting on the Beach. 4. Mr Coddington is aware the Council has published a document "Dog Off-Leash Guide" available on its website and is currently undertaking a review of its Access Areas for Dogs Policy that is on public exhibition and is inviting community feedback via its website. Mr Coddington's oral evidence 1. In cross-examination, referred to the safeguards in item 2.4 of the REF Mr Coddington agreed that the survey work carried out by Ms Anderson prior to the REF was distinct from the survey work that needed to be completed prior to the commencement of any work. Mr Coddington stated that the survey she carried out was an ecological field survey and habitat assessment. It was observational and the presence of any shorebirds would have been noted. He agreed that item 2.4 of the REF required a further shorebird survey to be carried out. He agreed that no shorebird survey had been done prior to the commencement of any work. 2. Mr Coddington confirmed Ms Anderson who no longer works for the Council authored the REF. Asked whether he had a supervisory role in the preparation of the REF, he agreed and stated he authored parts of the document. The preparation of the REF was under his lead. Asked whether it was correct that no records or field notes from Ms Anderson's inspection could be found, he replied he had records of the inspection and site photos. He had spoken to Ms Anderson and his team held a staff meeting onsite before she carried out the survey. He did not have her field notes. Her response was written into the REF itself. Asked whether he would know without her field notes exactly where the survey was conducted and how long her survey lasted, he replied he wouldn't. He then stated the site photos give an indication of where the survey was carried out. 3. Mr Coddington stated there was a reference to the survey for presence of threatened shorebirds on 16 December 2021 in item 2.5 of the REF in reply to the Applicant's proposition that there was no reference to an inspection in the REF. Asked whether he knew what happened to Ms Anderson's field notes, he suspected that she wrote her notes into the REF based on photos she took. Mr Coddington agreed the survey photos weren't reproduced in the REF. 4. Referred to the safeguard in item 2.4 of frequency of council ranger inspections and the commitment of the Council's ranger service in item 6.3 of the REF, the Applicant suggested that the frequency of council ranger inspections had not given effect to the terms of the REF. Mr Coddington responded that ranger inspections were outside the scope of his role as biodiversity coordinator. Mr Coddington stated that in the preparation of the REF the rangers assured him they could achieve the patrol frequency included in the REF. 5. Referred to the final safeguard in item 2.4 of mitigating measures being revised, asked whether there had been a reduction in the northern boundary of the off-leash area in response to seasonal shorebird nesting sites by the Council since the REF, he replied no. He stated the final safeguard detailed adaptive measures that would be implemented if a need arose, which had not. Asked whether nesting sites had been fenced to demarcate the presence of nesting shorebird, he stated the NPWS South Coast Shorebird Recovery Program have fenced nesting sites during the nesting breeding season subsequent to the REF. 6. Referred to the record of liaison with the NPWS above in [118], asked whether the record referred to fencing of nesting sites of shorebirds, he stated there is column with fencing that recorded "erected" where fencing had been erected. In response to the proposition that only one inspection of the Beach had been recorded in December 2022 by the Council in the records of council ranger inspections summarised above in [119], he replied inspections were outside his area of knowledge. He stated the proposition couldn't be correct as he was aware of the regularity of council ranger patrols due to his work with council rangers in the preparation of the REF and Access Areas for Dogs Policy for the Council, and frequency would be more than monthly. 7. Mr Coddington agreed that the assumption in the REF is that dog owners clean up dog faeces and therefore waste pollution is unlikely to have an impact. Whether dispensers had been installed for plastic bags was outside his area of expertise. Referred to the assessment in the REF detailed above in [123(o)], he agreed with the Applicant's proposition that a full environment assessment of the off-leash and associated on-leash dog access at the Beach would consider the impact of non-compliance with the Council's rules. 8. Mr Coddington agreed with the proposition that off-leash dog activities had the potential for adverse interactions between other users of the Beach and dog owners to the extent that dogs off-leash may impact other users of the Beach by chasing them, disturbing their activities, creating noise and leaving faeces on the Beach inter alia. 9. Asked about the signage the subject of the Decision of 2 November 2021, Mr Coddington stated that there is signage on the beach indicating where dogs can and can't go on the Beach. He did not know if that signage was the same as the signage approved in the Decision. Dog Off-Leash Guide 1. The Council published a Dog Off-Leash Guide dated 25 November 2021 that was annexed to Mr Coddington's affidavit. In the Dog Off-Leash Guide dogs are totally prohibited from entering shorebird nesting areas city wide and recreation areas where dogs are prohibited. Narrawallee Inlet is identified as a regular nesting site of threatened shore birds from August to April. The location of nesting sites varied from year to year. Endangered and vulnerable shorebirds in the LGA included the Hooded Plover, Pied Oystercatcher, Sooty Oystercatcher and Little Tern. Draft Access Areas for Dog Policy 1. The Council is in the process of undertaking a review of its Access Areas for Dogs Policy. The Council is inviting community feedback on a draft policy document. Relevant provisions of the draft Access Areas for Dogs Policy on public exhibition and annexed to Mr Coddington's affidavit are extracted below. 1. Purpose This policy provides the basis for designating dog OFF-LEASH and dog PROHIBITED areas in the Shoalhaven local government area, in accordance with the Companion Animals Act 1998 (NSW, herein referred to as 'the Act') and the following priorities identified in the Shoalhaven 2023 Community Strategic Plan: 1.3 Support community wellbeing through fostering active and healthy communities 2.3 Protect the natural environment and enhance sustainability 4.3 Inform and engage with the community about the decisions that affect their lives In accordance with the Act, responsible dog ownership practices shall be supported and enforced through the establishment of appropriate 'dog off-leash' and 'dog-prohibited' areas for land and assets within the ownership, management, care and control of Shoalhaven City Council (herein 'Council'). In accordance with the Act, Council must provide at least one dog off-leash area within the Shoalhaven local government area. All other matters relating to dog ownership (such as collars, microchipping, registration, etc.) are defined under the Act. … 3. Provisions This policy is primarily governed by the Act and the Local Government Act 1993 (NSW). The Act outlines legislative requirements in New South Wales relating to the identification and registration of companion animals andfor the duties and responsibilities of their owners, and for other purposes. Further to the Act, Council is obliged to manage the impacts of dogs on the natural environment through the preparation of environmental assessments in accordance with relevant legislation, such as: the Environmental Planning and Assessment (EP&A) Act 1979 (NSW), Biodiversity Conservation Act 2016 (NSW), the Environment Protection and Biodiversity Conservation Act 1999 (Cth), and the enforcement of legislative functions to ensure this outcome. … Applicant's submissions 1. None of the resolutions set out in par 4 of the Second Further Amended Summons above in [5] have been made in a way that complies with Pt 4 or Pt 5 of the EPA Act. The Decision continues the effect of these previous resolutions. No declaration of invalidity is sought rather the declarations sought are the failure to obtain development consent or alternatively the failure to comply with s 5.5 of Pt 5. I note I found development consent was not required in issue (B) above in [112]. 2. Having regard to the absence of a determination complying with s 5.5 of Pt 5 supporting any use of the Beach by dogs in particular the off-leash use, the evident environmental risks and community concern associated with access of dogs to the Beach, it would not be a proper exercise of discretion not to grant the relief sought: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic) at 340. 3. The declaration in prayer 3 of the Second Further Amended Summons would be required to mark the disapproval of the Court of the conduct that Parliament has proscribed: Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 (Hill Top) at [20]. 4. The REF relied on by the Council is no answer to the requirement in Pt 5.5. Firstly, the REF makes assumptions about compliance with Council's policies and resolutions concerning dog access. The Applicant's evidence demonstrates that there is extensive non-compliance with these by dog-owners. The REF assumes dog owners will clean up after their dog when the evidence above in [70]-[72] suggests to the contrary. The REF assumes the prohibited areas and hours will be complied with. The evidence above in [82]-[86] indicates dog owners are not complying with the Decision. The risk of non-compliance is not assessed in the REF and the REF fails to engage with the actuality of what is occurring on the Beach. Mr Coddington agreed that for a full environmental assessment the impact of non-compliance would need to be considered. As a result, impacts of dogs on the beach are not fully assessed in the REF. 5. Secondly, the REF assumes that environmental safeguards and mitigation measures in item 2.4 of the REF will be implemented to reduce risks. The Court cannot be confident the Council can implement mitigation measures in accordance with the REF. The Applicant submitted examples of failure to implement mitigation measures set out below. 1. According to the REF council ranger patrols will occur every two days. The Council records produced pursuant to the subpoena issued do not confirm anything like that frequency of visits by council rangers (see above in [119]). 2. Penalty infringement notices are intended to be issued in the REF for any repeat offenders observed during regular inspections. The evidence above in [120] establishes that enforcement action is not occurring in response to infringements taking place. 3. The Council is meant to maintain a 600m dog prohibited buffer area between the timed dog off-leash area and shorebird nesting areas in Narrawallee Inlet. The 600m buffer area is in name only being frequented by off-leash and on-leash dogs as established above in [82]. 1. Thirdly, disturbance of shorebirds on the Beach is substantial contrary to the assessment in the REF many of which are listed, the Sooty Oystercatcher as a vulnerable species, Hooded Plover as critically endangered species, Pied Oystercatcher as endangered species, Little Tern as endangered species under the Threatened Species Conservation Act 1995 (NSW). The REF assumes there is no adverse impact on threatened species. The shorebirds occupy and use areas outside the prohibited area on the Beach including the transit area as set out above in [76]-[78], and these areas are foraging habitat for the shorebirds. Dogs would deter shorebirds using parts of the Beach as a nesting area. Evidence above in [77] demonstrates dogs chase shorebirds. Any impact leading to the reduction of the Eastern Hooded Dotteral species would be significant as only 64 of the bird species are present in NSW. 2. Lastly, the preparation of the REF was not comprehensive and lacks scientific integrity. No details are provided in terms of the shorebird survey carried out by Ms Anderson. Her expertise is unknown, her field notes are unavailable, and she is no longer employed by the Council. 3. Assumptions in the REF are not practical and are inconsistent with the evidence before the Court. The REF does not adequately assess the actual or likely impacts of the activity and is insufficient to satisfy the duty under s 5.5 of the EPA Act by a determining authority. The evidence put forward by the Applicant should also be before the determining authority to comply with s 5.5 of the EPA Act. Council's submissions 1. The Council's Decision to allow dogs off-leash with on-leash access is an approval under Pt 5 in that it permits or authorises those activities. It is accepted that Council had a duty to consider the environmental impact of the activities and to conduct an environmental assessment before making its Decision. 2. If dogs are on a beach there will always be certain impacts such as noise from barking and dog faeces which is not collected by all owners as required by the Companion Animals Act. The REF does adequately assess all the environmental impacts which result from the decision to allow timed off-leash dog access and on-leash transit through defined areas of the Beach. The Council must balance a range of competing community interests in light of its obligations under the Companion Animals Act. 3. The Court would conclude that the Decision did not give rise to an activity with a significant environmental impact and an environmental impact statement (EIS) is not required under s 5.7 of the Act. 4. The Council accepts there has been no compliance with s 5.5(1) of the EPA Act. The REF was not prepared until after the Decision was made. The Council has not endorsed the REF by way of resolution. The Council deferred making a decision pending the review of the Access Areas for Dogs Policy. This policy will apply to a range of beaches in the LGA. 5. The activity does not have an environmental impact of concern. Safeguards have been satisfactorily addressed in the REF. The REF was assessed in the context of Pt 5. Any environmental impacts of the activity, and effectiveness and feasibility of environmental safeguards and mitigation measures, were considered in the assessment. Mitigation measures in item 2.4 of the REF include signage, regular monitoring by council rangers and the issue of penalty infringement notices. The proposed environmental safeguards reflect those the Council was implementing prior to the preparation of the REF. The measures have been in place for some period of years as have dogs on the Beach on-leash and off-leash. The mitigation measures will be revised as required to ensure threatened and migratory shorebirds are adequately protected. 6. The significant history of liaison with the local community was taken into account in the preparation of the REF as set out in items 2 and 6 of the REF. The mitigation measures have been developed in response to community consultation including community concerns such as the matters raised in this proceeding. 7. A test of significance was undertaken and found the activity would not have significant impacts due to mitigation measures in item 7.5 of the REF. The Council relied on the assessments outlined above in [123(c)], [123(d)], [123(f)] and [123(k)] to support their submissions. In relation to the assessments regarding pollution and waste outlined above in [123(l)] and [123(m)], the Court has to read an element of reasonableness into the assumption relied upon, noting the Council has obligations under the Companion Animals Act to provide receptacles and plastic bag dispensers. In relation to the assessment above in [123(o)], this assessment is limited to environmental impacts only. 8. The REF determined the activity was not likely to threaten ecological species. A survey of shorebirds was completed by Ms Anderson in preparation of the REF. The REF focuses on protecting the key habitat being the nesting sites in Narrawallee Creek and Inlet north of the dog off-leash areas. A buffer area of 600m between dogs off-leash and shorebird key habitat is a key part of the mitigation strategy. The REF determines key foraging habitat in the southern portion of the beach will be reduced however more optimal foraging habitat in the Narrawallee Creek and Inlet will be unaffected. The activity is permissible with regard to threatened shorebirds under the Crown Land Management Act, Coastal Management Act, Biodiversity Conservation Act and the Environment Protection and Biodiversity Conservation Act 1999 (NSW) (EPBC Act) as set out above in [124]-[127]. 9. Under the REF the Council will liaise with the NPWS regarding mitigation measures to protect shorebirds. The South Coast Shorebird Recovery Program by the NPWS and the Council is in place. The Council relied on evidence above in [117(1)] of the presence of shorebirds in Narrawallee Spit Prohibited area at the northern end of the Beach provided by the NPWS. 10. The qualifications of Ms Anderson who undertook the REF and has since left the Council is known, based on Mr Coddington's evidence about the members of his team at the Council. 11. The Council's Foreshore Reserve Policy adopted 29 June 2004 and reviewed 1 December 2020 provides context for the REF. The Council has been providing for the protection of shorebirds and management of dogs for years. The Court should be satisfied that the Council implements ongoing measures to protect shorebirds that adequately mitigate environmental impacts. 12. Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21 (Pittking) at [52]-[56] identifies that authorities bind the Court to read the word "reasonable" into the duty to carry out a Pt 5 assessment. The Council must carry out a reasonable assessment "to the fullest extent reasonably possible all matters affecting..." the activity. The REF is a reasonable assessment having assessed all of the relevant matters, including community concerns, in preparation of the REF and appropriately setting out the basis for all conclusions made. 13. The Council does not authorise non-compliances with the Decision or the Companion Animals Act. The approach taken by the Council in the REF is in accordance with GS Maguire 'A Review of Dog Impacts to Beach-nesting Birds and Management Solutions' (2018, Birdlife Australia) that asserts the best approach to protection of shorebirds is to provide dog access to a portion of the beach. If dog access were prohibited on the Beach people would take their dog to the beach regardless and access would be less regularised to minimise impacts. 14. The Council has compliance officers who carry out inspections on the Beach. The Court should not conclude that the evidence produced is necessarily all the inspections undertaken. There is no evidence to inform the Court whether or not the council rangers were obliged to document when they went to the Beach and what occurred during their inspections. Exercise of discretion finding 1. The Court has broad discretion to determine whether declarations and consequential orders ought be made and if so on what terms in response to a breach of the EPA Act, as identified in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313 and Sedevcic at 340. 2. The Second Further Amended Summons is extracted above in [5] and seeks a declaration in prayer 3 in relation to the failure of the Council to comply with Pt 5 of the EPA Act. It also seeks orders as follows in prayers 4 and 5: 4. An order restraining the Respondent from signing, designating or marking, and facilitating by the provision of dog faeces bins, dog faeces bag dispensers, and other dog-related infrastructure, or otherwise allowing or encouraging, the use of Narrawallee Beach or any part of it as an off-leash dog area with associated on-leash access. 5. An order that the Respondent forthwith: a. remove from Narrawallee Beach all signage allowing off-leash and associated-on-leash use at Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and replacing it with signage notifying that off-leash and associated on-leash dog use is prohibited at all times (the latter signage to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act), … c. place a note on the Respondent's website informing the public that off-leash and associated on-leash dog use of Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) is unlawful until either development consent is obtained authorising that use or an environmental assessment is carried out assessing that activity in accordance with the EP&A Act (such note to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act). 1. The Council accepts that the decision to allow a timed dogs off-leash area on the Beach, which first occurred in 2015, is an approval under Pt 5 in that it permits or authorises those activities and an assessment of the environmental impact of that activity is required. The Council's staff have prepared an REF dated 28 January 2022 in purported compliance with s 5.5(1) of the EPA Act. This follows the Decision in November 2021 and earlier decisions from 2015 in relation to access for dogs off-leash on the Beach outlined above in [27]-[34]. As found in issue A above in [54]-[55] the effect of the Decision is to vary earlier decisions of the Council to permit dogs off-leash on the Beach by varying the southern boundary of the off-leash area and the use of the prohibited southern area of the Beach for transit of dogs on-leash, with appropriate signage. The REF assesses the environmental impacts of allowing dogs on-leash and off-leash on the Beach generally and concludes that if certain measures are implemented the environmental impact is not significant. The Council has to prepare an EIS as required under s 5.7(1) of the EPA Act if an activity is likely to significantly affect the environment. 2. I have already observed above in [56] that restraining the use of rubbish receptacles and plastic bag dispensers is not appropriate given that dogs are allowed on-leash on the Beach as a public place. Such facilities are necessary in any event as a matter of practicality for dog owners and for the benefit of other members of the community in having dog owners comply with their obligation under s 20 of the Companion Animals Act. Further, s 20(2) of the Companion Animals Act imposes duties on the Council in this regard which restraining the provision of this infrastructure would be completely contrary to. If I make any order it will not include any such requirement to restrain the use of such facilities. It follows that the focus of any order can only be the removal of signage and changes to the Council's website. 3. The Council submits that while it did not comply with s 5.5(1) of the EPA Act at the time of the Decision, or when earlier decisions were made, there is no utility in requiring further environmental assessment given the preparation of the REF and that the orders sought by the Applicant ought not be made by the Court. The Council submits that through the preparation of the REF the requirements of s 5.5(1) have been met. 4. The Council, meaning the elected councillors, was asked by its officers on 26 April 2022 to consider the REF and determine that: 1. it has examined and taken into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Proposed Activity, described as "the proposed dog off-leash area and associated works at Narrawallee Beach"; 2. that the proposed activity is unlikely to significantly affect the environment provided that the proposed safeguards and mitigation measures identified in the REF are adopted and implemented and no EIS is required to be prepared; and 3. to adopt and implement the proposed environmental safeguards, mitigation measures and controls identified in the REF. 1. The Council resolved on 26 April 2022 as set out above in [128] to postpone making a determination and directed council staff to undertake further investigations. It also resolved to hold in place the current on-leash and off-leash provisions pending further investigation and review of the Access Areas for Dogs Policy. It is obvious to observe that the activity being assessed is not a proposed activity as it commenced several years ago. 2. Given that the Council has not determined that the REF examines and takes into account to the fullest extent possible all matters affecting or likely to affect the environment I do not consider this is a matter about which I should make a conclusive finding as that is ultimately a function of the Council which the elected councillors are yet to undertake. It is sufficient for informing the exercise of discretion in this case that I consider whether the REF suggests that the Council has the capacity to comply with Pt 5 of the EPA Act accepting that an amended REF in the future may occur given the Council's resolution dated 26 April 2022 asking for further investigation. That is the approach that will inform the exercise of my discretion whether to make any declarations and orders. 3. The obligation to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of an activity requires a reasonable assessment to be undertaken, as identified by Moore J in Pittking at [52]-[54]: [52] I turn, first, to the question of statutory construction. In Guthega Development, Samuels JA (Mahoney and Priestley JJA concurring) considered the nature of the obligation that was imposed by the (then) s 111 (now s 5.5) and how it is to be understood. His Honour said (at 366): At the same time, it can scarcely be read literally in without some modification of its terms. For example, the phrase "to the fullest extent possible" would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limited burden imposed by the word "possible". "Possible" is of a similar kind to "foreseeable", a word etched in the professional cause of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word "reasonably" was inserted before "possible". [53] That approach was subsequently endorsed in Transport Action Group, where Mason P said, at [68], with respect to what was required by the (then) s 111 (now s 5.5) that: This obligation is mandatory but is to be applied reasonably and with practicality (Guthega). [54] More recently, in Oshlack, Gleason JA said [at 32]: As noted by the primary judge, the duty imposed upon each respondent as the determining authority by s 111 of the EPA Act to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity" in question including the specified matters, is properly construed as qualified by the word "reasonably". That is, the respondents' duty is to examine and take into account the matters referred to in that section to the fullest extent reasonably possible (citations omitted). 1. The REF is extracted and summarised in some detail above at [122]-[127] as the Council referred to numerous parts of the document. Important context is provided by the Council acting in accordance with the approach of Mr Maguire (see above in [166]) as recorded in item 7 of the REF that more effective dog management in public places is achieved if a council designates an off-leash area with restrictions as dog owners are otherwise likely to take their dogs anywhere. It is clear from the material in evidence that the Council is balancing competing demands and concerns of the local community across the whole LGA in the various resolutions made informed by the Access Areas for Dogs Policy which has been amended over time, a process which continues with a draft version of the policy presently on display to the public. 2. The proposal being assessed in the REF is a dog off-leash area and associated works, relating to the impact of the proposal on the community and the environment, specifically regarding threatened shorebirds and migratory birds known or predicted to occur in the Narrawallee area. The specific arrangements being considered in the REF reflect the Decision in terms of areas of access for off-leash dogs on the Beach and timing restrictions, with transition of dogs on-leash through the prohibited southern area from Surfers Avenue (item 2.2). The historical context is provided (item 2.3). 3. Environmental safeguards and measures to minimise impact are identified in item 2.4, including clear signage, undertaking a pre-works shorebird survey, regular monitoring by council rangers to include a minimum of one inspection every two days during off-leash hours, regular liaison with the NPWS South Coast Shorebird Recovery Program Coordinator including in key breeding season times and collaboration on mitigation measures to ensure protection of shorebirds. The REF also identifies in item 2.4 that an important approach in the LGA is education by the Council of the community about the control of dogs and owners' responsibilities to control their dogs under the Companion Animals Act. 4. The searches in relation to shorebirds informing the REF are identified in item 2.5, extracted above in [122] and these include NSW Bionet and Birdata database searches, and consultation with a NPWS shorebird ranger and council rangers. 5. Item 4 of the REF found the activity was permissible under all relevant legislation, including the EPA Act, Crown Land Management Act, Coastal Management Act and Biodiversity Conservation Act. Item 6 sets out the consultation conducted by the council staff in preparation of the REF with internal departments of the Council and the community. The Council received submissions from 100 individuals and groups in relation to the off-leash dog area both in support of and raising concerns about the activity. Concerns related to signage, non-compliance and user conflict and safety. The mitigation measures in item 2.4 of the REF were developed in accordance with the consultation. 6. Item 7 of the REF considers the assessment of likely environmental impacts and refers to the Biodiversity Conservation Act, including the five-part test of significance under Pt 7 s 7.3 of that Act in relation to shorebirds. Assessment against EPBC Act significance of impact matters in relation to shorebirds is also assessed. The determination in item 8 states that the Council has considered the potential environmental effects of the proposal and the effectiveness and feasibility of measures reducing or preventing detrimental effects. It is considered unlikely there will be any significant environmental impact resulting from the proposed activity and consequently no EIS (pursuant to s 5.7 of the EPA Act) is required. The conclusion is reached that the proposed activity is not likely to significantly affect threatened species or ecological communities or their habitats inter alia. 7. Clause 228(2) of the EPA Regulation is referred to in the REF summarised above in [123] and all factors are considered to determine the likely impact of the proposed activity. Subclause (a) environmental impact on community, subcl (b) transformation of locality, subcl (c) impact on the ecosystems of locality, subcl (d) reduction of aesthetic, recreational, scientific or other value, subcl (e) effect on locality, place or building with special value for present and future generations, subcl (f) impact on habitat of protected fauna, subcl (g) endanger species, plant or other form of life, subcl (h) long-term effects on the environment, subcl (i) degradation of quality of the environment, subcl (j) risk to safety to the environment, subcl (k) reduction in beneficial uses of the environment, (l) pollution, subcl (m) disposal of waste, subcl (n) demand on resources in short supply, subcl (o) cumulative effect with other existing or likely future activities and subcl (p) impact on coastal processes and coastal hazards, are all considered with the conclusion made in relation to each item that any impact would be negligible, low or in some cases a mildly positive impact. 8. Applying the principles identified in the caselaw cited in Pittking extracted above in [176], whether the REF demonstrates a capacity to adequately or reasonably assess the identifiable environmental impacts of timed off-leash dog access on the beach and related matters must be considered practically. 9. The Applicant argues the REF is based on key incorrect assumptions which I infer means that, if I agree, the conclusion I am to draw is that the assessment in the REF is not adequate or reasonable. The Applicant also disagrees with the conclusion in the REF that environmental impacts are not significant, particularly in the context of shorebird disturbance. The Applicant's lay evidence about impacts has been summarised above in [60]-[86] and already considered in relation to the Applicant's case on intensification. 10. I will first consider the Applicant's submission that the impact on shorebirds is significant and criticised the REF in concluding that the impact was acceptable. Consideration of the impact on shorebirds in the REF must be considered as a whole. The Applicant relied on lay evidence above in [82]-[84] of several witnesses who attest to the presence of dogs in the northern and southern prohibited areas on several occasions to submit that non-compliance by dog owners is occurring. I accept that lay evidence read by the Applicant does identify protected shorebirds in the Inlet area and the Beach (see above in [74]-[80]) and that is confirmed by the data obtained from the NPWS in the record for liaison above in [118]. That shorebirds are impacted by dogs in the sense that dogs chase birds is also identified by the evidence above in [77]. Observation of less shorebirds in certain locations in the Applicant's lay evidence above in [81] was not based on any scientifically accepted shorebird surveys so can be given little weight. 11. The adequacy of the assessment of the impact on shorebirds in the REF was criticised as scientifically inadequate because the officer responsible has since left the Council, did not leave any field notes and her qualifications are unknown. That Mr Coddington's (the Council's biodiversity coordinator) team members had tertiary qualifications is addressed in his written evidence and I do not draw any conclusion that the officer was not adequately qualified. Mr Coddington who is also tertiary qualified gave evidence that he oversaw the preparation of the REF and was satisfied about the adequacy of the assessment in the REF. No expert evidence is adduced by the Applicant to support the submission of lack of scientific integrity, rather the Applicant seeks to impugn the capability of council staff undertaking the REF, which I do not accept as a valid criticism. 12. While the Applicant criticised the REF as not being comprehensive and no details being known about the survey of shorebirds carried out by Ms Anderson, additional database searches and liaison with NPWS in relation to shorebirds are referred to in the REF. The REF also outlines ongoing liaison by council staff with the NPWS South Coast Shorebird Recovery Program on measures to protect shorebirds nesting sites in the Inlet area. The presence of protected shorebirds within the Inlet area, which is prohibited to dogs, is identified in the REF as an impact that must be dealt with. 13. The evidence before me includes a record of liaison with NPWS that details actions in relation to patrolling the nesting area in the Inlet area (see above in [118]). I note one lay witness observed signage that stated 'Shorebird nesting area – No Dogs' displayed from September to December each year and fencing off of the Narrawallee Inlet area. The evidence confirms that protective action is being taken in the Inlet area including measures such as erecting fences. 14. Also referred to in the REF summarised in the evidence above in [121] and relied on by the Council is the Foreshore Reserves Policy which explicitly deals with managing dog impacts on birds in such areas and is a policy the Council has had in place since 2004. 15. That the REF made the statement that "Narrawallee Beach has already been used as an off-leash area for several years and so is not considered a viable nesting location for shorebirds" is a statement of reality. It does not undermine the adequacy of the REF. As noted above in [181] the REF undertakes an assessment under various statutes relevant to impacts on shorebirds. 16. In light of all these matters I am unable to accept the Applicant's submission that the impact of the activity on shorebirds is inadequately assessed in the REF. The REF is comprehensive in its scope, alert to the various statutory schemes relevant to the protection of endangered shorebirds which must be considered, and measures for the protection of shorebirds is a major focus of the document. The consideration of all relevant and likely environmental impacts on shorebirds is reasonable. 17. Secondly, the inclusion in the REF as a safeguard measure that council rangers will patrol the beach every two days as stated in item 2.4 is criticised by the Applicant as a baseless assumption. The Applicant asserts as a matter of fact that rangers are not patrolling the Beach at that level of frequency, nor are they issuing penalty infringement notices to dog owners for non-compliance, based on the material produced by the Council pursuant to the notice to produce dated 13 April 2023 and the subpoena to produce dated 2 May 2023. The evidence summarised above in [120] does not record a penalty notice being issued to a dog owner from 28 March 2022 to 3 May 2023. As summarised above in the table set out at [119] the recorded frequency of visits is far less according to the documents produced. I note a lay witness attests that they have on only one occasion observed a council ranger patrolling dog walking on the Beach (see above in [87]). 18. Thirdly, the Applicant submits that the negative impacts of non-compliance by dog owners with Council orders made in reliance on the Companion Animals Act are demonstrated in the Applicant's lay evidence which identifies numerous instances of non-compliance and that this shows extensive non-compliance. The instances of non-compliance set out above in [82]-[86] are dogs entering the northern dog prohibited area, dogs off-leash outside the permitted hours in the timed dog off-leash area and dogs off-leash in the on-leash transit area that is otherwise dog prohibited. The REF is criticised because it does not recognise the extent of non-compliance and instead assumes compliance with orders made under the Companion Animals Act. The Applicant also relies on the evidence that dogs enter the northern dog prohibited area to assert that the Council cannot maintain the 600m buffer area they rely on as an environmental safeguard in item 2.4 of the REF. 19. I will consider these two criticisms as they are essentially interlocking. The evidence produced by the Council in response to the notice to produce and subpoena does demonstrate that ranger activity is occurring. Given that enforcement action by a council ranger is discretionary whether penalty infringement notices have been issued is not material. Giving warnings to non-compliant dog owners is the first enforcement response identified in the Council's strategy. Education about control obligations of owners under the Companion Animals Act is also identified as an important measure in the REF. Mr Coddington gave oral evidence that he understood that council rangers attended more regularly and that was why that level of regularity was identified in the REF. While he did not have direct knowledge as that concerned a different area of the Council his evidence suggests the Council's intention is to have very regular council ranger visits. The Council submitted that the assumption should not be made that the evidence relied on by the Applicant reflected all ranger visits as these are not required to be recorded, about which there is no evidence. 20. The response in the REF is to have ranger patrols every two days and that is the recommended ameliorative measure. The evidence and submissions on this issue is somewhat inconclusive in that Mr Coddington's oral evidence suggests that ranger visits are of greater frequency than the records provided and summarised above in the evidence. Further I observe that the REF is proposing this as an ameliorative measure so that strictly speaking it may not be implemented at the present time although it is clearly preferable that it has been implemented in light of the Applicant's evidence. Regular council ranger patrols are committed to in the REF. Overall, Mr Coddington's evidence above in [132] that the safeguard measures in item 2.4 of the REF are already being implemented by the Council on the Beach is accepted. 21. The evidence of non-compliance by dog owners identified by the Applicant's lay witnesses is said to show extensive non-compliance. Whether that is the case is difficult to accept as the evidence of large dog numbers largely in holiday periods appears to give rise to an inference that large numbers of people with dogs are complying with their obligations. 22. The controls implemented by the Council in the Decision and previously in the trial period of several years from 2015 when off-leash dog use was first permitted on the Beach include limiting the area and timing of that access, are contemplated by the Companion Animals Act. That there are instances of dog owners not complying with the Companion Animals Act as implemented by the Council and obligations imposed directly on dog owners has to be accepted as part of the community accepting companion animals in public places as a matter of course. I consider this impact is recognised in the REF and responded to through the ameliorative measures identified in item 2.4. The Council's approach in this context in the REF is reasonable. 23. Lastly, criticism is made of the assumption in the REF that dog owners will comply with their obligations under s 20 of the Companion Animals Act to dispose of dog faeces in considering that dog waste will not have a substantial impact on the environment. The Applicant relied on lay evidence summarised above in [70]-[72] about dog owners failing to dispose of dog faeces. As the Council submitted, a reasonable approach is required and that can include acceptance that not all dog owners will comply with s 20 as a practical matter. The assumption that the majority of dog owners will comply is a reasonable assumption for the Council to make in my view and the REF is not deficient in this regard. 24. I am determining whether the REF as prepared is reasonable in its assessment of identified and likely environmental impacts given the nature of the activity being assessed. Any inaccuracy in the REF does not result in a finding of unreasonableness and in any event I do not consider any has been demonstrated by the Applicant. The REF must be viewed as a whole and it is fair to describe it as comprehensive in relation to the impacts identified and considered. Overall, I consider the REF is capable of enabling the Council to take into account all matters affecting or likely to affect the environment such that the Council has the capacity to comply with Pt 5. In conclusion 1. The Council did not speak against the making of the declaration sought in prayer 3 in the Second Further Amended Summons dated 24 May 2023 and I consider that can be made for the reasons identified in Hill Top at [20]. As the Council submitted above in [48] the effect of making prayer 3 will be that the dog access arrangements on the Beach revert to those the subject of the resolution of 9 March 2021 set out above in [32]. 2. I do not consider making the orders sought by the Applicant are warranted in light of the limited scope of the Decision being challenged and my conclusions in relation to the REF. Costs 1. The Applicant's Second Further Amended Summons dated 24 May 2023 seeks costs. The Applicant has been partially successful. I have not heard argument about costs. As that is a matter about which argument may be necessary costs will be reserved and a timetable agreed with the parties to address costs if they wish to do so. Declaration and order 1. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2023