Boomerang and Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 2)

[2019] NSWLEC 202

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 2) [2019] NSWLEC 202
Hearing dates:	15 to 17 April 2019
Date of orders:	23 December 2019
Decision date:	23 December 2019
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [276]
Catchwords:	JUDICIAL REVIEW – application seeking declaratory relief in relation to decisions made by the Minister and Council to prepare, certify and adopt the Great Lakes Coastal Zone Management Plan – whether the applicant has standing – whether the impugned decisions were unreasonable – whether there was non-compliance with the Coastal Protection Act 1979 (NSW) and Guidelines for Preparing Coastal Zone Management Plans – whether there was a deficiency of information for the Great Lakes Coastal Zone Management Plan – whether there was a rational basis for the risk assessment in the Great Lakes Coastal Zone Management Plan – application dismissed
Legislation Cited:	Associations Incorporation Act 2009 (NSW) Coastal Management Act 2016 (NSW) Sch 3 Coastal Protection Act 1979 (NSW) ss 3, 4, 12, 13, 55A, 55B, 55C, 55D, 55E, 55F, 55G, 55H, 55K, 55L, Pt 4A Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 79C, 123 Great Lakes Local Environmental Plan 2014 Land and Environment Court Act 1979 (NSW) s 20 Local Government Act 1993 (NSW) s 220 Uniform Civil Procedure Rules 2005 (NSW) r 59.10
Cases Cited:	Alliance to Save Hinchinbrook v Cook [2006] QSC 084; (2006) 145 LGERA 32 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Australian Capital Television Pty Ltd v Minister for Transport & Communications (1989) 86 ALR 119 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493; [1980] HCA 53 Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government [2019] NSWLEC 201 Chisholm v Pittwater Council [2001] NSWCA 104 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 Kruger v Commonwealth of Australia; Bray v Commonwealth of Australia (1997) 190 CLR 1; [1997] HCA 27 La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 Parramatta City Council v Pestell (1972) 128 CLR 305; [1972] HCA 59 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129 Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 South Australia Housing Trust v Development Assessment Commission (1994) 63 SASR 35; (1994) 85 LGERA 92 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594 Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Wattie v Industrial Relations Secretary (No 2) [2018] NSWCA 124
Texts Cited:	Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters)
Category:	Principal judgment
Parties:	Boomerang & Blueys Residents Group Inc (Applicant) New South Wales Minister for the Environment, Heritage and Local Government (First Respondent) MidCoast Council (Second Respondent)
Representation:	Counsel: N Hutley SC with R White (Applicant) S Duggan SC with N Hammond (First Respondent) J Lazarus (Second Respondent)   Solicitors: King & Wood Mallesons (Applicant) Department of Planning and Environment (First Respondent) Lindsay Taylor Lawyers (Second Respondent)
File Number(s):	2018/00051177
Publication restriction:	Nil

Judgment

1. Before the Court is a Class 4 application filed by Boomerang & Blueys Residents Group Inc (‘applicant’) seeking declaratory relief primarily in relation to the certification by the first respondent, the New South Wales Minister for the Environment, Heritage and Local Government (‘Minister’) and the subsequent adoption by the second respondent, MidCoast Council (‘Council’) of the Great Lakes Coastal Zone Management Plan (‘CZMP’). The CZMP was certified by the Minister on 16 November 2017, adopted by Council on 20 December 2017, and gazetted on 29 December 2017.

2. On the first day of the hearing, I granted leave to the applicant pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) to rely upon the amended summons attached to its notice of motion filed 10 April 2019: see Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government [2019] NSWLEC 201.

3. In the amended summons, the applicant seeks two additional declarations in relation to antecedent decisions, being a declaration that the decisions made on or about 24 November 2015 by Council to adopt and submit the then current draft of the CZMP to the Minister for certification were invalid; and a declaration that the decision made on or about 22 August 2016 by Council to submit the then current draft of the CZMP to the Minister for certification was invalid (‘antecedent decisions’).

4. The hearing proceeded for three days from 15 to 17 April 2019, with Mr N Hutley of senior counsel appearing with Mr R White of counsel for the applicant, Ms S Duggan of senior counsel appearing with Ms N Hammond of counsel for the Minister, and Mr J Lazarus of counsel appearing for Council.

5. For the reasons that follow, I have determined that the applicant, although it has standing to bring these proceedings, has not made out any of its grounds of challenge, with the consequence that the proceedings must be dismissed.

Introduction

6. Although the Court received extensive evidence comprising approximately 3,000 pages of background material, and the amended summons itself comprised 84 paragraphs, it is clear that the essence of the applicant’s case is that there was no rational or proper basis for the Minister and Council respectively certifying and adopting the CZMP which included the categorisation of coastal hazards at Blueys Beach and Boomerang Beach (collectively ‘the Beaches’) as “extreme or high risk” absent an evidential foundation. As such, the CZMP did not comply with the Coastal Protection Act 1979 (NSW) (‘CP Act’) or the Guidelines for Preparing Coastal Zone Management Plans (‘Guidelines’).

7. As the applicant pleads its case under four discrete yet overlapping grounds, and given that Council challenges the applicant’s standing, I will summarise the background factual material, and given the importance of the statutory regime, I will then summarise the relevant sections of the CP Act and give consideration to the associated instruments. I will then consider the question of standing, and finally, I will address the four grounds pleaded by the applicant.

Background

8. An understanding of the background facts and the conduct of each of the parties, much of which is uncontroversial, provides context to consider the manner in which the applicant puts its claims.

The parties

9. The applicant is an association incorporated under the Associations Incorporation Act 2009 (NSW) and is located in Newcastle East.

10. The Minister is a Minister of the Crown in right of New South Wales having functions and powers under the CP Act.

11. Council, a body politic of the State of New South Wales with the legal capacity and powers of an individual by reason of s 220(1) of the Local Government Act 1993 (NSW), is the legal successor of the Great Lakes Shire Council, and was formed on 12 May 2016 from an amalgamation of the Great Lakes Shire Council, Gloucester Shire Council, and City of Greater Taree Council.

The Beaches

12. The Beaches are two small, adjacent embayment beaches on the mid-north coast of New South Wales, approximately 18 kilometres south of Forster. There are coastal communities, predominantly residential, at each of the Beaches. The Beaches are two of many beaches in the local government area of what was Great Lakes Council (now MidCoast Council post amalgamation in 2016).

13. Boomerang Beach is a long wide sandy barrier beach of about 1,400 metres in length between the headlands of Charlotte Head and Boomerang Point. Behind the beach is a vegetated dune of 10 to 24 metres in height along the length of the beach.

14. Blueys Beach is a sandy barrier beach of about 900 metres in length situated between Boomerang Point and Blueys Head. Behind the beach are two vegetated dunes.

Chronology and the decisions made by the Minister and Council

15. On 16 November 2010, WorleyParsons, a consulting and advisory company in the energy, chemicals and resources sectors, delivered a draft report to Council relating to the potential for coastal risks at the Beaches entitled “Boomerang Beach and Blueys Beach – Coastal Processes and Hazard Definition Study”. The report was commissioned by Council for the purpose of examining coastal hazards to determine the immediate, 2060 and 2100 hazard lines to be used in formulating a Coastline Management Plan in accordance with the Coastline Management Manual (1990).

16. On 5 July 2011, WorleyParsons finalised the report entitled “Boomerang Beach and Blueys Beach – Coastal Processes and Hazard Definition Study” (‘WP 2011 Report’).

17. In connection with the preparation of the CZMP, Council also received the “Great Lakes Coastal Hazard Study” prepared by SMEC Australia Pty Ltd dated 23 October 2013.

18. On 4 April 2014, the Great Lakes Local Environmental Plan 2014 (‘LEP 2014’) commenced, which included the Coastal Risk Planning Map CRA_012A.

19. In June 2014, BMT WBM Pty Ltd, a design, engineering, science and risk management consultancy, prepared reports for Council entitled “Ground Penetrating Radar Investigation of Blueys and Boomerang Beaches” and “Bedrock Based Coastal Hazard Revision for Blueys and Boomerang Beach” (‘GPR Reports’).

20. In March 2015, Great Lakes Council (as Council then was) published a draft CZMP which was informed by a number of studies and reports, including the WP 2011 Report which Council had commissioned.

21. On 10 March 2015, Council passed a resolution to delegate authority to the Mayor and General Manager to adopt the then “final draft” of the CZMP to allow public exhibition and community engagement.

22. From 2 April 2015 to 15 May 2015, the draft CZMP was publicly exhibited. There were extensive submissions received which are summarised in Appendix B to the CZMP. The submissions include many of the concerns raised by the applicant in relation to the adequacy of the earlier reports relied upon in the preparation of the draft CZMP.

23. On 6 October 2015, Council passed a resolution to formally adopt the CZMP. Council also recommended formally adopting the “Great Lakes Coastal Zone Management Plan: Options Study” prepared by BMT WBM Pty Ltd for subsequent use in completion of the CZMP, as well as in interim planning and coastal management arrangements.

24. On 24 November 2015, Council passed a resolution confirming that the final “Great Lakes Coastal Zone Management Plan: Options Study” as amended was adopted and had informed the preparation of the CZMP, and that the final draft CZMP as amended (being the October 2015 CZMP) was adopted for lodgement and certification by the Minister for the Environment.

25. In December 2015, BMT WBM Pty Ltd finalised the “Great Lakes Coastal Zone Management Plan: Options Study” (‘Options Study’), referred to as a “companion document” to the CZMP on p 10 thereof. The Options Study outlined the management options for treating risks to assets and land from erosion, recession and coastal inundation on Council beaches in the Great Lakes area. The Options Study presented the risk assessment for coastal hazards, then risk treatment options to manage coastal hazards for each asset at intolerable risk by 2100. It included the relevant legislation, a summary of community survey results, submissions and responses on the draft CZMP, a summary of coastal hazards, various coastal management options, and coastal hazard risk maps. The Options Study stated that it comprised the following steps in the process being followed to prepare the CZMP:

…

(3)   Adopt a Risk Management Approach to assessing the level of risk from coastal hazards (now and at 2060 and 2100);

(4)   Identify and evaluate management options to treat the priority coastal risks, considering the technical and financial viability and the social, economic, aesthetic, recreational and ecological costs and benefits of the options, and prepare a Coastal Risk Management Study documenting the recommended management options;

(5)   Prepare a draft Coastal Zone Management Plan consisting of the best combination of options for reducing the risks from coastal hazards and achieving the plan objectives, including an implementation schedule to implement the preferred actions;

(6)   Review the draft Plan through public exhibition and consultation;

…

26. On 23 December 2015, Council submitted the draft CZMP to the Minister for Planning, Rob Stokes for certification. That letter stated, inter alia:

Council completed a final draft of the Great Lakes CZMP in October 2015. It was tabled for Council’s consideration and adoption at the Ordinary Meeting held on Tuesday, 24 November 2015. It is noted that the final CZMP now includes the Options Study at Appendix A.

Inter alia Council resolved at the above Meeting to:

Confirm that the final Great Lakes Coastal Zone Management Plan – Options Study, as amended, is adopted and has informed the preparation of the Great Lakes Coastal Zone Management Plan (CZMP).

Confirm that the final Great Lakes Coastal Zone Management Plan, as amended, is adopted for lodgement and certification by the Minister for the Environment.

Great Lakes Coastal Hazards Study was completed by SMEC Australia Pty Ltd in October 2013 and was subsequently adopted by Council for use in the revision of the Coastal Risk Planning Area map. Along with additional geotechnical investigation undertaken at Boomerang Beach and Blueys Beach, the SMEC Study informed the development and prioritisation of actions presented within the Great Lakes CZMP – Options Study. The Options Study was directly used in the completion of the CZMP proper and appears as Appendix A of that final document.

27. On 5 February 2016, Minister Stokes wrote to the New South Wales Coastal Panel (‘Panel’) and the Office of Environment and Heritage (‘OEH’) referring the draft CZMP and requesting advice regarding the adequacy of the CZMP.

28. On 30 March 2016, the Panel wrote to Minister Stokes recommending that the Minister proceed with the certification of the CZMP and noting:

…The Panel has considered the Draft CZMP, including a thorough review of the CZMP itself, forming its opinion based on the following furnished documents:

• Great Lakes Coastal Zone Management Plan (Version: 3, dated 22 December 2015);

• Great Lakes Coastal Zone Management Plan – Options Study (Version: 3, dated December 2015); and

•   OEH Regional Operations Group assessment of draft CZMP against the statutory requirements of the Coastal Protection Act 1979 and minimum requirements of the Guidelines for Preparing Coastal Zone Management Plans (2013).

The submitted plan is particularly comprehensive, providing a practical, adaptive approach to managing the coastline hazards along the Great Lakes coastline into the future. The Plan provides a good balance between managing threats posed to residential development, improving outcomes for the natural environment, enhancing amenity and public access whilst also putting in place a range of strategies to manage public infrastructure assets within the dynamic confines of the coastal zone.

…

The Panel is however mindful that there remains an incomplete understanding of the overall sediment budget underpinning the coastal process of the region and that it is highly desirable this be resolved. Along with the limitations of this incomplete understanding is the as yet unresolved matter of the most appropriate, and viable management strategy for Blueys and Boomerang beaches. Recently updated photogrammetry and further investigations using ground-penetrating radar (GPR) have improved the robustness of the findings of the hazard definition work for these beaches. The reconsideration of available geological data to underpin such understandings is, in the opinion of the Panel, a more urgent and beneficial imperative than has been prioritised to date within the furnished plan. Further, although the CZMP recognises there is a need to determine a detailed management strategy for dealing with the issues affecting development at these beaches the Panel believes this needs to be more clearly and specifically expressed in the CZMP along with a timetable for resolution.

…overall the Coastal Panel was satisfied with the proposed approach and would recommend the Plan as being suitable for certification contingent on the Plan being re-submitted with some revisions concerning more specific detail and clarity around the studies to improve understanding of the overall sediment budget of the region and a specific program for the development of a detailed management strategy for Blueys and Boomerang Beaches….

29. On 9 June 2016, the Minister for Planning wrote to Council regarding amendments to the CZMP suggested by the Panel and endorsing the CZMP subject to revisions to address the Panel’s advice.

30. On 31 August 2016, Council wrote to the Minister for Planning enclosing the CZMP which included amendments to address the Panel’s advice. The amended CZMP was thereafter provided to the OEH for consideration of the amendment made by Council to reflect the Panel’s advice (‘August 2016 CZMP’).

31. On 28 June 2017, representatives of the applicant met with the then Minister for the Environment, Heritage and Local Government, Gabrielle Upton; Stephen Bromhead MP; and Sharon Molloy, Director of Hunter Central Coast at the OEH.

32. On 16 November 2017, the Panel advised Minister Stokes that the revised CZMP was suitable for certification.

33. On 16 November 2017, Minister Upton certified the August 2016 CZMP. In a letter to the General Manager of Council, Minister Upton noted:

I am pleased to certify the CZMP in accordance with section 55G of the Act…

34. On or around 2 December 2017, the August 2016 CZMP was uploaded to Council’s website.

35. On 20 December 2017, Council made the following resolution:

Council adopt (make) the certified Great Lakes Coastal Zone Management Plan August 2016 in Attachment A to this report.

Council forward the adopted Great Lakes Coastal Zone Management Plan to Parliamentary Counsel for notification in the Government Gazette, as per direction from NSW Minister for the Environment in Annexure A in this report.

36. On 29 December 2017, NSW Government Gazette No 141 was published with a Council Notice stating:

Mid-Coast Council has prepared and adopted the Great Lakes Coastal Zone Management Plan in accordance with section 55 of the Coastal Protection Act 1979. The Plan was duly certified by the Minister for the Environment, The Honourable Gabrielle Upton on the 16th November 2017.

…

Evidence

37. The Court received extensive evidence much of which was not specifically referred to, including an evidence book comprising two volumes of material and separate tender bundles prepared by each of the parties. The applicant separately tendered the final CZMP dated October 2015 and a bundle of documents in relation to submissions and objections to the CZMP.

38. In addition, the applicant read the affidavits of Adrian Donald Hibberd, the applicant’s Secretary/Public Officer, dated 4 May 2018, in relation to standing, and Michael John Francis Fox, President of the applicant, dated 4 May 2018, in relation to the engagement that members of the applicant had with others. Mr Fox also gave oral evidence.

39. The Minister read an affidavit of Samuel Kidman, Director, Ministerial Services in the Ministerial Services Branch of the OEH, dated 12 April 2019, in relation to the material before the Minister at the time of certification.

40. Council read the affidavit of Gerard Leo Tuckerman, Manager, Natural Systems at Council, dated 16 April 2019, in relation to the implications of challenges to Council’s decisions to submit the draft and final draft CZMP to the Minister for certification in light of the changes to the coastal management legislation, and the work Council intends to carry out to prepare new coastal management programs. Mr Tuckerman also gave oral evidence. Council also read the affidavit of Alexandra Elizabeth Cannon Macvean, Senior Strategic Planner at Council, dated 16 April 2019, which attached two maps showing the “Coastal Risk Planning Area” for Blueys Beach and the “Coastal Risk Planning Area” for Boomerang Beach.

41. Each of the parties provided detail written and oral submissions.

Legislative framework and requirements for the preparation and certification of a coastal zone management plan

42. The CP Act has been repealed and replaced by the Coastal Management Act 2016 (NSW) (‘CM Act’) which came into force on 4 April 2018. However, at the time of certifying the CZMP, the CP Act was in force and is, for the purposes of these proceedings, the relevant legislation. The CZMP continues to have effect until replaced by a “coastal management program” under the CM Act pursuant to cl 4, Pt 2 in Sch 3 therein.

43. As detailed below, the legislative framework provides for a three-step process: first, Council is to prepare the plan and submit it to the Minister; second, the Minister determines whether to certify that the plan has been prepared in accordance with the requirements of the CP Act (which include the Guidelines and the Panel’s recommendations); and third, if the plan is so certified, it can be made by Council by publication in the Government Gazette. As such, there is a division between Council (or the person who prepares plan) and the Minister in relation to certification.

44. For convenience, the relevant provisions in the CP Act are detailed below.

45. The objects of the Act are contained in s 3 of the CP Act, which provided:

3 Objects of this Act

The objects of this Act are to provide for the protection of the coastal environment of the State for the benefit of both present and future generations and, in particular:

(a)   to protect, enhance, maintain and restore the environment of the coastal region, its associated ecosystems, ecological processes and biological diversity, and its water quality, and

(b)   to encourage, promote and secure the orderly and balanced utilisation and conservation of the coastal region and its natural and man-made resources, having regard to the principles of ecologically sustainable development, and

(c)   to recognise and foster the significant social and economic benefits to the State that result from a sustainable coastal environment, including:

(i)   benefits to the environment, and

(ii)   benefits to urban communities, fisheries, industry and recreation, and

(iii)  benefits to culture and heritage, and

(iv)  benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, and

(d)   to promote public pedestrian access to the coastal region and recognise the public’s right to access, and

(e)   to provide for the acquisition of land in the coastal region to promote the protection, enhancement, maintenance and restoration of the environment of the coastal region, and

(f)    to recognise the role of the community, as a partner with government, in resolving issues relating to the protection of the coastal environment, and

(g)   to ensure co-ordination of the policies and activities of the Government and public authorities relating to the coastal region and to facilitate the proper integration of their management activities, and

(h)   to encourage and promote plans and strategies for adaptation in response to coastal climate change impacts, including projected sea level rise, and

(i)    to promote beach amenity.

46. Relevantly, in s 4 of the CP Act, the following terms are defined:

4 Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

coastal hazard means the following:

(a)   beach erosion,

(b)   shoreline recession,

(c)   coastal lake or watercourse entrance instability,

(d)   coastal inundation,

(e)   coastal cliff or slope instability,

(f)    tidal inundation,

(g)   erosion caused by tidal waters, including the interaction of those waters with catchment floodwaters.

Coastal Panel means the NSW Coastal Panel established under Part 2A.

…

coastal zone means:

(a) the area within the coastal waters of the State as defined in Part 10 of the Interpretation Act 1987 (including any land within those waters), and

(b)   the area of land and the waters that lie between the western boundary of the coastal zone (as shown on the maps outlining the coastal zone) and the landward boundary of the coastal waters of the State, and

(c)   the seabed (if any) and the subsoil beneath, and the airspace above, the areas referred to in paragraphs (a) and (b).

Note. The coastal zone consists of the area between the western boundary of the coastal zone shown on the maps outlining the coastal zone and the outermost boundary of the coastal waters of the State. The coastal waters of the State extend, generally, to 3 nautical miles from the coastline of the State.

…

public authority means a Minister of the Crown of the State, a department or instrumentality of the State, a council and any other public or local authority constituted by or under any Act, and includes any prescribed body.

…

47. Section 6 of the CP Act described “Coastal Authorities” as follows:

6 Coastal Authorities

(1)   For the purposes of this Act, each of the following is a Coastal Authority:

(a)   the Minister,

(b)   the Minister administering the Crown Lands Act 1989,

(c)   a council whose area, or part of whose area, is included within the coastal zone or whose area includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries,

…

(2)   A Coastal Authority:

(a)   may exercise the functions of an authorised officer, and

(b)   when exercising those functions, has all the immunities of an authorised officer.

…

48. The constitution and functions of the Panel are described in ss 12 and 13 of the CP Act as follows:

12 Constitution of NSW Coastal Panel

(1)   There is to be a NSW Coastal Panel.

(2)   The Coastal Panel is to consist of 7 members appointed by the Minister of whom:

(a)   one is to be a person nominated by the Chief Executive, and

(b)   one is to be a person nominated by the Secretary of the Department of Planning and Environment, and

(c)   three are to be nominated by the Local Government and Shires Association of New South Wales, and

(d)   one is to be a person nominated by the Secretary of the Department of Industry, Skills and Regional Development, and

(e)   one is to be appointed by the Minister with the concurrence of the Local Government and Shires Association of New South Wales.

(3)   The person appointed under subsection (2) (e) is to be the Chairperson of the Coastal Panel. The person appointed under subsection (2) (a) is to be the Deputy Chairperson of the Coastal Panel.

(4)   A person appointed under subsection (2) (a)–(d) must have qualifications and experience relevant to coastal planning, coastal engineering, coastal geomorphology, coastal environmental management or estuary management.

(5)   The Coastal Panel is a NSW Government agency.

Note. By virtue of section 13A of the Interpretation Act 1987, a NSW Government agency has the status, privileges and immunities of the Crown.

…

13 Functions of Coastal Panel

(1)   The Coastal Panel has the following functions:

(a)   to provide advice to the Minister on any matter referred to the Coastal Panel by the Minister relating to the coastal zone or otherwise in connection with the operation of this Act,

(b)   to provide advice to local councils in relation to such other matters as the Minister determines and notifies to the Coastal Panel,

(c)   such functions conferred or imposed on it by or under the Environmental Planning and Assessment Act 1979 relating to the granting of development consent,

(d)   any other function conferred or imposed on it by or under this Act, the Environmental Planning and Assessment Act 1979 or any other Act.

(2)   In exercising its functions, the Coastal Panel is to have regard to the objects of this Act.

(3)   The Coastal Panel may delegate the exercise of any function of the Coastal Panel under this or any other Act (other than this power of delegation) to:

(a)   any member of staff of the Office, or

(b)   any person, or any class of persons, authorised for the purposes of this section by the regulations.

…

49. Part 4A of the CP Act relates to coastal zone management plans and relevantly provided:

55A Minister to have regard to objects of Act

In exercising his or her functions under this Part, the Minister is to have regard to the objects of this Act.

55B Requirement for coastal zone management plans

(1)   A council whose area, or part of whose area, is included within the coastal zone may, and must, if directed to do so by the Minister, make a coastal zone management plan in accordance with this Part.

…

(4)   A coastal zone management plan may be made in relation to the whole, or any part, of the area included within the coastal zone.

(5)   A council must, if directed to do so by the Minister, review the council’s existing coastal zone management plan and make a new plan in accordance with this Part to replace the existing plan.

(6)   A council required under this section to review its existing coastal zone management plan and make a new plan to replace that existing plan must do so:

(a)   within 12 months after being directed to do so by the Minister, or

(b)   within such longer period as may be agreed to by the Minister.

(7)   If a council fails to comply with this section, the Minister may:

(a)   review the council’s existing plan and make a new plan to replace that existing plan, and

(b)   recover from the council the costs of doing those things, and

(c)   publish the new plan in the Gazette.

Such a new plan is taken to have been made by the council in accordance with this Part.

(8)   For the avoidance of doubt, the Minister may give a direction under subsection (1) or (5) in relation to part of an area included within the coastal zone.

…

55C Matters to be dealt with in coastal zone management plans

(1)   A coastal zone management plan must make provision for:

(a)   protecting and preserving beach environments and beach amenity, and

(b)   emergency actions carried out during periods of beach erosion, including the carrying out of related works, such as works for the protection of property affected or likely to be affected by beach erosion, where beach erosion occurs through storm activity or an extreme or irregular event, and

(c)   ensuring continuing and undiminished public access to beaches, headlands and waterways, particularly where public access is threatened or affected by accretion, and

(d)   where the plan relates to a part of the coastline, the management of risks arising from coastal hazards, and

(e)   where the plan relates to an estuary, the management of estuary health and any risks to the estuary arising from coastal hazards, and

(f)    the impacts from climate change on risks arising from coastal hazards and on estuary health, as appropriate, and

(g)   where the plan proposes the construction of coastal protection works (other than temporary coastal protection works) that are to be funded by the council or a private landowner or both, the proposed arrangements for the adequate maintenance of the works and for managing associated impacts of such works (such as changed or increased beach erosion elsewhere or a restriction of public access to beaches or headlands).

…

55D Guidelines for preparation of draft coastal zone management plans

(1)   A council is to prepare a draft coastal zone management plan in accordance with the Minister’s guidelines.

(2) Without limiting the power of the Minister to determine the guidelines, the Minister may adopt as guidelines a manual referred to in section 733 (5) (b) of the Local Government Act 1993.

(3) The Minister is to ensure that notification of any guidelines is published in the Gazette.

(4)   A copy of the Minister’s guidelines must be available for public inspection on the Internet website of the Office.

55E Public consultation

After preparing a draft coastal zone management plan, the council is:

(a)   to give public notice in a newspaper circulating in the locality of the place at which, the dates on which (comprising a period of not less than 21 days), and the times during which, the draft coastal zone management plan may be inspected by the public, and

(b)   to publicly exhibit the draft plan at the place, on the dates and during the times set out in the notice.

55F Submissions

(1)   During the period of public exhibition of a draft coastal zone management plan, any person may make a submission in writing to the council with respect to its provisions.

(2)   The council must consider all submissions so made.

(3)   The council may amend the draft coastal zone management plan as a result of the submissions.

55G Certification by Minister

(1)   After considering any submissions, the council is to submit the draft coastal zone management plan to the Minister for certification under this section.

(2)   Before submitting the draft coastal zone management plan to the Minister under subsection (1), the council must consult with other public authorities in the manner specified in the Minister’s guidelines.

(3)   Before certifying the draft coastal zone management plan submitted to the Minister under subsection (1), the Minister may refer the plan to the Coastal Panel for advice.

(4) The Minister may:

(a)   certify, or refuse to certify, that a draft coastal zone management plan submitted to the Minister has been prepared in accordance with the requirements of this Act, or

(b)   if the Minister has referred the plan to the Coastal Panel for advice under subsection (3) and the Coastal Panel has recommended changes to the plan—return the plan to the council and direct the council to amend and resubmit the plan with the recommended changes.

(5)   A council required to amend and resubmit a plan with recommended changes must do so:

(a)   within 90 days after being directed to do so by the Minister, or

(b)   within such longer period as may be agreed to by the Minister.

…

55H Gazettal and commencement of coastal zone management plans

(1)   If the Minister certifies that a draft coastal zone management plan has been prepared in accordance with the requirements of this Act, the council is to make the plan and publish it in the Gazette.

(2)   A coastal zone management plan takes effect on the date on which it is published in the Gazette or, if a later date is specified in the plan for its commencement, on the later date so specified.

…

50. Division 2 in Pt 4A of the CP Act relates to enforcement and provided:

55K Breach of coastal zone management plan: offence

(1)   A person must not carry out work for the purpose, or that has the effect, of preventing or remediating beach erosion, or for protecting property affected or likely to be affected by beach erosion, unless the work is:

(a)   in accordance with the relevant coastal zone management plan, or

(b) development for which consent has been granted or exempt development under the Environmental Planning and Assessment Act 1979 or an approved project within the meaning of Part 3A of that Act or approved State significant infrastructure within the meaning of Part 5.1 of that Act, or

(c)   temporary coastal protection works.

Maximum penalty: 4,500 penalty units (in the case of a corporation) or 2,250 penalty units (in any other case).

…

55L Breach of coastal zone management plan: restraint

(1) The Minister or a council may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of a coastal zone management plan.

(2)   If the Land and Environment Court is satisfied that a breach of a coastal zone management plan has been committed or that a breach of a coastal zone management plan will, unless restrained by an order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(3)   The functions of the Land and Environment Court under this section are in addition to and not in derogation of any other functions of the Court.

(4)   In this section, a breach of a coastal zone management plan means:

(a)   a contravention of or failure to comply with a coastal zone management plan, and

(b)   a threatened or apprehended contravention of or a threatened or apprehended failure to comply with a coastal zone management plan.

(5)   This section does not apply to a breach of a coastal zone management plan that is an act or omission that is:

(a)   development for which consent has been granted, exempt development or development that does not need consent under the Environmental Planning and Assessment Act 1979 or an approved project within the meaning of Part 3A of that Act or approved State significant infrastructure within the meaning of Part 5.1 of that Act, or

(b)   temporary coastal protection works.

(6)   Despite subsection (1), a council may not bring proceedings under this section to remedy or restrain a breach of a coastal zone management plan by the State or a NSW Government agency.

51. In July 2013, the Minister published the Guidelines pursuant to s 55D of the CP Act. The Guidelines were “intended to provide guidance to local councils, their consultants and coastal communities on the preparation of a Coastal Zone Management Plan (CZMP)” and, “specify the minimum requirements that are to be met when preparing a draft CZMP…in addition to the requirements in the Act”: s 1.1. In essence, the Guidelines provide “a framework for preparing a CZMP, including matters that should be considered in CZMP preparation”: s 1.1.

52. Relevantly, the Glossary in the Guidelines provides the following definitions:

Coastal hazard

‘Coastal hazard’ is defined in the Coastal Protection Act 1979 (section 4) and means the following:

a)   beach erosion

b)   shoreline recession

c)   coastal lake or watercourse entrance instability

d)   coastal inundation

e)   coastal cliff or slope instability

f)   tidal inundation

g)   erosion caused by tidal waters, including the interaction of those waters with catchment floodwaters.

…

…

Consequence

The outcome of a hazard which affects objectives.

…

…

Hazard

Occurrence or change in a set of circumstances relating to the physical aspects of coastal processes. To constitute a hazard, the change gives rise to a potential negative impact on life or property located within close proximity to the coastline.

…

…

Risk

Effect of uncertainty on objectives, usually characterised by reference to potential hazards and their consequences, or a combination of these. It is also expressed as a combination of consequences of hazard and the associated likelihood of occurrence.

…

…

53. The Guidelines, in s 2.2.1, under the heading “Plan preparation process” state inter alia, that:

The following should be considered before commencing the planning process:

•   the geographic area to be covered by the plan and the scope of the plan (i.e. the management issues to be considered)

•   relevant time periods for long-term planning, implementation and review of the CZMP

•   the management objectives that the plan is to help achieve (these may need to be determined early in the planning process), and

•   the proposed community and stakeholder consultation process.

For CZMPs covering both coastal hazards and estuary issues, the basis for developing appropriate management actions is an understanding of the behaviour of the natural systems. The degree of understanding of natural coastal systems should be compatible with the information needs for making decisions under the CZMP. In many situations, extensive existing information is available and should be collected early in the CZMP preparation process. Only important data gaps need to be filled when preparing a CZMP. The CZMPs implementation schedule may include data collection actions to support future decision-making.

…

54. In s 2.2.2, the Guidelines provide further detail in relation to consultation.

55. Section 3.1 of the Guidelines sets out minimum requirements for assessment of coastal risks and specifies what should be included in a coastal zone management plan which addresses coastal risks, including:

•   a description of:

-   coastal processes within the plan’s area, to a level of detail sufficient to inform decision-making

-   the nature and extent of risks to public safety and built assets from coastal hazards

…

-   property risk and response categories for all properties located in coastal hazard areas

•   proposed actions in the implementation schedule to manage current and projected future risks from coastal hazards, including risks in an estuary from coastal hazards. Actions are to focus on managing the highest risks (section 55C(d) and (e) of the Coastal Protection Act 1979)

…

56. Section 3.2 of the Guidelines relates to risks from coastal hazards. At s 3.2.1, the Guidelines identify the minimum assessment criteria for assessing the extent of coastal hazards in Table 2 which provides:

Hazard	Minimum assessment criteria
Beach erosion	Storm bite due to a beach erosion event with an average recurrence interval (ARI) of approximately 100 years plus an allowance for reduced building foundation capacity
Shoreline recession	Estimated recession due to sediment budget deficit and projected sea level rise*
Coastal lake or watercourse entrance instability	Qualitative assessment of entrance dynamics based on historical records*
Coastal inundation (including estuaries)	Estimate of wave run-up level and overtopping of dunes resulting from an extreme ocean storm event*
Coastal cliff or slope instability	Slope stability assessment; see Australian Geomechanics Society (2007)*
Tidal inundation (including estuaries)	Estimate of areas inundated from still water levels with a 500 or 100-year ARI*
Erosion within estuaries caused by tidal waters, including the interaction of those waters with catchment floodwaters	Estimate of estuary foreshore erosion due to physical processes and flood events

* assess under current conditions and projected future conditions.

57. Section 3.2.1 of the Guidelines further states:

The CZMP should include a map indicating the extent of each hazard present in the study area. For beach erosion and recession, the map should indicate the extent of the predicted beach erosion hazard, with predicted recession hazard areas indicated landward of this erosion hazard area. The plan should also include a table for each hazard indicating the number and type of buildings (e.g. residential, commercial and community) and significant infrastructure within each hazard area. The table should be used to assess the relative risks associated with these hazards, based on likelihood and consequences. It should include any additional relevant information on risks arising from these hazards (e.g. depth of inundation).

58. In s 3.2.4, under the heading “Property risk and response categories”, the Guidelines state:

CZMPs are to categorise all private property subject to coastal hazards according to the degree of hazard, and, in the case of hazards due to erosion and recession, the category of council’s intended response to managing the risks to the property (see Tables 5 and 6). This information is to be provided in a table in the CZMP. Where a property is located on the boundary between two hazard areas, the most seaward hazard area should be used, unless this area is less than approximately 25% of the block.

59. Tables 5 and 6 in s 3.2.4 of the Guidelines provide:

Table 5. Hazard vulnerability categories

Risk category	Hazard area for property
1	Current hazard area
2	2050 hazard area (i.e. likely to be affected by erosion or recession in the next 40 years)
3	2100 hazard area (i.e. likely to be affected by erosion or recession in the next 40-90 years)

Table 6. Coastal hazard response category

Response category	Intended public authority response
A	Coastal protection works are considered technically feasible and cost-effective – funding is being sought for implementation
B	Coastal protection works are considered technically feasible but not cost-effective for public funding – unlikely to be implemented by a public authority
C	Coastal protection works are not considered technically feasible – no intended public authority works

Applicant’s standing at common law

60. Council challenges the applicant’s standing to bring these proceedings. The Minister does not.

61. In the absence of open standing provisions such as the former s 123 of the EPA Act, there is no automatic statutory right for a person to bring judicial review proceedings challenging decisions made under Pt 4A of the CP Act. Council contends that the Court’s jurisdiction derives from s 20(2) of the Land and Environment Court Act 1979 (NSW) and as such, Council submits that the applicant is relying upon the common law principles of standing.

62. Council submits that the authorities concerning the standing of environmental groups are not directly applicable in circumstances where the applicant’s main objective appears to be to oppose the imposition of environmental controls contemplated by the CZMP. Mr Lazarus submitted that the applicant is not an “environmental group”, its cause is not an environmental cause, and it was not conducting its case through any concern for the environment, but was solely motivated by the self-interest of its members (in relation to a perception about the impact on property values arising from the CZMP). As such, Council contends that the authorities in relation to the standing of representative associations are more relevant.

63. Council cites the general principles which require consideration of the interests and activities of an incorporated association and the relationship between the association and the issues in the proceedings, and reminds the Court that one or more members having a specific interest does not permit the incorporated association to acquire standing.

64. Council submits that there is little information in the evidence about the applicant and that it appears to have been originally formed as an informal group in about 2011, but it was only incorporated in April 2015. Council submits that its objects are as broad as might be conceivable for such a group.

65. Council further contends that the evidence does not disclose how the making of the CZMP impacts particular members except to note that most of them are said to own properties at Blueys Beach or Boomerang Beach. Mr Lazarus submitted that writing letters in relation to various matters including the LEP 2014 map and commencing proceedings not by any individual member but by an incorporated association was not sufficient to confer standing upon the applicant. Mr Lazarus contended that the applicant has failed to discharge its onus in demonstrating that not only did individual members have an interest in setting aside the CZMP, but that the incorporated association did in the requisite sense.

66. Further, Mr Lazarus disputed the applicant’s interest in challenging the entirety of the CZMP and submitted that Mr Fox accepted (in his oral evidence) that there was no proposal for anything to happen at the Beaches other than the carrying out of further scientific work and a cost-benefit analysis on the basis of that further scientific work.

67. In light of the above, Council submits that the Court should reject the applicant’s assertion that it has standing to challenge the relevant decisions and dismiss the proceedings.

68. The applicant submits that it is apparent from the many meetings over the years between representatives of the applicant and the government (including Council) that it has never been suggested that the applicant was not engaging on behalf of the local community, or that the applicant lacked standing. The applicant rejects the submission that its objectives are designed purely to protect the value of some individual members’ properties and contends that its membership does not just comprise owners or tenants at the beachfront itself. Mr White’s primary submission was that the applicant is a bona fide body interested in issues of general public interest, particularly in relation to the preservation and management of beaches and the coastal environment in the Great Lakes area (particularly the Beaches) and that so long as the Court found that the applicant had those interests, it did not matter that the applicant was partly motivated by the preservation of property rights. Mr White’s further submissions may be summarised as follows:

69. First, the applicant’s objects are concerned with engaging with all levels of government in relation to environmental and risk management issues. This includes formulating and responding to policy proposals with respect to environmental and risk planning issues and having “…the right to engage in litigation to advance the interests of residents, land and business owners, and operating generally”.

70. Second, the applicant’s activities on coastal environment issues are not confined to this CZMP and the particular issues the subject of these proceedings. The applicant’s activities have extended over a long period and the evidence of Mr Fox shows that the applicant has, since 2011, undertaken a range of activities in relation to coastal environmental issues generally, as well as in relation to particular issues at the Beaches.

71. Third, objections and submissions have been made in relation to the relevant instrument both by the applicant and its solicitors during the exhibition period, including objections in relation to coastal management insofar as it affected the Great Lakes and Boomerang and Blueys area.

72. Fourth, the applicant is a member of the New South Wales Coastal Alliance (‘NCA’), an alliance of community groups along the coastline of New South Wales dealing with coastal protection and coastal management issues.

73. Fifth, the protection and management of the coastal environment is an important environmental issue for the benefit of present and future generations as provided for in the objects in s 3 of the CP Act, particularly ss 3(a), (b), (c)(ii) and (f) (noted at [45] above) which recognise the importance of urban communities and their role in relation to issues concerning the coastal environment.

74. Sixth, public consultation is required by s 55E of the CP Act and the importance of consultation with the community is also recognised in the Guidelines (at ss 2.2.1 and 2.2.2 therein). Further, the Options Study also acknowledges that the stakeholders in a CZMP include visitors, residents, private and public landholders. In assessing coastal hazards, the authors of the Options Study refer to the “aesthetic, recreational, ecological, cultural and economic values” associated with the coastal zone, noting that a “loss of houses would affect the wellbeing of the local community in the short term”. Mr White noted that the CZMP itself states that the Beaches are at the heart of the coastal villages involved and submitted that the applicant is and has been the association representing their interests for many years.

75. Seventh, the applicant brings attention to what it regards as a serious miscarriage and errors in relation to the CZMP for the communities at the Beaches. The applicant submits that it has been seeking to resolve issues relating to the CZMP and the protection of the coastal environment for several years and its efforts have failed in respect of the CZMP.

76. Eighth, the applicant contends that Tables 1-3 and 1-4 in the CZMP represent a misstatement of the degree or likelihood of hazard which are matters that affect the entire communities at the Beaches and are not limited to particular property owners of particular lots.

77. In summary, the applicant submits that it has undertaken the role of representing the community in relation to coastal protection issues for many years and it has standing to bring these proceedings, particularly in light of the objects of the CP Act.

Consideration

78. The principles in relation to standing are well established and are articulated in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 (‘Australian Conservation Foundation’) and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 (‘Onus’). Relevant to the determination as to whether the applicant has standing, I adopt the analysis of those decisions by Sackville J in North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492 (‘North Coast Environmental Council’) at 512, as considered by Craig J in Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373 at [88]-[102] as follows:

(i)   a "special interest" in the subject matter of the action must be demonstrated; a "mere intellectual or emotional concern" for preservation of the environment was insufficient to constitute such an interest; any asserted interest must extend beyond that of members of the public in upholding the law and involve more than genuinely held convictions;

(ii)   a "special interest" in the preservation of a particular environment may be demonstrated and in that respect an intellectual or emotional concern is not a disqualification from standing to bring proceedings;

(iii)   non-compliance with procedures ordained by statute are not themselves sufficient to confer standing on an applicant;

(iv)   the fact that a submission was made in response to notification of an environmental impact statement or, in this case, an environmental assessment to aid the Minister's consideration of the application did not, of itself, confer standing to challenge the decision or decisions made by the Minister; and

(v)   special interest of an organisation is not demonstrated simply by adopting objects demonstrating an interest in and commitment to the preservation of the physical environment.

79. It is accepted that merely taking up a particular cause, or having objects reflecting an interest in and commitment to particular subject matter does not mean that an incorporated association will automatically have standing in any proceeding relating to that cause or subject matter (North Coast Environmental Council at 512 and Alliance to Save Hinchinbrook v Cook [2006] QSC 084; (2006) 145 LGERA 32 at 105), and that most of the cases in which incorporated associations have been found to have standing have concerned challenges to administrative decisions affecting the environment and in many instances the association may have been the only entity with a special interest in the subject matter: Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594 at [130(c)], [135].

80. While Australian Conservation Foundation is instructive, I am conscious of the fact that the plaintiff in that case had no private right or equity at risk. In those circumstances, the plaintiff had to show a “special interest” in the subject matter, as distinct from “a mere intellectual or emotional concern”. While the plaintiff submitted that it held strong ideological interests, that its members had their own strong interests, that the objects of association covered the dispute, and that they had lodged objections in relation to the proposal, the Court ultimately rejected its claim for standing. The Court also emphasised that the incorporated body’s interests were to be assessed apart from those of its individual members.

81. In Onus, the plaintiffs sought to protect their spiritual and cultural connections to significant relics. The plaintiffs were found to have standing, notwithstanding the fact that their connections were “accompanied by an emotional or intellectual concern”. Stephen J noted at 42, that “the distinction between this case and the Australian Conservation Foundation case is not to be found in any ready rule of thumb, capable of mechanical application: the criterion of “special interest” supplies no such rule.” He went on to state that determinations of standing “…involve in each case a curial assessment of the importance of the concern which a plaintiff has with the particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter”.

82. I also note that in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [11.120], the learned authors state that while it is possible for a “…group to base a claim for standing to challenge an environmental concern on the alleged effect the decision may have on their commercial interests, this appears to be an increasingly rare basis for standing”. The authors go on to state that under common law tests, “[r]esidents and landowners nearby to land threatened with environmental degradation are usually accepted to have standing…”

83. It is necessary in the present matter to determine the nature of the group and the interest claimed by it. I consider that whether or not the applicant has standing turns upon its connection to the decisions in question. I am conscious of the fact that in making this determination, the relevant interest of the applicant does not necessarily equate with the combined interests of its members, and that an incorporated association does not acquire standing merely because some of its members possess it: Australian Conservation Foundation at 53.

84. I note that the applicant’s submissions in relation to coastal protection and coastal management are difficult to reconcile with its position in opposing the imposition of environmental controls contemplated by the CZMP. As such, I accept Council’s submission that the principles relating to standing of representative associations (rather than environmental groups) are more relevant in the present circumstances. Despite this, it is clear from the evidence, including the affidavits of Mr Fox and Mr Hibberd, Mr Fox’s oral evidence and Exhibit A containing emails and letters authored by the applicant to Ministers, Councillors and Council, and detailing the applicant’s attendances at various meetings, that the applicant has been actively involved and concerned with coastal management in the Great Lakes area over several years.

85. In his affidavit, Mr Fox deposes:

In furtherance of its objects, BBRG has engaged in the following activities:

(a) Making submissions to the State Government and MidCoast Council (and formerly the Great Lakes Council) in relation to and behalf of its members;

(b)   Meeting and liaising with representatives of the Government and local council;

(c)   Obtaining peer reviewed reports as required;

(d)   Representing the interests of the BBRG in the NSW Coastal Alliance (an alliance of similar groups located from Byron to Bega);

(e) Preparing and submitting objections to the Great Lakes Local Environmental Plan 2014 and to the Great Lakes CZMP; and

(f)   Keeping BBRG members aware of developments.

86. Mr Fox also deposes that the applicant engaged expert engineering expertise to assist in preparing its consideration of the draft CZMP; the applicant holds annual general meetings, as well as regular committee meetings; and he is a co-convenor of the NCA.

87. Mr Fox further deposes that “…Council and the Minister have acknowledged, met with, and corresponded with the BRRG in relation to coastal planning at Boomerang and Blueys Beaches”, and that he attended a meeting with representatives from WorleyParsons. Mr Fox notes that in April 2014, “following consultations with the BBRG”, he wrote to the New South Wales Government outlining the applicant’s concerns with the LEP 2014, and in September 2014, he attended a meeting with Minister Stokes, Stephen Bromhead MP, Robyn Parker MP and Richard Fry, a member of the applicant. Mr Fox deposes that he attended further meetings with Minister Stokes, representatives of the OEH and the NCA, and corresponded with Angus Gordon, the then Chair of the Panel.

88. Mr Fox notes that he also met with members of Great Lakes Council, representatives of BTM WBM, and members of the applicant to discuss the draft CZMP Options Study on exhibition. Mr Fox deposes that in February 2015, the applicant (although I note that the applicant was only incorporated in April 2015) submitted objections to the CZMP then on exhibition, and thereafter further engaged with the Great Lakes Council in relation to the status of the Beaches. Mr Fox notes that further meetings were held with members of the applicant, the OEH and Great Lakes Council, and that the applicant and others made 65 submissions in response to the March 2015 draft CZMP. Mr Fox deposes that the applicant corresponded with Minister Stokes in relation to the draft CZMP, and Mr Fox met with Minister Upton and Ms Molloy of the OEH in June 2017. Mr Fox deposes that in December 2017, he emailed Council on behalf of the applicant requesting that Council defer the decision of whether to approve the CZMP. Finally, Mr Fox notes that in December 2017, he attended a Council meeting and addressed Council, Ms Schiff, the Mayor and Councillor Roberts.

89. Although it was suggested to Mr Fox in cross-examination that these proceedings were commenced to protect the value and security of all properties at the Beaches, he gave the following evidence (Tcpt, 16 April 2019, p 101(3-4)):

Q.   It's all about adverse impacts on the value of property. Do you agree?

A.   No, it's the adverse impact on the total community.

90. In response to Mr Lazarus putting that the applicant had not made any submissions to the draft CZMP, in re-examination, Mr Fox was taken to correspondence including an email he wrote (with his signature, being “Chair Boomerang & Blueys Residents Group Inc.”) to the General Manager of the Great Lakes Council dated 15 May 2015 attaching the applicant’s submission and objections to the draft CZMP and associated documents, and Mr Fox gave evidence that the correspondence was a document that he, as president of the applicant or as part of the committee of the applicant, instructed the applicant’s solicitors to write as a submission to the draft CZMP.

91. Mr Hibberd made detailed submissions to Council including a presentation in September 2015 in relation to the then draft CZMP which included concerns that the WP 2011 Report was an “inadequate basis” for the CZMP particularly because it was a hazard definition study only and ignored existing regional data which Mr Hibberd brought to the attention of Council. Mr Hibberd requested that Council amend the LEP 2014 by deletion of the Boomerang and Blueys Coastal Risk Planning Map CRA_012A and defer the draft CZMP “until sufficient information is available to proceed”. Further, Mr Hibberd deposes that in January 2017, he attended a meeting with Mr Fox, Steve Papadopoulos, a member of the applicant, the then Chair of the Panel and Minister Stokes.

92. While I consider that the determination of standing at common law is, in the present matter, attended with considerable difficulty, I have concluded that the applicant does have standing. My reasons may be shortly stated.

93. The extent and degree of the applicant’s engagement in relation to matters of public interest is clear from its membership of and participation, through Mr Fox, at various teleconferences of the NCA. I also find that the applicant’s interests are closely connected with the impugned decisions in the present matter.

94. There is no doubt that the applicant has had consistent and historical concerns in relation to the treatment of the hazards at the Beaches. The evidence shows that the applicant and its representatives have consistently maintained such concerns. It is clear that the applicant (and the body known as Boomerang & Blueys Residents Group) has been providing commentary and submissions to Council and at least earlier to Minister Stokes for some period of time. Adopting the principles and the evidence summarised above, I accept the applicant’s submissions and find that the applicant’s various engagements and activities demonstrate that not only did individual members have an interest in the matter, but that the incorporated association did in the requisite sense. In reaching this conclusion, I have assessed the importance of the concern which the applicant has with the subject matter of these proceedings, and the closeness of the applicant’s connection to the impugned decisions. The nature of the applicant and the interest claimed is sufficient to satisfy me that the applicant possesses a “special interest” insofar as it is relevant, and it follows that the applicant has standing.

95. Finally, while I do not consider the applicant to be a “peak environmental organisation” in the sense considered in North Coast Environmental Council, in light of the evidence summarised above, the applicant is not a “mere busybody” and is well placed to put forward a viewpoint.

Applicant’s position

96. The applicant seeks declaratory relief in respect of the impugned decisions on four primary and overlapping grounds, being unreasonableness; non-compliance with the CP Act and Guidelines; deficiency of information for the CZMP; and no rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP. The applicant also submits that each decision was an irrational exercise of power.

97. In essence, the applicant’s complaint relates to the characterisation in the CZMP of the present extent of natural hazards at each of the Beaches. The applicant submits that it was a mandatory requirement for the extent of coastal hazards to be set out in a coastal zone management plan. The balance of a coastal zone management plan then proceeds on the basis of that assessment in setting out responses for managing those hazards. As such, the assessment of coastal hazards is a significant part of the preparation of a coastal zone management plan and one which, as the Guidelines reflect, requires an evidence based approach.

98. At the hearing, Mr Hutley put the applicant’s case more compendiously and submitted that the draft CZMP was not in accordance with the CP Act and the Guidelines in two ways: first, the plan did not comply with the form of the Guidelines; and, second, to the extent that there was a purported compliance with the description of coastal risks arising from coastal hazards, it lacked a fundamental evidential foundation and was legally unreasonable because of the application of an algorithm which had no relationship to the requirements in either the CP Act or the Guidelines.

99. The applicant submits that at all material times, the Beaches were (and are) “stable and in balance” and that the properties at the Beaches are not presently subject to coastal hazards of erosion, recession or wave runup and overwash. In these circumstances, there was no basis for the categorisation in the CZMP as “immediate, intolerable risk” and “extreme or high risk” from coastal hazards.

100. The applicant contends that there was no rational or proper basis for Council and the Minister respectively approving and certifying the CZMP which included such a characterisation about the present degree of coastal hazard at the Beaches. As a result, the CZMP did not comply with the CP Act or the Guidelines, and the decision to certify the CZMP and Council’s decision to adopt the CZMP (and presumably the antecedent decisions on or about 24 November 2015 and 22 August 2016) were unreasonable and irrational.

101. The applicant submits that these are serious matters in circumstances where the CZMP provided that based on those categorisations, planning controls would be imposed and Council could take other coastal management steps.

102. As considered in further detail below, the applicant submits that:

1. there was no evidence or other probative material to support the existence of a “coastal hazard” to the private properties on the dune barrier at the Beaches;

2. each decision-maker failed to have regard to the fact that the study comprised in the WP 2011 Report was limited, based on earlier historical information and did not reflect the current position;

3. each decision-maker failed to take the “legally necessary step” of commissioning further research to update the WP 2011 Report for the purpose, inter alia, of seeking to identify any real hazards to ensure compliance with s 55D(1) of the CP Act;

4. each decision-maker failed to have regard to the assessment in the Options Study that coastal hazards were “unlikely” in the “present timeframe”, the conclusion of WorleyParsons that there were no immediate hazards at Blueys Beach and the “known fact” that the properties at the Beaches had not been affected by any coastal hazards in 2010 or thereafter;

5. the CZMP did not comply with s 55D(1) of the CP Act or the Guidelines in respect of the categorisation of present natural hazards at either of the Beaches; and

6. the decision of the Minister to certify the CZMP was in jurisdictional error.

103. The applicant submits that if the Minister’s decision to certify is found to be invalid, then the CZMP should be set aside in whole or in part in order to remedy the failures set out below.

Ground 1 – unreasonableness

104. Notwithstanding the physical conditions and circumstances of the Beaches, the applicant notes that the CZMP characterises 11 unidentified lots at Boomerang Beach at “extreme or high risk” from coastal erosion at the present day and 21 unidentified lots at Blueys Beach at “extreme or high risk” from wave runup or overwash at the present day. Accordingly, the applicant says that each of the decisions to adopt and certify the CZMP and to so categorise the unidentified properties was so unreasonable that no decision-maker acting reasonably would have made those decisions and, as such, they were in jurisdictional error.

105. In circumstances where the assessment of the degree of the hazard as “extreme or high risk” was not a description of the hazard or the degree of hazard that had been assessed at either of the Beaches, the applicant submits that it was an assessment made in the absence of evidence or a justifiable basis and it was so unreasonable that no decision-making authority acting reasonably would have made.

Ground 2 – non-compliance with the CP Act and Guidelines

106. Prior to summarising the applicant’s submissions in relation to ground 2, it should be noted that there was significant overlap in the applicant’s submissions regarding grounds 2 and 3.

107. The applicant submits that the extent of the coastal hazards at the immediate, 2060 and 2100 timeframes in the draft CZMP was defined for the Beaches based on the WP 2011 Report and that a draft of the WP 2011 Report had been provided to Council in 2010 so by 2015, it was more than four years old.

108. The applicant submits that the WP 2011 Report itself was not sufficient to satisfy the requirements of the CP Act or the Guidelines in the following respects: the WP 2011 Report was prepared in 2010 and finalised in 2011, without further substantive work; the WP 2011 Report was a limited investigation only, being a desktop study; the WP 2011 Report relied on photogrammetric data only until 2006, although more recent data was available; because of the limited nature of the study, the WP 2011 Report also ignored the evidence available to WorleyParsons which WorleyParsons recognised was that the Beaches were accreting; the WP 2011 Report did not investigate the current position of the dunes at the Beaches in 2010 or at the time of the publication of the report; in applying maximum storm cut to average profiles after 1996 and 1964 respectively, the WP 2011 Report involved a double counting of the storm demand and ignored the ongoing accretion at both beaches; and an assessment of the position in 1996 or 1964 which ignored decades of subsequent accretion could not provide a proper basis for an assessment of the actual present hazard position at either of the Beaches in 2010.

109. The applicant submits that at all times from the delivery of the first draft of the WP 2011 Report to Council in 2010, both Council (and the relevant Minister) would have been aware of the suggested limitations of the report.

110. The applicant submits that in order to exercise the function of certifying the CZMP, the Minister must have had before her, at a minimum, materials which supported a conclusion that the CZMP had been prepared in accordance with the CP Act in relation to the assessment and categorisation of the degree of coastal hazards at the Beaches as immediate and extreme. The applicant contends that there was no evidence before the Minister that this was the case.

111. The applicant contends that the only documents the Minister had before her when certifying the CZMP were: a briefing note styled “Briefing Note to the Minister for the Environment and Heritage for Approval”; and three documents annexed thereto, being the Panel’s advice to the Minister on the revised CZMP; a summary of the OEH’s assessment of the revised CZMP against the Panel’s requirements for certification; and a letter to Council from the Minister.

112. The applicant submits that none of the documents before the Minister addressed the issue of the existence or degree of present day coastal hazards at the Beaches or how that had been treated in the draft CZMP.

113. The applicant submits that on the evidence available to the Court, the Minister had no evidence in front of her at the time of certifying the CZMP, or at any other time, which would enable her to form a view that there had been compliance with the CZMP and the Guidelines in relation to the description of coastal hazards required by the Guidelines.

114. Mr Hutley submitted that a failure to prepare the CZMP in conformity with (rather than in harmony with) the Guidelines would be an improper exercise of power, citing La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151 at 158. Mr Hutley contended that the draft CZMP did not meet the minimum requirements of the Guidelines in that it did not assess the extent of coastal hazards, it did not include maps indicating the extent of coastal hazards or a table for each hazard, nor did it provide a table categorising all private properties subject to coastal hazards according to the degree of the hazard.

115. Mr Hutley further submitted that the CZMP, on its face, did not meet the requirements of the Guidelines (with particular reference to s 3.2.4) which were mandatory, having regard to the provisions of the CP Act. Analogous to Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 (‘Smoker’) having regard to the mandatory language (that Council is to prepare in accordance with the Minister’s Guidelines, and the Minister is to certify they have been applied), the Guidelines are intended to be rules which circumscribe the discretion given to Council.

116. Mr Hutley noted that even if, contrary to the applicant’s principle submission, the Options Study formed part of the plan that was published in the Gazette, the draft plan was still not prepared in accordance with the Guidelines as there was nothing in the Options Study with tables and maps as required by the Guidelines.

117. Mr Hutley contended that if the Court concludes that the draft CZMP and the ultimate plan were not prepared in accordance with the Guidelines, the plan and either the certification by the Minister or the implementation by Council consequent upon certification would be outside jurisdiction and each act would be invalid. This is because one of the statutory preconditions for the exercise of power would not have been met, referring to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [23]-[29], [39]-[40], [46], [66], [72].

118. Mr Hutley submitted that whether the draft plan was in accordance with the Guidelines was a jurisdictional fact, the satisfaction of which enlivened power of the decision-maker (the Minister) to certify. Mr Hutley submitted that the absence of that jurisdictional fact stripped the Minister’s communication of certification of any mandatory obligation upon Council to enact it.

Ground 3 – deficiency of information for the CZMP

119. The applicant submits that the authors of the WP 2011 Report made it clear that their report was not sufficient for decision-making and identified further information which Council needed to obtain. At s 7.5 of the WP 2011 Report, the authors set out recommended data collection including directional wave data; pre and post storm beach profiling; repeat bathymetric surveys of the surf zone of the Beaches; and ongoing aerial photography and subsequent photogrammetry profiling and analysis.

120. The applicant submits that even with this “flawed” approach, the WP 2011 Report concluded that there was no immediate risk to Blueys Beach (Table 7-1). Ten dwellings south of Carramatta Close at Boomerang Beach were at immediate risk of coastal erosion and shoreline recession (Table 7-1).

121. The applicant contends that Council did not obtain any additional data of the recommended data collection set out in s 7.5 of the WP 2011 Report, and submits that no explanation has been provided by Council for its failure to obtain and analyse additional data as recommended by WorleyParsons in 2010.

122. The applicant notes that in March 2015, Council published a draft CZMP and in August 2016, a further draft was again submitted to the Minister for certification. The applicant submits that no action had been taken to do any more work or update the limited analysis of WorleyParsons in 2010 and the same characterisation of the degree of coastal hazards remained in place for the Beaches.

123. While Council obtained two subsequent reports in 2014, being the GPR Reports, these were limited in nature, confined to a Ground Penetrating Radar Investigation, and then to making revisions to the WorleyParsons 2011 Hazard Lines based on information about the present bedrock substrate at the Beaches obtained from the Ground Penetrating Radar Investigation. The applicant submits that neither of the reports support the characterisation in the CZMP that the degree of hazard presently existing was “immediate, intolerable risk” and “extreme or high risk”.

124. The final report obtained by Council for the preparation and finalisation of the CZMP was the Options Study prepared by BMT WBM Pty Ltd published in draft form in November 2014 and finalised in December 2015. The applicant submits that the Options Study did not do any fresh modelling or assessment of coastal hazards at the Beaches, or address the deficiencies in the WP 2011 Report, however stated:

While the previous hazard studies adopted various assumptions and limitations (WorleyParsons 2011), they remain the best available information on coastal risk.

125. The applicant contends that the authors had no better information than the WP 2011 Report undertaken in 2010 which was a desktop study. The applicant submits that by this stage, four years had gone by and Council and the Minister had been put on notice of the deficiencies of the WP 2011 Report.

225. I take some comfort in my view above from the comments of Ipp AJA (with whom Meagher and Powell JA agreed) in Chisholm at 42, albeit in relation to what constituted a “conservation plan”, where his Honour took the view that a conservation plan could be made up of a document to which other documents were attached or one document that refers specifically to paragraphs in other documents or indeed it could be constituted by part of a document that refers to and incorporates parts of another document in such a way that all the parts are readily identifiable as making out a single entity. Whilst in Chisholm his Honour found that it was a matter of fact and degree whether a set of documents could satisfy a particular description, on the matters before me, I consider that the Options Study may be similarly described, whether it is considered as part of the CZMP or whether it is incorporated by specific reference therein. I find that the Minister was entitled to certify the plan by reference to whether the requirements in the Guidelines had been satisfied in either the CZMP or the Options Study, its “companion document”.

226. In passing, I note that Ms Duggan reminded the Court that it was not part of the applicant’s claim, and not pleaded, that the plan, with an appendix, was not published in the Gazette. Ms Duggan also pointed out that this issue was not raised in the document styled “Real Issues for Determination” filed by each of the parties. Despite not being pleaded, Ms Duggan and Mr Lazarus separately expressed concerns that the applicant was attempting to argue that there was a problem with the gazettal because the Options Study itself was not gazetted. Ms Duggan submitted, and I accept, that this claim did not form part of the pleading. To the extent that such an argument was sought to be raised, I do not entertain it.

227. Further, I accept Mr Lazarus’ submission that if it is an “essential component of the applicant’s case” that “part of the CZMP was not gazetted”, it does not follow that this affected the validity of the anterior decisions of the Minister to certify and Council to make the plan. Mr Lazarus submitted, and I accept, that the primary challenge is to the certification decision, and in those circumstances, gazettal was “something that follows”.

228. In light of my findings that the Guidelines were directory rather than mandatory, and that the Options Study was part of the CZMP, it is then necessary to assess whether the CZMP (which includes the Options Study) complied with the CP Act and the Guidelines.

229. I will now consider the discrete aspects of the Guidelines which the applicant submits were not complied with. The applicant and Council provided tabular formulations with references to sections in the Guidelines and there is extensive evidence before the Court in relation to what was required and what Council undertook (or did not undertake). In summary, the Court was referred to and has considered the tabular formulations as follows:

1. Section 3.2.1 (at [56]-[57] above) provides that a coastal zone management plan is to assess the extent of coastal hazards; include minimum criteria for assessing the extent of coastal hazards as set out in Table 2; include a map indicating the extent of each hazard, including the extent of beach erosion hazard; and include a table for each hazard indicating number and types of buildings and infrastructure within each hazard area. Section 3.2.1 also requires the table to be used to assess the relative risks associated with these hazards based on likelihood and consequences, including any additional relevant information on risks arising from these hazards. The parties’ respective positions in relation to s 3.2.1 are:

2. According to the applicant, the CZMP did not assess the extent of the hazard but only assessed the degree of risk arising from coastal hazards; Council provided no assessment of coastal hazards in the CZMP; there are no maps included in the CZMP; and the CZMP does not include a table of hazards. Further, Tables 1-3 and 1-4 in the CZMP purport to value the consequence relative to each asset of coastal erosion, recession and inundation if the hazard, however unlikely, occurs, and assuming that the asset is lost forever as a result. These tables are not assessments of the physical risks from the hazard – the tables assume property or assets are lost forever, and value that loss.

3. According to Council, Council fully addressed the extent of each of the relevant coastal hazards; all the relevant maps are contained in the Options Study; the tables are set out in the Options Study; and the tables summarise the result of the risk matrix assessment.

4. The applicant notes that s 3.2.4 (at [58]-[59] above) provides that a coastal zone management plan is to categorise all private property subject to coastal hazards according to the “degree of the hazard” (while Council notes that the categorisation should be according to “degree of likelihood”) and in the case of erosion and recession, the category of Council’s intended response (which Council says should be based on Tables 5 and 6), and that this information is to be provided in a table. Section 3.2.4 further provides that where a property is located on the boundary between two hazard areas, the most seaward hazard area should be used, unless this area is less than 25% of the block (a requirement which the applicant appeared to label a “Rule”). The parties’ respective positions in relation to s 3.2.4 are:

5. According to the applicant, there is no categorisation according to the degree of hazard and no table of the nature required by s 3.2.4, and Table 1.3 was not prepared applying the Rule.

6. According to Council, it complied with s 3.2.4, and it says that is unclear how the requirement therein differs from the ‘table’ requirements in s 3.2.1. Council submits that the whole purpose of the table is to provide Council’s response to managing the risk, which the tables clearly do. In relation to what the applicant deemed a “Rule”, Council submits that no breach of this aspect of the Guidelines has been pleaded, and in any event, adoption of the most seaward categorisation of hazard is consistent with the precautionary principle and in many cases, the seaward side is where the relevant dwellings and other improvements are located.

7. The applicant notes that s 3.1 (at [55] above) provides that a coastal zone management plan should include a description of the nature and extent of risks to public safety and built assets from coastal hazards, and should include a description of property risk. In this regard, the applicant submits that Council’s description of the extent of risks (using its risk matrix to identify assets at extreme or high risk in Tables 1-3 and 1-4) was misconceived.

233. Having closely considered the extensive documentation, and considering the requirements summarised above, I am comfortably satisfied that the requirements of the Guidelines have been properly met.

234. As I have noted above, although the Guidelines provide, at s 3.1, that a CZMP in addressing coastal risks “should” include certain matters (see [55] above), the word “should” does not indicate an intention that it is mandatory to so include.

235. In light of my findings regarding the relationship between the Options Study and the CZMP and despite my findings that the Guidelines are not to be considered as having a “rule-like” quality, I find that in relation to s 3.2.1 of the Guidelines, the CZMP does, to the requisite extent, assess the coastal hazards set out in Table 2 to the Guidelines at pp 14 and 30-33 of the CZMP itself and in s 2 (“Risk Assessment for Coastal Hazards”) of the Options Study, particularly in ss 2.1, 2.2.2.2, 2.2.3.2, 2.2.4, 2.2.4.2 and 2.2.5 thereof. Considered together, this material addresses s 3.2.1 of the Guidelines and provides relevant maps and tables which, as Council submits, summarise the result of the “risk matrix assessment”.

236. Further, in relation to the provision of the map indicating the extent of each hazard, including the extent of beach erosion hazard with recession hazard areas, I consider that the maps at Appendix F to the Options Study depict (using dotted lines) the extent of the hazard and address the requirements in s 3.2.1 of the Guidelines.

237. To the extent that the CZMP “should” include a table for each hazard indicating the number and type of buildings and significant infrastructure within each hazard area, I consider that the tables set out in the Options Study, in particular Table 5-1 (“Erosion and Recession Asset Risk Register”) and Table 5-2 (“Wave Runup Risk Register”), considered with Appendix F (“Coastal Hazard Risk Maps”), and in particular Map A-08 (in relation to Boomerang Beach) and Map D-10 (in relation to Blueys Beach), address the “minimum criteria” for assessing the extent of coastal hazards. Further, I consider that Table 5-1 and Table 5-2 adequately summarise the result of the risk matrix assessment.

238. In relation to s 3.2.4 of the Guidelines, I accept Council’s submission summarised at [232(2)(b)] above and I find that Tables 5-1 and 5-2 in the Options Study reflect the requirements in s 3.2.4 (as well as s 3.2.1) of the Guidelines.

239. Leaving to one side the determination of whether each of the requirements in the Guidelines was satisfied by information in the CZMP (which I have found they were), I consider that the statutory scheme leaves the issue of whether the draft plan has been prepared in accordance with the requirements of the CP Act to the Minister, and, as I have noted separately, this is assessed when the Minister determines whether or not to certify the plan. Unless the Minister has made some justiciable legal error in the process of making her certification decision, whether the CZMP is in accordance with (or even in the alternative complies with) the Guidelines is, as a matter of fact, irrelevant.

240. Even if, contrary to my findings, there had been some non-conformity, invalidity will only result where there can be “discerned a legislative purpose to invalidate any act that fails to comply”. The appropriate test for determining validity is to “ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” and there is “no decisive rule” in making this discernment: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (‘Project Blue Sky’) at [91]-[96]. In Project Blue Sky, the Court identified a number of factors as leading to a conclusion that non-compliance resulted in invalidity, including: first, whether the process was an “essential preliminary” to the “exercise of a statutory power”, rather than a “breach of a procedural condition”; second, the presence or absence of a “rule-like quality” to the process, whether the process involves questions of policy or administration or a judgment to be formed about whether the process has met a policy standard; and third, whether the process involves goals that are indeterminately framed.

241. I accept Council’s submission that on the applicant’s case, even if there was some minor non-compliance with the Guidelines (that is, information was in a map rather than a table, information was put into an appendix or a companion document to the CZMP rather than the CZMP itself, or some of the requirements which were not minimum requirements but were nevertheless set out in the Guidelines were not fully complied with), the CZMP would be invalid in its entirety, together with all important environmental programs. Further, I accept Council’s submission, and find that it could not have been intended that if part of the CZMP was not gazetted, that that would affect the validity of the anterior decisions to certify and make the plan.

242. In summary, given my finding that the Guidelines were not mandatory, strict compliance with the terms therein was not necessary. Even if, contrary to my finding above, the Guidelines imposed mandatory requirements, given my finding that the Options Study was part of the CZMP, there was compliance with the Guidelines.

Whether there was a deficiency of information for the CZMP

243. The gravamen of the applicant’s position is that the draft CZMP relied upon older reports (including the WP 2011 Report) which were out of date and insufficient to satisfy the requirements of either the CP Act or the Guidelines, and that Council (if not the Minister) would have or should have been aware of these “limitations” since at least 2010. In these circumstances, the applicant submits that the Minister did not have before her, at a minimum, materials which supported a conclusion that the CZMP had been prepared in accordance with the CP Act and Guidelines, particularly in relation to the assessment and characterisation of the degree of coastal hazards at the Beaches. Put simply, and noting the overlap between grounds 2 and 3, the applicant submits that there was no evidence that would enable the Minister to form the view that there had been compliance with either the CZMP or the Guidelines, particularly in light of the fact that WorleyParsons had recommended that further material be obtained.

244. Although I have real doubt as to whether this ground is a recognised ground of challenge to an administrative decision, I consider that the applicant’s complaints simply relate to the adequacy and sufficiency of work that may have been done prior to the finalisation of the CZMP. To the extent that this ground is available, a matter about which I have doubt, I do not consider it to be compelling or persuasive. I have made findings above in relation to what I consider was required by the Guidelines and the manner in which the requirements therein have been addressed, and I adopt that analysis in considering this ground. To the extent that this ground is rooted in concerns regarding the sufficiency or otherwise of the WP 2011 Report, it is notable that that report, along with further later reports (the GPR Reports), informed the draft CZMP.

245. Further, the Panel, in undertaking what it described as a “thorough review” of the draft CZMP, also considered further material in addition to the WP 2011 Report (noted at [28] above) and, whilst indicating that the draft plan was “particularly comprehensive”, noted as follows:

...Recently updated photogrammetry and further investigations using ground-penetrating radar (GPR) have improved the robustness of the findings of the hazard definition work for these beaches...

246. Despite recommending that there was a need for further work to be done, the Panel was “satisfied with the proposed approach...” in the CZMP. As noted above, while the Panel required “some revisions” to improve the studies which related to the development of a “detailed management strategy for Blueys and Boomerang Beaches...”, these revisions were later attended to to the satisfaction of the OEH. I also note that the CZMP itself provided that it was to be reviewed every 5 to 10 years to undertake technical revision of supporting documents.

Whether there was a rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP

247. In considering whether there was a rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP, I will consider whether Council and the Minister had before them any rational or probative basis or justification for the categorisation in the CZMP of the degree of hazards as “extreme or high risk” of coastal erosion or recession at the present day for 11 unidentified properties at Boomerang Beach; and the degree of hazards as “extreme or high risk” of wave runup and overwash at the present day for 21 unidentified properties at Blueys Beach. I will then consider whether Council and the Minister had before them any rational or probative basis or justification for the decisions to make and certify the CZMP with those natural hazard characterisations.

248. The applicant submits that Tables 1-3 and 1-4 are not only non-compliant with the Guidelines, but are in error, are not a reflection of the assessment of likely hazards, and do not provide a rational basis for the CZMP because: first, Council has deployed a process which is contrary to that contemplated by the CP Act and Guidelines which emphasise the need for an assessment of the hazards sufficient to inform decisions; second, Council has embarked on its own specially developed process for the CZMP using guidelines for corporations to manage risk; third, Council has made errors in recording the results of that assessment in Tables 1-3 and 1-4 which are not consistent with the maps which Council now says are the most relevant; fourth, combining the assessment of hazard and the consequences if an unlikely event were to occur into a single rating does not provide a rational basis to develop coastal management action plans, and managing an area zoned as immediate to extreme high risk is very different from managing an area zoned low, rare or unlikely risk; and, fifth, the Guidelines emphasise the need for an accurate assessment of the hazard present in the area sufficient to make informed decisions and specify how this is to be done, and Council has not complied with that core requirement.

249. As I have noted above, the Coastal Hazard Risk Maps are Appendix F to the Options Study, and it is clear that these maps identify areas at the Beaches subject to varying levels of hazards, including erosion and recession and coastal inundation for various timeframes. In relation to each of the Beaches, the maps are entitled “erosion and recession risk map immediate planning horizon”, “erosion and recession risk map 2060 planning horizon” and “erosion and recession 2100 planning horizon”.

250. The applicant submits that the assessment in Table 1-3 and Table 1-4 of the CZMP, leaving aside the “algorithm argument”, has altered the assessment of risk, and that the categorisation of certain sites or property as “extreme or high risk” was made in the absence of any probative evidence. While also relevant to ground 3, being whether there was a deficiency of information for the CZMP, I do not accept this argument. I consider that it is both appropriate and likely necessary to have regard to the Coastal Hazard Risk Maps as well as, as submitted by Council, the tables containing the asset risk registers for the Beaches contained in the Options Study. I have already considered and determined that the Options Study is in fact part of the CZMP.

251. Although it is not abundantly clear on its face, the reference to 11 lots at Southern Boomerang in Table 1-3 of the CZMP and the reference to the 21 lots at Southern Blueys in Table 1-4 of the CZMP is relevantly a reference to the property shaded in orange on the relevant hazard mapping in Fig A-08 and Fig D-10. This understates the question of the relevance of the Options Study in consideration of the CZMP and the manner in which the Minister was able to certify the CZMP.

252. As submitted by Council, the relevant hazard mapping in the Options Study (Appendix A to the CZMP) styled “Coastal Hazard Risk Maps” identifies each of the Beaches and the relevant hazards. Notwithstanding my finding in relation to the manner in which the material in the Options Study and the CZMP relate to each other, it is clear from the evidence that the Hazard Risk Maps were determined from earlier material, including the WP 2011 Report which provided hazard lines for 2010, 2060 and 2100, and that these were considered and discussed in s 2.5.1 of the Options Study which dealt with “limitations to risk mapping” in some detail. This analysis also considered the limitations in the then available risk mapping.

253. The Options Study and the CZMP each contain detailed analysis and deal with risk assessment and risk management options for coastal hazards, and within those categories, consider and deal with the likelihood of coastal hazards, the consequence of coastal hazards, analysis of existing controls, and risk assessment for discrete areas including the Beaches. Although there has been criticism of what the applicant terms the “multiplication procedure”, the Options Study adopted an analysis of the likelihood of beach erosion hazards at the Beaches having regard to a “likelihood scale” detailed in Table 2-1 (and dealt with within s 2.2.1). That “scale” provides that the “likelihood” or probability of occurrence of coastal hazards has been determined through an analysis of coastal processes and historical beach responses and accounts for uncertainty in both the occurrence of hazards and shoreline response to sea level risk.

247. As submitted by Council, Table 2-1 assesses the “risk likelihood” of coastal hazards in various categories, including “almost certain”, “likely”, “unlikely” or “rare” in light of the history of occurrences, and Council chose that to base its likelihood scale on the Australian Standard for Risk Management (AS-NZS ISO 3100:2009) and its companion document. Section 2.2.1 of the Options Study states that the scale is tailored to both the long time frames for coastal planning and accounts for the potential for relatively infrequent but damaging events that can occur. The applicant’s complaint is that if the risks of the relevant hazards are assessed as “unlikely”, it follows that it is irrational or unreasonable to describe the relevant assets at the Beaches as being at “extreme or high risk”. I accept Council’s submission that this argument fails to understand the nature of the assessment undertaken by Council.

248. At s 3.2.1 of the Guidelines, it is suggested that the table for each hazard “should be used to assess the relative risks associated with these hazards, based on likelihood and consequences” (emphasis added). I consider that the primary question is whether that particular approach, which uses “consequences” as a component in determining risk, is one that is illogical and irrational in the circumstances. On the material before me, and considering the Guidelines and the manner in which the risks have been determined, I accept Council’s submission that the risk analysis undertaken in the plan did not necessarily have to be based only upon the likelihood of an occurrence of various hazards, but could also deal with the consequences thereof.

249. I do not consider that the applicant’s criticism renders Council’s approach illogical and/or unreasonable so as to invalidate that approach. To the extent that the applicant suggests that Council’s approach is “bespoke”, I consider the analysis of the level of risk as detailed in s 2.5 of the Options Study (explained by reference to the risk matrix detailed in Table 2-6 therein) is not such as to render the approach illogical and/or unreasonable. I also accept Council’s submission that the approach taken in the CZMP in this regard did not appear to receive any criticism from the Panel (nor the OEH).

250. For completeness, I also take into account that Council has accepted (and presumably will take into account in any further consideration relating to the CZMP) that there was a “transpositional” error in the headings to Table 1-4 on p 14 of the CZMP (as noted at [171] above). In the circumstances, I do not consider that “error” to be in any way determinative in my consideration of the applicant’s claims.

251. In the circumstances, I consider that the decisions to certify and adopt the CZMP (and the antecedent decisions) which in effect categorise the properties at “extreme or high risk” from coastal erosion and/or wave runup or over wash, given the detailed material before Council at the time (more particularly, the Options Study and the other reports referred to in the Options Study) and the Panel’s consideration thereof (and the OEH’s further consideration of the draft CZMP), were decisions determined based upon the significant and detailed background material. I consider the process by which the hazard risk maps were generated, although somewhat complex, was properly considered by Council. Even if there was a discernible mistake, it would not lead to invalidity.

252. In making my findings, I am conscious of the fact that if the statute does not mandate a particular methodological approach to be taken, it will be difficult to establish that a decision-maker’s methodology is legally flawed: Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977 at [573], [604].

253. Given the above, I accept the submission made on behalf of the Minister that the CP Act itself does not dictate how the issue of the risk is to be determined. Further, the manner in which risk was determined (detailed in s 2.3.2 of the Options Study) involved an explanation of how the “consequence values” were assessed (being part of risk assessment workshops conducted with representatives from various sections within Council and various government agencies). These values considered the separate social, economic and environmental consequence of each asset type the subject of consideration, and the manner in which risk and consequence was determined was on an asset by asset basis. While this approach may be considered “novel” or “bespoke”, considered in the light of the definition of “risk” in the Glossary in the Guidelines (at [52] above), it could not be said to be, in a Wednesbury sense, unreasonable in the sense that it lacked plausible justification. I do not consider that it was not open to Council to adopt the approach that it adopted.

254. Further, I accept Council’s contention that pursuant to the Guidelines, the risk analysis is not only to be based on the likelihood of an occurrence of an event but also its consequence. While I accept that the algorithm argument formulated by Mr Hutley has some weight, given the definition of “risk” in the Guidelines, and on the material before Council, the methodology adopted is not indicative of illogicality or unreasonableness.

Whether the impugned decisions were unreasonable

262. On the applicant’s case, the Minister either had no evidence before her because the Options Study was not part of the CZMP, or Council adopted a bespoke matrix which had a multiplication feature unknown to risk management, science or society such that there was no justification for the Minister and Council to prepare, certify and adopt the CZMP. That is, the applicant submits that each of the impugned decisions which brought about the adoption of the CZMP, and the categorisation of the unidentified properties as “extreme or high risk”, was so unreasonable that no decision-maker acting reasonably would have made those decisions.

263. The legal unreasonableness ground of judicial review, which is specifically raised in grounds 1 and 4, is frequently called Wednesbury unreasonableness in reference to the decision of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 682-683.

264. When a discretionary power is statutorily conferred, the power must be exercised reasonably for the legislature is taken to have intended that the discretion be so exercised: Kruger v Commonwealth of Australia; Bray v Commonwealth of Australia (1997) 190 CLR 1; [1997] HCA 27 at 36, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at 650 and Li at [23]-[29], [63]-[76], [90].

265. The bar is set high to establish legal unreasonableness, as confirmed by French CJ in Li at [28], [30]:

[28] [The concept of unreasonableness] reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

…

[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” (Citations omitted)…

…

266. Legal unreasonableness was more recently considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 wherein Kiefel CJ stated at [10]-[11]:

[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational…

[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies (citations omitted).

267. At [78]-[79], Nettle and Gordon JJ said:

[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.

268. In determining whether a decision is legally irrational or unreasonable, the nature and quality of the decision should be evaluated by reference to the subject matter, scope and purpose of the relevant statutory power and the attendant principles and values of the common law, including whether the decision is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” and “obviously disproportionate”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [7], [11] and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [65].

269. I am also conscious of Menzies J’s comments in Pestell at 323 wherein his Honour notes the distinction between a justifiable opinion and a sound opinion:

The definition of the land that may be subjected to a local rate is determined by the council's justifiable opinion of special benefit so that, if the so-called opinion could not be justified on any reasonable ground, then, the requisite opinion is lacking. There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.

270. Mr Hutley referred to D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 (‘D’Amore’) in relation to the means by which one can achieve an error of law. In D’Amore at [75]-[76], [78], Beazley P stated:

[75] A decision which has no basis in the evidence or which is contrary to the overwhelming weight of the material will also involve jurisdictional error: see Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777, cited in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23] and [24] per Gummow ACJ and Kiefel J.

[76] In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ stated, at [37]-[38]:

“The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned ...

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.” (emphasis added; citations omitted)

…

[78] In SZMDS, Crennan and Bell JJ accepted, at [119], that whilst every instance of illogicality or irrationality in reasoning did not give rise to jurisdictional error, jurisdictional error would be established if the illogicality or irrationality occurred at the point at which a decision maker was required to be satisfied of a fact or matter specified by the legislation. There was a question, however, in their Honour's consideration, as to the scope of illogicality and irrationality constituting jurisdictional error. As their Honours observed, at [129], labelling a decision as irrational or illogical involved more than an emphatic disagreement with the decision reached by the decision maker.

271. In light of the aforementioned authorities, for the reasons above and below, I do not consider that the decision of the Minister to certify the CZMP lacked an “evident and intelligible justification”. To this end, the statutory source of the power exercised by the Minister is clear. The scope, purpose and objects of the power are also clear. It could not be said that the Minister abused the power, or that the decision to certify was beyond power. Further, I do not consider that the Minister took into account an irrelevant consideration, failed to take into account a relevant consideration, or exercised the power to certify for any other purpose. While I accept that grievous error could result in a finding of unreasonableness, I do not consider that the Minister’s certification decision may be so characterised.

272. I consider that the decisions reached were ones that were reasonably open to both Council and the Minister. As is well accepted, whether an opinion of a decision-maker is sound or not is not a question for decision by a court. In reaching this view, I note the distinction between a justifiable opinion and a sound opinion in Pestell at 323.

273. While I accept the applicant’s submissions that there were references in the background reports to the Beaches having been “stable and in balance”, and there were references to certain risks being “unlikely” (in the “risk likelihood” table), there was material in the Options Study (s 2.2.3.2) regarding the use of various scientific and engineering criteria, including the Bruun Rule (where recession is considered using the sea level rise multiplied by the slope of the beach profile), and different criteria was also referred to in the WP 2011 Report. There was also consideration of the limitations to the use of those criteria and those reports. The expressions significantly relied upon by the applicant (being “stable” and “unlikely”), considered in the context of the whole of the material in the CZMP (which included the Options Study), and the earlier reports, lead me to the view that references to “unlikely” and “stable” are not determinative and do not satisfy the burden upon the applicant to establish an error of law on the basis of unreasonableness. I find that the applicant has not established that the impugned decisions “lacked an evident and intelligible justification” (Li at [76]) or are contrary to the “overwhelming weight of the material” such as to involve jurisdictional error: D’Amore at [75].

Severance

274. While the Court received detailed submissions in relation to severance, given my finding that the applicant has not made out any of its grounds for relief, I do not consider it necessary or appropriate to address severance.

Conclusion

275. As the applicant has not established any of its grounds for relief, the applicable order is that the Class 4 application be dismissed. As the usual course in Class 4 proceedings is that costs follow the event, unless an application is made by notice of motion for any alternate order within seven weeks (on or before 11 February 2020), I will order that the applicant pay the respondents’ costs.

Orders

276. The Court orders that:

1. The proceedings are dismissed.

2. Unless an application is made by notice of motion before 11 February 2020 for an alternate order, the applicant is to pay the respondents’ costs of the proceedings.

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Decision last updated: 24 December 2019