Coastal Ecology Protection Group Inc v City of Charles Sturt

[2017] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division: Application for Judicial Review)

COASTAL ECOLOGY PROTECTION GROUP INC & ORS v CITY OF CHARLES STURT

[2017] SASC 136

Judgment of The Honourable Justice Blue

21 September 2017

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY

REAL PROPERTY - CROWN LANDS - SOUTH AUSTRALIA

LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - EXERCISE OF POWERS

LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - EXERCISE OF DISCRETION - GENERAL POLICY RULES

LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - ULTRA VIRES OR ILLEGAL EXERCISE OF POWER

Judicial review action challenging council decisions to adopt a community land management plan and construct a shared use path through sand dunes.

In April 2016 the defendant Council resolved to adopt a community land management plan relating to coastal community land under its control pursuant to section 196 of the Local Government Act 1999. The objectives recorded in the plan were “to protect the coastal dune system and coastal vegetation and to provide convenient and controlled public access to the beach and environs”.

The plaintiffs contend that the management plan is invalid or alternatively unlawful because:

1. the Council failed to comply with its public consultation policy in relation to the preparation and adoption of the management plan in breach of sections 50 and 197 of the Local Government Act 1999;

2. the management plan does not state performance targets or performance measures as required by section 196(3)(d) of the Local Government Act 1999;

3.       the Council failed to have regard to mandatory relevant considerations, had regard to impermissible irrelevant considerations, proceeded on an incorrect misunderstanding and/or the decision was manifestly unreasonable.

The Council undertook public consultation in 2013 and 2014 in relation to the proposed construction of a coastal path between Grange and Semaphore Park.  This resulted in the development of and public consultation in relation to four alternative options.  Option 2 involved a three metre wide path constructed on or in the vicinity of a grassed strip immediately to the west of property boundaries.  Option 1 involved a combination of a one and a half to two metre natural surface path in the same location together with a bikeway on Seaview/Military Roads. 

After completion of public consultation, the Council administration devised a new option, designated Option 2B (Option 2 being redesignated Option 2A), involving the construction of a three metre wide path through the sand dunes.

In April 2016, the Council resolved to adopt Option 2 (without selecting between Option 2A and Option 2B) and that further consideration be given to, amongst other things, maximising privacy of residents and minimising environmental impacts.  This resolution authorised Council administration if it thought fit to proceed with the construction of Option 2B. 

The Council administration subsequently prepared a final alignment plan showing the location of the path as a combination of Option 2B (comprising a wooden boardwalk) through the dunes at the southern end and Option 2A (comprising a concrete path in the vicinity of the grassed strip) for the balance of the path.

In January 2017, the Council endorsed the final alignment plan prepared by the Council administration.

The plaintiffs contend that the April 2016 and January 2017 Council decisions are invalid or alternatively unlawful because:

1.       they are contrary to the management plan and in particular the environmental protection objective;

2.       alternatively, they are not authorised by any management plan because the purported management plan is invalid or unlawful for the reasons summarised above;

3. the Council failed to comply with its public consultation policy in breach of section 50 of the Local Government Act 1999;

4.       the Council failed to have regard to mandatory relevant considerations, proceeded on incorrect understandings and made a manifestly unreasonable decision;

5. construction of the coastal path is not in furtherance of or alternatively is inconsistent with coast protection and natural features preservation dedications in respect of part of the land under section 18 of the Crown Land Management Act 2009.

The Council takes issue with the plaintiffs’ contentions and also contends that:

1. section 199 of the Local Government Act 1999 does not impose a legal obligation on a council to manage community land in accordance with a management plan or alternatively does not apply to development as opposed to maintenance or alternatively it was only required to manage it in accordance with its own assessment of compliance with the management plan;

2. section 50 of the Local Government Act 1999 does not require a council to comply with its public consultation policy except insofar as it requires a council to take overt steps mandated by the Act itself;

3.       its public consultation policy did not require it to take steps except steps mandated by the Act itself;

4. section 196(3) of the Local Government Act 1999 does not require a council to state performance targets or performance measures or alternately it only requires a council to state what it considers are performance targets and performance measures;

5. the Crown Land Management Act 2009 does not require a council custodian to act in compliance with a dedication or alternatively only requires a custodian not to act inconsistently with the dedication purpose;

6. the Local Government Act 1999 does not impose mandatory considerations, preclude considerations or require a decision not to be manifestly unreasonable;

7.       the April 2016 and January 2017 decisions are not amenable to review on the grounds of failure to have regard to mandatory considerations, having regard to impermissible considerations or making a manifestly unreasonable decision.

Held:

1.       On the proper construction of the Council’s management plan, the access objective relates to access from the suburbs to the beach and not to a continuous path longitudinally through the dunes parallel to the coast (at [329]).

2. Section 199 of the Local Government Act 1999 requires a council to manage land in accordance with a community land management plan (at [342]), this requirement encompasses development and maintenance (at [349]) and this requirement is an objective one (at [353].

3.       The April 2016 and January 2017 path decisions are contrary to the management plan (at [355]-[358]) and are unlawful (at [363]).

4. On the proper construction of the Local Government Act 1999, a council is required to comply with its public consultation policy insofar as it sets out steps beyond those mandated by the Act (at [385]-[392]), a council is required to follow all steps set out in its policy and not just those steps overtly set out therein (at [401]) and the requirement is an objective one (at [406]).

5.       On the proper construction of the council’s consultation policy, the council was required to comply with it insofar as it required steps to be taken beyond those mandated by the Act (at [418]).

6.       The Council acted in breach of its consultation policy in adopting the management plan (at [428]-[429]), the management plan is consequently unlawful (at [432]) and the April 2016 and January 2017 path decisions are consequently unlawful (at [433]).

7.       The Council failed to comply with its consultation policy in respect of the path decisions (at [444]) and they are consequently unlawful (at [446]).

8. On the proper construction of subsection 196(3) of the Local Government Act 1999, a management plan is required to contain performance targets and performance measures (at [466]) and this requirement is objective (at [471]).

9.       The management plan fails to state performance targets or performance measures (at [484], [488], [489]) and is consequently invalid (at [492]) and the April 2016 and January 2017 path decisions are consequently invalid (at [501]).

10.     In making the April 2016 and January 2017 path decisions, the Council failed to have regard to a mandatory consideration, namely environmental considerations (at [620] and [633]) and the path decisions are consequently unlawful (at [654]).

11.     In making the April 2016 and January 2017 path decisions, the Council did not fail to have regard to other alleged mandatory considerations or proceed under misunderstandings (at [604], [638] and [650]).

12. Part 3, Division 2 of the Crown Land Management Act 2009 requires the Crown and a custodian of dedicated land to use the land in accordance with the dedicated purpose (at [735]).

13.     The test whether land is used in accordance with the dedicated purpose is whether the use is consistent with the dedicated purpose rather than whether it is in furtherance of the dedicated purpose (at [751]).

14.     Construction of the proposed coastal path has not been proved to be inconsistent with the dedication purposes (at [771], [776]).

15.     The plaintiffs are entitled to appropriate declaratory and/or injunctive relief (at [778]-[783]).

Crown Lands Act 2009 (SA) s 3, s 18, s 19, s 20, s 21, s 22, s 23, s 26, s 46; Crown Lands Alienation Act 1861 (NSW) s 1, s 3, s 5; Crown Lands Consolidation Act 1989 (NSW) s 6, s 80, s 84; Local Government Act 1999 (SA) s 6, s 7, s 8, s 50, s 92, s 123, s 151, s 156, s 193, s 194, s 196, s 197, s 198, s 199, s 200, s 201, s 202, s 207, s 223, s 232; Crown Proceedings Act 1992 (SA) s 9; Local Government Act 1993 (NSW) s 36; Waste Lands Alienation Act 1872 (SA) s 2, s 5, s 6, s 9, ss 12-44; Crown Lands Act 1929 (SA) s 5AA, s 244, referred to.
Council of the Municipality of Randwick v Rutledge (1926) 38 CLR 54; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Franklins Limited v Penrith City Council [1999] NSWCA 134; Hocking v The Southern Greyhound Racing Club Inc (1993) 61 SASR 213; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2012) 214 CLR 1; Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; Mabo v Queensland (No 2) (1992) 175 CLR 1; Marrickville Metro Shopping Centre Pty Limited v Marrickville Council (2010) 174 LGERA 67; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) (2012) 84 NSWLR 219; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 339 ALR 367; Notoras v Waverley Council (2007) 161 LGERA 230; Parramatta City Council v Hale (1982) 47 LGRA 319; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Oshlack v Lismore City Council [1998] NSWLEC 227; Oshlack v Rous Water [2013] NSWCA 169; Seaton v Mossman Municipal Council (1996) 93 LGERA 1; Schroders v Shoalhaven City Council [2001] NSWCA 74; The State of New South Wales v The Commonwealth (1926) 38 CLR 74; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Williams v The Attorney-General for New South Wales (1913) 16 CLR 404, discussed.

COASTAL ECOLOGY PROTECTION GROUP INC & ORS v CITY OF CHARLES STURT
[2017] SASC 136

Application for Judicial Review

BLUE J.

1. This is an action seeking prerogative, declaratory and injunctive relief in respect of decisions by the defendant to adopt a community land management plan in respect of coastal land under its care, control and management and to construct a shared-use path longitudinally through part of that coastal land.

2. At the beginning of 2013 the defendant City of Charles Sturt (the Council) commenced consideration of the construction of a coastal path through 4.7 kilometres of public coastal land between Grange and Semaphore Park. This land, apart from the Tennyson Dunes Reserve which was under the control of the Minister for Sustainability, Environment and Conservation, was either owned by the Crown and under the care, control and management of the Council or owned by the Council and under its own care, control and management. Much of the land owned by the Crown was subject to dedication and reservations pursuant to the Crown Lands Act 1929 (SA) (the Former Crown Lands Act) which were continued as dedications pursuant to the Crown Land Management Act 2009 (SA) (the Crown Land Act). These included a dedication of certain land for coast protection and a dedication of certain other land for preservation of natural features (the Dedications).

3. In February 2013 the Council commenced public consultation in relation to the proposed coastal path pursuant to its public consultation policy (the Consultation Policy) which it had adopted as required by section 50 of the Local Government Act 1999 (SA) (the Local Government Act or the Act).

4. In August 2013, after initial consultation, the Council resolved to form a project reference group of community representatives to prepare a shortlist of draft design options for the coastal path based on community input to date (stage 1); undertake consultation to gather broad community feedback on a preferred design option from the shortlisted options (stage 2); and then consider community views and endorse an option to progress to detail design (stage 3).

5. In September 2014 the project reference group completed stage 1 and recommended a coastal path comprising a combination of a 1.5 to 2 metre wide natural surface path near the western boundaries of the westernmost houses together with a three metre wide cycling path beside Seaview and Military Roads (Option 1). Other options supported by a small minority were a three metre wide natural surface path near the western boundaries of the westernmost houses (Option 2), a three metre wide path beside Seaview and Military Roads (Option 3) and a three metre wide path beside Military Road (Option 4). A report was prepared by a Council officer summarising the project reference group’s deliberations and a Planning Study was prepared by a Council consultant who had worked with the group. The Planning Study contained an extensive narrative describing existing conditions, including a detailed flora and fauna assessment, and contained plans, sections and photos showing the location of the path under the four options.

6. In September to November 2014 the Council undertook stage 2 of the public consultation. Almost equal preferences were expressed by members of the community for Options 1 and 2, with the other options attracting little support.

7. In February 2015, on instructions by Council administration, the Council’s consultant prepared a new Planning Study containing plans, sections and photos showing amongst others existing Option 2 redesignated Option 2A and a new option designated Option 2B with the path proceeding through the dunes. The Council did not engage in public consultation pursuant to the Consultation Policy in relation to Option 2B.

8. In April 2016 the Council resolved to adopt a community land management plan relating to all coastal community land under its control pursuant to section 196 of the Local Government Act (the Management Plan). The objectives recorded in the Management Plan were “to protect the coastal dune system and coastal vegetation and to provide convenient and controlled public access to the beach and environs”.

9. In April 2016 at the same meeting the Council resolved to adopt Option 2 from the February 2015 Planning Study and to delegate to Council administration the particular location of the path, including a choice between Option 2A and Option 2B (the 2016 Path Decision).

10. The Council administration prepared a final alignment plan showing the location of the path representing a combination of Option 2B, but now comprising a wooden boardwalk rather than a concrete path, through the dunes at the southern end between Terminus Street and Hallam Terrace and Option 2A being a concrete path near the western boundaries of the westernmost houses for the balance of the path.

11. In January 2017 the Council resolved to adopt the recommended final path alignment (the 2017 Path Decision).  The Council delegated to the Council administration the power to approve variations to path alignment.  The Council administration subsequently made two such variation decisions (the Delegated Decisions).

12. The plaintiffs contend that the Management Plan adopted by the Council in April 2016 is invalid or alternatively unlawful because:

    1.the Council failed to comply with the Consultation Policy in breach of sections 50 and 197 of the Local Government Act;[1]

    2.the Management Plan does not state performance targets or how the Council proposes to measure its performance against its objectives and performance targets as required by section 196(3)(d) of the Act;[2]

    3.the Council failed to have regard to mandatory relevant considerations, including consistency with other relevant official plans and policies about conservation, development and use of the land[3] and environmental protection;[4]   had regard to irrelevant considerations;[5] proceeded on an incorrect understanding;[6] and the decision to adopt the Management Plan was manifestly unreasonable.[7]

    [1]    Grounds 1.1 and 1.2.

    [2]    Ground 2.

    [4] Grounds 3.1, 3.2, 4.2 and 4.6. The plaintiffs also contend in the alternative to the above that the Council failed to have regard to compliance with its public consultation policy and section 196(3)(d) (Grounds 1.1, 2, 3.12, 4.1 and 4.4).

    [5]    A desire to limit the extent and duration of public debate concerning the proposed coastal path and/or the draft management plan: Ground 1.1.1 (first occurring).

    [6]    That prior consultation in relation to the proposed coastal path diminished the level of consultation required in relation to the draft management plan (Ground 1.1.2.1) and that the draft management plan was a plan for the construction of a coastal path (Ground 1.1.2.2).

    [7]    Ground 4.

13. The plaintiffs contend that the 2016 and 2017 Path Decisions and the Delegated Decisions (collectively the Path Decisions) are invalid or alternatively unlawful because:

    1.the construction of the proposed coastal path would be in breach of section 199 of the Local Government Act because:

    (a)     it is not in accordance with the Management Plan being inconsistent with the objective of protecting the coastal dune system and coastal vegetation;[8]  or alternatively

    (b)    it is not in accordance with a management plan due to the invalidity or unlawfulness of the purported Management Plan adopted in April 2016;[9]

    2.the Council failed to comply with the Consultation Policy in breach of section 50 of the Act;[10]

    3.the Council failed to have regard to mandatory relevant considerations, including applicable official plans and policies[11] and environmental protection;[12] proceeded on incorrect understandings;[13] and made manifestly unreasonable decisions;[14]

    4.the construction of the proposed coastal path is not in furtherance of, and alternatively is inconsistent with, the coast protection and natural features preservation dedications under section 18 of the Crown Land Act.[15]

    [8]    Grounds 6.1-6.3, 9 and 10, 10.6, 13.1 and 13.2.

    [9]    Grounds 5 and 9.

    [10]   Grounds 6.20, 6.21, 9 and 10.6.

    [11]   Ground 6.4 and 9

    [12]   Grounds 6.4-6.11, 6.14, 6.16, 6.18, 9, 10.1-10.5, 10.7, 11.1 to 11.6. The plaintiffs also contend in the alternative to the above that the Council failed to have regard to compliance with the management plan (Grounds 6.1-6.3, 6.13, 6.15, 9 and 13.3), its public consultation policy (Grounds 6.20, 6.21 and 9) and the dedications (Grounds 4.7, 6.12 and 9).

    [13]   That the path decisions had unqualified support from the relevant State Minister (Ground 6.17) and the Purported Dedications were valid (Grounds 7, 9, 11 and 14.2).

    [14]   Ground 11.

    [15]   Grounds 6.20, 6.21, 9 and 12.

1. The Council takes issue with these contentions and makes the following additional contentions:

   A.it was not required by section 199 of Local Government Act to manage community land in accordance with the Management Plan or alternatively it was only required to maintain it as opposed to developing it in accordance with the Management Plan or alternatively it was only required to manage it in accordance with its own assessment whether it was in accordance with the Management Plan;[16]

   B.it was not required by section 50 of the Act to comply with the Consultation Policy other than taking the overt steps mandated by subsection 50(4)[17] or alternatively it was only required to comply in accordance with its own assessment thereof;[18] and on the proper construction of the Consultation Policy it was not required to comply with it other than taking the mandatory subsection 50(4) steps;[19]

   C.it was not required by section 196(3)(d) of the Act to state performance targets or how it proposes to measure its performance against its objectives and performance targets[20] or alternatively it was only required to comply in accordance with its own assessment thereof;[21]

   D.it was not required by the Crown Land Act to act in compliance with the dedications or alternatively the requirement to act in accordance with a dedication was confined to not acting inconsistently with the dedication purpose;[22]

   E.it was not required by the Local Government Act to act as alleged in item 3 at [12] and [13] above; [23]

   F.the 2016 and 2017 Path Decisions are not amenable to review on the grounds advanced in item 3 at [13] above;[24]

   G.if the plaintiffs establish any of their contentions, it does not result in invalidity but only unlawfulness.[25]

   [16]   Response 2.3.

   [17]   Response 1.4 and 1.5.

   [18]   The Council does not plead this in its Response. However, it makes this contention in its closing address and the plaintiffs do not object to it on the ground that it is not pleaded. 

   [19]   Response 1.4 and 1.5.

   [20]   The Council does not plead this in its Response.  However, it makes this contention in its closing address and the plaintiffs do not object to it on the ground that it is not pleaded.

   [21]   The Council does not plead this in its Response.  However, it makes this contention in its closing address and the plaintiffs do not object to it on the ground that it is not pleaded.

   [22]   Response 8 and 12.

   [23]   Response 3, 4, 6 and 10.

   [24]   Response 5A and 9A.

   [25]   The Council does not plead this in its Response. However, it makes this contention in its oral address and the plaintiffs do not object to it on the ground that it is not pleaded. 

2. The Attorney-General intervenes pursuant to 9(2)(a) of the Crown Proceedings Act 1992 (SA) on issues of statutory construction, making submissions on amenability to review (the Council’s contention F) and the obligation of a custodian to act in accordance with dedications (the plaintiffs’ contention 4 and the Council’s contention D).

3. The major issues are:

   1.In relation to compliance with the Management Plan:

   (a)     does the access objective in the Management Plan address access between the suburbs and the beach or through any part of the Council coastal land and is the environmental objective paramount or equal to the access objective?

   (b) does section 199 of the Act require a council to manage land in accordance with a community land management plan or is it merely aspirational?

   (c)    does any requirement encompass development and maintenance or merely maintenance of the land?

   (d) does section 199 objectively require a council to manage community land in accordance with a community land management plan or does it merely require a council to manage the land in accordance with what it regards as being in accordance with the management plan?

   (e)    are the Path Decisions in accordance with the Management Plan?

   (f)     are the Path Decisions consequentially invalid or unlawful?

   2.In relation to the Consultation Policy:

   (a) is a council required by section 50 of the Act to comply with its public consultation policy other than taking steps mandated by the Act?

   (b)    is a council required to follow all steps set out in its policy or only those steps set out overtly therein?

   (c)    is a council objectively required to comply with its policy or merely required to comply with what it regards as compliance with its policy?

   (d)    was the Council required by the Consultation Policy to comply with it generally or only insofar as it referred to mandatory steps set out in the Act?

   (e)    did the Council fail to comply with the Consultation Policy in respect of the Management Plan?

   (f)     is the Management Plan consequentially invalid or unlawful?

   (g)    are the Path Decisions consequentially invalid or unlawful?

   (h).   did the Council fail to comply with the Consultation Policy in respect of the Path Decisions?

   (i)     are the Path Decisions consequentially invalid or unlawful?

   3.In relation to the content of the Management Plan:

   (a)     is a community land management plan required to contain performance targets and a statement how the council proposes to measure its performance against its objectives and performance targets or are these merely aspirational?

   (b)    is a community land management plan objectively required to contain performance targets and a statement how the council proposes to measure its performance against its objectives and performance targets or is it merely required to contain what the council regards as performance targets and what it regards as a statement of how it proposes to measure its performance against its objectives and performance targets?

   (c) does the Management Plan state performance targets and how the Council proposes to measure its performance against its objectives and performance targets within the meaning of section 196?

   (d)    is the Management Plan consequentially invalid or unlawful?

   (e)    are the Path Decisions consequentially invalid or unlawful?

   4.In relation to the Management Plan decision:

   (a)     was the Council required to have regard to the alleged considerations, and did it fail to do so?

   (b)    was the Council not permitted to have regard to the alleged considerations, and did it do so?

   (c)    did the Council proceed under a misunderstanding, and does it vitiate the decision?

   (d)    was the decision to adopt the Management Plan manifestly unreasonable, and does it vitiate the decision?

   (e)    is the Management Plan consequentially invalid or unlawful?

   (f)     are the Path Decisions consequentially invalid or unlawful?

   5.In relation to the Path Decisions:

   (a)     was the Council required to have regard to the alleged considerations, and did it fail to do so?

   (b)    did the Council proceed under a misunderstanding, and does it vitiate the decision?

   (c)    were the Path Decisions manifestly unreasonable, and if so does it vitiate them?

   (d)    are the Path Decisions amenable to review on any of these grounds?

   (e)    are the Path Decisions consequentially invalid or unlawful?

   6.In relation to the Dedications:

   (a)     is the Crown or a custodian required to use land in accordance with a dedication or is a dedication merely aspirational?

   (b)    is any requirement to act in accordance with a dedication breached by acting otherwise than in furtherance of the dedication purpose or by acting inconsistently with the dedication purpose?

   (c)    is construction of the coastal path pursuant to the Path Decisions contrary to the requirement to act in accordance with the Dedications?

   (d)    are the Path Decisions consequentially invalid or unlawful?

   A. BACKGROUND

   The plaintiffs

4. The first plaintiff Coastal Ecology Protection Group Incorporated (Coastal Ecology) was formed some time before 1997 and was incorporated in 2001. Its objects include the protection and enhancement of the natural coastal environment of metropolitan Adelaide, including preserving the integrity and ecology of the coastal sand dune system from the Grange Jetty to West Lakes Shore.

5. The second plaintiff Dr Lorimer Judith Packer has been an owner of and lived in a beachfront property on Seaview Road Tennyson since 1995. The term beachfront was consistently used by the parties between 2013 and 2017 and during the trial to refer to that part of the coastal dune system that is immediately adjacent to the western boundaries of the westernmost housing properties (beachfront). Depending on location, it may be 100 metres or more from the water.

6. Dr Packer has for many years taken an active interest in the dunes in the vicinity of Tennyson, including planting seeds, watering plants and regeneration of the habitat. She has been a member of Coastal Ecology since 1997. She was a member of the Coast Park Project Reference Group established by the Council referred to below.

7. The third plaintiff Professor Donald Howie has owned and lived in a beachfront property on Seaview Road Tennyson since 1993. He has for many years taken an active interest in the dunes in the vicinity of Tennyson, including planting seeds, watering plants and removing weeds and lawn. He has been a member of Coastal Ecology since 2003. He was a member and the chairperson of the Project Reference Group.

   The defendant

8. The Council is the local government council responsible under the Local Government Act in respect of an area (the Council Area) comprising the north western sector of Metropolitan Adelaide.

9. The Council Area is bounded to the north near the Gulf of St Vincent by Bower Road Semaphore Park (the northern boundary). It is bounded to the south near the Gulf of St Vincent by a line broadly parallel with and to the south of West Beach Road encompassing the West Beach Caravan Park (the southern boundary). It is bounded to the west by the Gulf of St Vincent (the western boundary). The western boundary extends approximately 11.5 kilometres from the West Beach Caravan Park to Bower Road Semaphore Park.

10. There are seven beachside suburbs within the Council area:

    ·West Beach (south of a point between Mellor Street and Ozone Street);

    ·Henley Beach South (south of Henley Beach Road);

    ·Henley Beach (south of Grange Road);

    ·Grange (south of Fort Street/Trimmer Parade);

    ·Tennyson (south of but including Mawson Close);

    ·West Lake Shore (south of but including Sandpiper Place);

    ·Semaphore Park (south of Bower Road).

11. Military Road is the western-most arterial road running south to north through the Council area. Land within the Council area lying to the west of Military Road can be divided into three areas:

    ·A southern area south of Bournemouth Street Tennyson. Seaview Road runs through the entire length of this area (west of Military Road) from Chetwynd Street West Beach to Bournemouth Street Tennyson. Intermittently there is an Esplanade west of Seaview Road with houses on its eastern side and open space public land on its western side. Otherwise there are houses on the western side of Seaview Road with rear boundaries adjoining open space public land on their western side;.

    ·A middle area between Bournemouth Street Tennyson and Shore Court West Lake Shore. This section has three separate blocks of housing allotments to the west of Military Road. Each block has one or more local courts leading off Military Road. The westernmost houses in these three blocks have rear boundaries adjoining open space public land on their western side. The blocks are separated by two areas of open space adjoining Military Road;

    ·a northern area between Shore Court West Lake Shore and Bower Road Semaphore Park. In the southerly two thirds of this section there are local courts leading off Military Road with housing in layouts similar to the housing blocks in the middle area. There is then an Esplanade with layouts similar to the Esplanade in the southern area. At the northernmost end there is open space adjoining Military Road.

12. Between 2013 and 2017, the Council’s elected members comprised the Mayor and 16 councillors. Up to November 2014 the Mayor was Ms K Alexander and thereafter the Mayor was Angela Evans.

13. Between 2013 and 2017, the Council had a Chief Executive Officer (initially M Withers and then Paul Sutton) to whom all Council officers and staff reported. There were three General Managers who reported to the Chief Executive Officer: the General Manager Asset Management Services (Jan Cornish), General Manager City Services and General Manager Corporate Services.

14. Ms Cornish was the General Manager with overall responsibility for the design and construction of a coastal path and for community land management plans within the Council. The Manager Urban Projects (Craig Daniel) nominally reported to the General Manager City Services but substantively reported to Ms Cornish in respect of the design and construction of a coastal path. Valli Morphett was the Community Consultation Coordinator and reported to Mr Daniel. Kelly Mader was in the Natural Resource Management Team. Jamie Hosking was Coordinator Urban Design. Tony Clisby was a property services officer and acting coordinator reporting ultimately to Ms Cornish. Allison Bretones was the Manager Open Space. Doris Gambiraza worked in the Council’s marketing and communication area.

    The intervenor

15. The Attorney-General intervened in the action as of right pursuant to section 9(2)(a) of the Crown Proceedings Act 1992 (SA) (the Crown Proceedings Act). Ultimately the Attorney-General makes submissions on two topics. The first topic is the amenability to review of the coastal path decisions on the grounds of failure to take into account relevant considerations, taking into account irrelevant considerations and unreasonableness. The second topic is the plaintiffs’ challenge to the coastal path decisions on the ground that they are contrary to the Dedications.

    History of coastal land

16. In 1836 when Europeans arrived in South Australia, there was a barrier dune system extending along the Adelaide metropolitan beaches from Seacliffe to Taperoo (the dune system). The dune system formed over thousands of years. It consisted of a landward barrier dune ridge approximately ten to 15 metres high with a series of seaward dune ridges separated by swales (valleys), with the height of the dune ridges generally progressively reducing seawards. The dunes had an average width between 200 and 300 metres. The dune system was colonised by native dunal shrubs and grasses and populated by various animals including reptiles, birds and insects.

17. The Torrens River discharged its waters on the landward side of the barrier dune to form wetlands and lagoons. The waters turned northwards and southwards but predominantly northwards behind the barrier dune. The waters did not generally discharge into the Gulf but remained in the wetlands. Only in times of flood, the waters that moved northwards discharged into the Gulf around the northern extremity of the dune system and the waters that moved southwards discharged into the Gulf in the area of Patawalonga Creek at Glenelg.

18. The prevailing currents and winds in and over the Gulf are from the south and hence the prevailing sand movement is from south to north. Over the course of at least 7,000 years, the prevailing sand movement resulted in the progressive northward extension of the barrier dune to create the Lefevre Peninsula and Torrens Island. The waters discharged from the Torrens River progressively moved further north, incorporating the western arm of the Port River, before discharging into the Gulf during floods.

19. After 1836, dunes were removed and deteriorated through grazing, sand mining, wood gathering and other activities. Villages were developed at Glenelg and Port Adelaide. Coastal villages were later developed at Brighton, Henley Beach, Grange, Semaphore and Largs Bay. The top of the dune system was flattened and its height reduced so that roads and houses could be constructed. However, the coastal villages remained isolated until after 1938.

20. In 1938, a channel was cut through the dunes near Burbidge Road at West Beach to enable the River Torrens to flow directly into the Gulf. In the post-war economic boom period of the 1950s and 1960s, the areas along the coast between the coastal villages were developed, with the last development being the West Lakes Development Scheme in the early 1970s.

21. With the exception of the Tennyson Dunes Reserve, by the beginning of the 1970s the barrier dune ridge had been flattened all along the metropolitan coast and varying amounts of seaward dunes had also been levelled. This left varying widths of sand dunes to the west of the houses along the metropolitan coast.

22. The discharge of the waters from the River Torrens at West Beach gradually killed the seagrass up to approximately 1 kilometre offshore. The seagrass meadows had trapped large quantities of sediment and comprised a buffer to the wave energy approaching the shore. With the killing of the seagrass, there was a dramatic increase in wave energy particularly during winter storms. By the 1960s this resulted in very substantial erosion of the sand in the sand dunes.

23. In 1972, the State government enacted the Coast Protection Act 1972 (SA) (the Coast Protection Act). The long title of that Act was “an Act to make provision for the conservation and protection of the beaches and coast of this State; and for other purposes”. That Act established the Coast Protection Board with the responsibility of protecting the coast from erosion, damage, deterioration, pollution and misuse and restoring the coast that had been subjected thereto. Since the early 1970s the Coast Protection Board has undertaken sand replenishment whereby sand is transported from areas where it has accreted to areas where it has eroded.

24. In the area between Terminus Street Grange and Third Avenue Semaphore Park, in the absence of sand management undertaken by the Coast Protection Board, some parts of the coast would be erosional and other parts would be accretional. In broad terms, Grange would be accretional, Tennyson would be erosional, West Lakes Shore would be stable and Semaphore Park would be erosional.

25. By the 2010s the only substantial dunes remaining were dunes at Tennyson and North Brighton (the Minda dunes). The dunes at Tennyson incorporate both the full width dunes in the Tennyson Dunes Reserve and the partial width dunes to the south and north of the Tennyson Dunes Reserve (collectively the Tennyson dunes). There is little left of the Minda dunes, being only the very back part of the dune landward of the main ridge which is gone. The remnant Minda dune is situated on private land.

    The Dedications

26. In the 1970s, by a series of proclamations the Governor dedicated or reserved various sections of the public coastal land owned by the State to specific purposes pursuant to subsections 5(d) and (f) of the Former Crown Lands Act and at the same time declared that that land should be under the care, control and management of the relevant predecessor of the Council pursuant to subsection 5(f1) of that Act.[26] It appears that some of the public coastal land had originally been dedicated as early as 1889 under the Crown Lands Act 1888 (SA).

    [26]   The Council’s predecessors included the City of Henley and Grange and the City of Woodville.

27. In general the dedications in respect of the public coastal land were not tendered but the schedule to the Management Plan shows that each of the 22 sections of the Council coastal land owned by the State was the subject of a dedication.

28. The first Dedication upon which the plaintiffs rely is dated 10 October 1974 in respect of sections 993 and 994 hundred of Yatala reserving the lands as a reserve for the “preservation of natural features” and declaring that they shall be under the care, control and management of the City of Woodville (the Natural Features Dedication). The land the subject of this dedication (the Natural Features Dedication Land) is the Council coastal land extending for about 150 metres between about 90 metres south of Hillview Avenue and about 60 metres north of Hillview Avenue (section 993).

1. The second Dedication is dated 29 January 1976 in respect of sections 987 and 988 hundred of Yatala reserving the lands for the purposes of a “coastal protection reserve” and declaring that they shall be under the care, control and management of the Corporation of the City of Woodville (the Coastal Protection Dedication). The land the subject of this dedication (the Coastal Protection Dedication Land) is the Council coastal land between Fort Street and the southern boundary of Moredun Reserve (just south of Moredun Street) (section 987) and a section of the Council coastal land extending from the northern boundary of Moredun Reserve for about 40 metres to the north towards Hillview Avenue (section 988).

   The coastal land

2. The public land lying between the western boundaries of the westernmost housing allotments (the property boundaries) and the Gulf along the Council’s 11.5 kilometre western boundary (the public coastal land) is owned either by the Council or the State of South Australia. The public coastal land situated in the middle area referred to at paragraph [24] above (the Tennyson Dunes Reserve) is vested in the Minister for Sustainability, Environment and Conservation and under his care, control and management. Subject to immaterial exceptions,[27] the balance of the public coastal land is either owned by the Council or is owned by the State but under the care, control and management of the Council (the Council coastal land).

   [27]   The Moredun Reserve vested in the Minister for Sustainability, Environment and Conservation and an area around the Torrens Outlet in West Beach/Henley Beach South vested in SA Water.

3. The term Tennyson dunes is ambiguous. Sometimes it is used to refer only to the Tennyson Dunes Reserve. More often it is used to refer to the dunes centred at Tennyson which extend from Grange to Semaphore Park. As noted at [38] above, I use the term Tennyson dunes in the latter sense and the term Tennyson Dunes Reserve in the former sense.

4. The Council coastal land is generally either open space (sand, sand dunes, grassed or parking areas) or roadways and footpaths in the case of the Esplanades. The Council coastal land is the subject of the Management Plan impugned by the plaintiffs.

5. At the beginning of 2013 the Council commenced consideration of the construction of a path or paths longitudinally through the remaining 40 per cent of the public coastal land (the residual coastal land) from Terminus Street, Grange to Third Avenue, Semaphore Park (4.7 kilometres).

6. In April 2016 and January 2017, by the Path Decisions the Council resolved to construct a path longitudinally through a total of 3.2 kilometres (the subject coastal land) of Council coastal land from Terminus Street Grange to Bournemouth Street Tennyson (1.9 kilometres) (the southern section) and from Shore Court West Lake Shore to Third Avenue Semaphore Park (1.3 kilometres) (the northern section).

7. In general terms, houses have been built on the eastern part of the original coastal dunes along the length of the southern and northern sections. There is a strip of land of varying width immediately to the west of the property boundaries on which exotic grasses and/or exotic shrubs have been planted or have grown (the grassed strip). The grassed strip is in most areas relatively flat or with a relatively constant slope towards the west, having been landscaped in the past, although in some areas it retains to a greater or lesser extent a natural irregular slope. As a result of encroachment, there is no hard and fast boundary between the grassed strip and the more natural dunes to the west.

8. In the southern section, the width of the grassed strip varies as one travels from south to north. Between Terminus Street and the vicinity of Fort Street, it is relatively wide being on average ten to 15 metres wide. Between the vicinity of Fort Street and Hallam Terrace, it is relatively narrow being on average four to nine metres wide. Between Hallam Terrace and Moredun Reserve, it is on average eight to 12 metres wide.

9. In the northern section, the width of the grassed strip tends to be more uniform. Between Shore Court and Mirani Court, it is generally ten to 12 metres wide. Between Mirani Court and Third Avenue, it is generally 17 to 30 metres wide.

10. In general, there are informal paths along the grassed strip in both the southern and northern sections. Members of the public are free to walk northwards or southwards along the grassed strip and commonly do so.

11. To the west of the grassed area, the land generally declines and then rises again to a ridge (the Swale).[28] There are then a further swale or swales and a further ridge or ridges to the west of the Swale, with the heights of the ridges and the differentials between the heights of the ridges and the lowest point of the swales generally being progressively less as one proceeds towards the sea. The western-most dune is called the “foredune”. There is then a gently sloping more or less flat beach to the water. The maximum width between the property boundaries and the sea is approximately 80 metres and it is significantly less in parts of the southern and northern sections. The Swale is generally of greater width than the more seaward swale or swales.

    [28]   Although this swale is only the easternmost of the swales west of the property boundaries, I call it the Swale because of the focus in the case on this swale compared to more westerly swales.

12. For several decades, the dunes have been fenced off on both the landward side and the beach side. There have been a series of fenced off narrow trails giving public access through the dunes to the beach (the east-west trails). On average there is one trail at the end of each east-west roadway giving access to the beach and one trail approximately halfway between such roadways.

    The Swale

13. The width of the Swale between Terminus Street and Hallam Terrace varies between about ten and 20 metres. Dr Semeniuk calculated the area of the Swale between Terminus Street and Hallam Terrace based on aerial photographs at 14,870 square metres. The distance between Terminus Street and Hallam Terrace is 950 metres and hence the average width of the Swale in this area is about 15 metres. Dr Semeniuk calculated that a six metre wide construction zone for construction of a boardwalk would occupy 38 per cent of the area of the Swale and a three metre wide boardwalk would occupy 19 per cent of the area of the Swale. I accept this evidence.

14. As a generality, the width of the Swale decreases as one proceeds northwards from Hallam Terrace Tennyson towards Third Avenue Semaphore Park.

15. Mr Hosking calculated the area between the property boundaries and the foredune over the southern section (a length of 1,720 metres) at 56,970 square metres, implying an average width between the property boundary and the foredune of 43 metres. This width is obviously much greater than the width of the Swale because it includes land to the east and west of the Swale. Mr Hosking calculated the area between the property boundary and the foredune over the northern section (a length of 1,320 metres) at 106,690 square metres, implying an average width between the property boundary and the foredune of 62 metres. Mr Hosking calculated that a six metre wide construction zone for construction of a boardwalk through the Swale would occupy 14 per cent of the area of the southern section and nine per cent of the area of the northern section; and a three metre wide boardwalk through the Swale would occupy seven per cent of the area of the southern section and five per cent of the area of the northern section. I accept this evidence.

16. Dr Semeniuk gave evidence that the “soil” at the bottom and sides (especially the lower sides) of the Swale is of greater richness and has greater nutrients compared to the soil at and towards the top of the ridges. The area at the bottom and sides of the Swale generally is better protected from the wind.  It has greater water or moisture.  It has more plants, larger plants and a greater diversity of plants. This is a result amongst other things of differences in soil, nutrients, moisture, wind and temperature. I accept this evidence. Some of these matters are referred to or implied in the Council’s Vegetation Management Plans and the Mader report. I infer that there are also greater numbers and diversity of animal life (birds and reptiles) at the bottom and sides of the Swale than at and towards the top of the ridges.

17. Dr Semeniuk gave evidence that the Swale generally has greater richness of soil, protection from the wind and number, size and diversity of plants than more seaward swales. I accept that evidence.

    The coast park initiative

18. In 2000 the Minister for Planning announced a vision for a coastal linear park extending 70 kilometres along the coast from Sellicks Beach to North Haven (the Coast Park). A steering committee comprising representatives from bodies including Planning SA, Transport SA, the Department of Environment and Heritage and the Onkaparinga, Holdfast Bay, West Torrens, Charles Sturt and Port Adelaide Enfield Councils was formed by Planning SA. Planning SA commissioned Parsons Brinckerhoff to prepare a concept plan in conjunction with the steering committee.

19. In 2001 the Adelaide Metropolitan Coast Park Concept Plan report by Parsons Brinckerhoff (the Coast Park report) was released. The report referred to the Coast Park as being the area of public open space along the coast. The report identified the vision for the Coast Park as:

    To provide and sustain a healthy, diverse and accessible Coast Park to be enjoyed by present and future generations

    and the goals as:

    ·Maintain and enhance open space at linkages ensuring free, safe and convenient access and facilities are available for all ages and abilities.

    ·Recognise, value and reinforce the diversity of the coastline, ensuring that development takes place in appropriate locations and that social, economic and environmental values are achieved.

    ·Provide appropriately for traffic and parking, ensuring convenient access for all people wishing to use the coast, taking into account the need for safety for pedestrians and cyclists.

    ·Recognise, value, protect and where possible, enhance sandy beaches, seagrass beds, remnant dunes, coastal reserves and buffers, and water quality along the coast.

    ·Pursue every opportunity to educate the community and decision makers on the vision for, and the special value of, the coast, and the lessons learnt about the management of our coastline.

20. The report identified several proposals, including proposals for linkages. Passages under the heading “3.3 Linkages Along the Coast” referred to a linear public pathway through the Coast Park and included:

    There is a recognised demand for a public pathway, incorporating recreational cyclist facilities, along the entire length of the Adelaide coast.…

    Over the next ten years action will be taken to complete the linkages along the coastline north of Kingston Park and to extend the pathway along the southern coastline. The path will incorporate, where necessary, boardwalks and cantilevered viewing platforms to ensure access along the entire coast. In environmentally sensitive areas the location of the shared path will require further investigation and consultation with the community. The path must meet minimum width and surface requirements to be suitable for shared use by pedestrians, cyclists, wheelchairs, prams, roller blades and other users.

    …

    Significant issues to be addressed include:

    1.     Perceptions of Private Ownership

    There are key sections of the coast where private development is either close to the coastline or has encroached onto the coastal foreshore reserve.… where necessary, privately owned land should be acquired to ensure the ongoing sustainability of the coast and to provide public access to this important public resource.

    2.     Environmental Considerations

    In some environmentally sensitive areas it may not be possible to ameliorate the impacts of the creation of a shared use path. Under these circumstances there may need to be a compromise with the location and/or form of the shared path. The shared path should not proceed if its development will be detrimental to the stability of the coastline or environmental protection imperatives.

21. Passages under the heading “3.6 Conservation Areas” included:

    Several land parcels and offshore features have general conservation value.

    In addition to the areas specifically identified in Chapter 2.1 of this report, limited areas of remnant dunes are identified along the coast. Some of the more significant areas are included within designated parks under the NPWS system. However, important remnant dunes also exist on private council-owned land for example, at Minda, West Beach and Tennyson, while successful dune rebuilding programs are in place along many other parts of the coast.

    The Council’s public consultation policy

22. On 26 August 1999 the Act came into operation. Section 50 required each local government council to prepare and adopt a public consultation policy.

23. In March 2000 the Council adopted a Public Consultation Policy (the Policy) and Public Consultation Implementation Procedure (the Procedure).  The Policy and Procedure cross refer to each other and it is common ground that the two documents in conjunction comprise the Council’s Public Consultation Policy within the meaning of the Act.

24. Each document was reviewed every two years, although not necessarily at the same time. The Policy was last substantively amended in March 2013. The Procedure was last amended in November 2012. There were two minor amendments made to the Policy in March 2015 and both were immaterial to the issues in this action. I refer to the combination of the Policy and the Procedure as in force from March 2013 onwards as the Consultation Policy.

25. Clause 3.2 of the Policy defines five ascending levels of engagement (referenced from the International Association of Public Participation Spectrum) representing the depth and complexity of the community engagement project. The levels of engagement are:

    1.Inform: Council provides balanced and objective information to the community which listens;

    2.Consult: Council provides options and the community contributes feedback on concerns and preferences;

    3.Involve: Council works with the community to ensure concerns and aspirations are understood and considered and the community participates;

    4.Collaborate: Council works in partnership with the community with project ‘ownership’ shared equally;

    5.Empower: Council delegates final decision-making power to the community.

26. Clause 3.2 of the Policy provides that the level of engagement is determined during the project planning phase and depends on project complexity, community interest, impact, political sensitivity, timelines and resource availability.

27. Clause 3.3 of the Policy and clause 3.2 of the Procedure provide that Council members are responsible for approving consultations with an engagement level of Involve or higher and the Chief Executive Officer is responsible for approving consultations with an engagement level of Consult or lower.

28. Clause 3.2 of the Procedure contains a level selection tool that can be used to assist in determining the appropriate level of engagement. This is a table showing degree of impact and political sensitivity on the vertical axis and degree of project complexity on the horizontal axis. However, clause 3.2 makes it plain that the table is only a potential tool and ultimately it is necessary to make a judgment call as to the level of engagement.

29. Clause 3.3 of the Policy requires Council members when making final decisions to consider the outcomes of community engagement activities and weigh up and deliberate the information, facts and recommendations provided. Clause 4.1 of the Procedure requires Council members to consider diverse community views, facts and information presented. Clauses 4.2 and 4.1 (second occurring) of the Procedure require the consultation coordinator to provide a community feedback report to assist elected member decision making in the Chamber.

30. Clause 3.4 of the Policy addresses public consultation requirements prescribed by the Act in respect of defined decisions. Clause 3.4 provides that “in these instances Council must comply with the [A]ct and/or follow the steps outlined in the Public Consultation Implementation Procedure”. However, clauses 1 and 3 of the Policy make it plain that the Consultation Policy applies generally to decisions by the Council and is not confined to decisions in respect of which the Act provides that it is mandatory for the Council to engage in community consultation.

    Council’s plans and policies

31. In 2005/2006, as part of the Coast Park initiative, the State government provided funding to councils to prepare vegetation management plans in respect of land within the proposed Coastal Reserve. The vegetation management plans were prepared not only in connection with the proposed Coast Park but more generally to address management issues which threaten the integrity of the region’s coastal native vegetation. The Department of Environment and Heritage in partnership with the Council prepared a series of vegetation management plans in respect of the coastal land including the Vegetation Management Plan Henley Beach to Tennyson Coastal Reserve in January 2006 (the Southern Vegetation Management Plan) and the Vegetation Management Plan Semaphore Park Coastal Reserve in September 2006 (the Northern Vegetation Management Plan).

32. The purpose of the Vegetation Management Plans is described at page 2 as follows:

    Within the City of Charles Sturt there are a number of management issues which threaten the integrity of the region’s coastal native vegetation. These issues have been identified as weed and pest animal invasion, pedestrian access, stormwater discharge, erosion and fire. A coordinated approach to management is crucial to prevent further degradation and to enhance the natural biodiversity of these fragile coastal environments.

    Within this context, the City of Charles Sturt has seen a need to produce a series of practical, issue specific, management plans to guide the implementation of native vegetation enhancement works within the dune system.

33. The Southern and Northern Vegetation Management Plans address conservation value as follows:

    The area is of importance as:

    ·A coastal dune system along the highly modified metropolitan coastline;

    ·It provides habitat and food resources for local birds, reptiles and insects in an urban area;

    ·It forms part of a potential significant corridor for indigenous fauna along the coastal strip between the Port Adelaide Enfield and Adelaide Shores dunes and potentially further along the coast;

    ·It contains indigenous plant species of local and regional significance;

    ·It has potential to reinstate pre-European plant and animal communities;

    ·It contains significant patches of remnant native fauna, which are of local conservation significance.

34. The Southern and Northern Vegetation Management Plans set out the following aims and objectives:

    The aims of this Management Plan are to:

    ·Protect and restore native vegetation, particularly those species of conservation significance;

    ·Increase the area of native vegetation within the Reserve;

    ·Protect existing native fauna and provide habitat and conditions that encourage their return (i.e. creation of habitat linkages/corridors);

    ·Contribute to the management of the potential and actual impact of fire on the Reserve in accordance with other management objectives;

    ·Encourage and support community participation in dune management and foster an appreciation of Reserve values within the wider community;

    ·Develop and recommend strategic actions for vegetation management and rehabilitation within the Reserve for Council, contractors and environmental, school and other community groups.

    The objectives of this Management Plan are to ensure that:

    ·The extent of weed invasion is reduced and native vegetation increased;

    ·Populations of feral animals are controlled;

    ·The Reserve is used appropriately;

    ·The number of access paths are minimised and those present are designed to reduce informal pedestrian access and are correctly aligned to prevent erosion (i.e. blowouts);

    ·Reserve boundaries are managed consistently with other management objectives and a cooperative approach involving adjacent land managers continues;

    ·An adaptive management approach is adopted, whereby management directions are regularly reviewed and adapted according to changes in the dune environment over time and as further information becomes available.

1. The Southern and Northern Vegetation Management Plans identify 21 indigenous species of flora within each coastal reserve. The Northern Vegetation Management Plan identifies six species of reptiles and 60 species of birds in the Semaphore Park Coastal Reserve.

2. In April 2008 the Council adopted an Environmental Sustainability Policy. The versions in force at the relevant times were the versions adopted in December 2013 and September 2016. The Policy was largely an umbrella policy that referred to and incorporated the Council’s current environmental plan, being initially “Towards One Planet Living: Greening the Western Suburbs 2008 – 2013” (the One Planet Environmental Plan) and then “Living Green to 2020: Living Green Environmental Plan 2014 – 2020” (the Living Green Environmental Plan).

3. In 2008 the Council adopted the One Planet Environmental Plan. The Plan included a commitment to continue to ensure Council works are planned, designed and implemented in a manner that cares for and protects native vegetation and the environment. It cross-referred to the Council’s Community Plan, but this plan was not tendered.

4. In 2014 the Council adopted the Living Green Environmental Plan. The Plan includes a commitment to continue to retain vegetation, improve habitat opportunities in open space areas and create artificial habitats; and to conserve, monitor and protect sites of biodiversity significance. It cross-refers to the Council’s Corporate Plan, but this plan was not tendered.

   The coastal path to 2013

5. In 1998 the Council constructed a shared use path for 950 metres between South Street and Marlborough Street. This was funded entirely by the Council.

6. In 2003 the Council commenced consideration of the construction of a concrete shared use path for 590 metres between the Henley Sailing Club West Beach and Ozone Street Henley Beach South. The Council engaged Parsons Brinckerhoff to manage the design and construction of the path and Atwood Management Services to conduct a comprehensive consultation process. The Council sought feedback on proposed layouts and design from the Community Coastal Reference Group. The Council conducted a workshop in March 2004 in which the consultant team presented options. Residents attended a meeting in February 2005 to view concept plans and speak with the designers. The path was constructed in 2006. This was funded entirely by the State government.

7. In 2006 the Council commenced consideration of the construction of a concrete shared use path for 390 metres between Grange Jetty (Jetty Road) and Terminus Street Grange. The Council engaged Fuller & Associates to undertake community consultation (encompassing the broader Grange Jetty Precinct Master Plan) including community workshops, meetings with local traders and meetings with local elected members. The path was constructed in 2009. This path and all subsequent paths were funded 50 per cent by the Council and 50 per cent by the State government.

8. In 2007 the Council commenced consideration of the construction of a concrete shared use path for 1,180 metres between the Southern Boundary and Henley Sailing Club West Beach. The Council undertook consultation with community and special interest groups including newsletters, stakeholder interviews, workshops and an Open Day. Concept plans were prepared in consultation with residents and stakeholders. The path was constructed in 2009.

9. In 2007 the Council commenced consideration of the construction of a concrete shared use path for 340 metres between Henley Beach Road and South Street Henley Beach. The Council undertook consultation including presentation of concepts by the designer at an Open Day. The path was constructed in 2009.

10. In 2008 the Council commenced consideration of the construction of a concrete shared use path for 680 metres between Recreation Parade and Bower Road Semaphore Park. The Council discussed four options with local community members and key stakeholder groups and then presented concept plans to the community for feedback. The path was constructed in 2011.

11. In 2009 the Council commenced consideration of the construction of a concrete shared use path for 1,020 metres between Ozone Street and Henley Beach Road Henley Beach South. The Council presented three options to the community to consider. The Council then engaged ETHOS Consulting to consult with residents and key stakeholders to conduct a comprehensive consultation process. There was then a community meeting at which members of the community voted on the three options. The path was constructed in 2013.

12. In 2011 the Council commenced consideration of the construction of a concrete shared use path for 480 metres between Grange Road and Grange Jetty (Jetty Road) Grange. The path was constructed in 2012.

13. In 2011 the Council commenced consideration of the construction of a concrete/bitumen shared use path for 650 metres between Marlborough Street and Grange Road Grange. The Council undertook a three stage consultation process, including initial feedback from the community followed by two public meetings conducted by an external consultant Ms Hirst.  The path was constructed in 2013.

14. In 2011 the Council commenced consideration of the construction of a concrete/bitumen shared use path for 380 metres between Third Avenue and Recreation Parade Semaphore Park. The Council undertook a three stage consultation process, including initial feedback from the community followed by two public meetings conducted by an external consultant Ms Hirst.  The path was constructed in 2014.

    The coastal path 2013 onwards

15. In 2013 the Council commenced consideration of the construction of a path for the remaining 4.7 kilometres between Terminus Street Grange and Third Avenue Semaphore Park. 

    Council meeting and resolutions

16. On 29 January 2013 there was a general meeting of Council members. The Council was provided with a report by the administration recommending that the Council engage in pre-engagement consultation with key stakeholders and individuals and undertake preliminary research before deciding on a community engagement plan.

17. The Council resolved to endorse the pre-engagement and preliminary research approach as included in the report and on completion that a further report be presented to Council with the outcomes of that work and a proposed comprehensive community engagement plan.

    Pre-consultation

18. In February and March 2013 the Council’s Community Engagement Coordinator undertook a series of pre-consultation meetings with 81 persons identified as key stakeholders and interested individuals. The persons consulted were:

    ·representatives of four dunes groups (Sandpiper Dune Group, Tennyson Dunes Group, Wild Endangered Dunes Group and Coastal Ecology);

    ·representatives of the Western Adelaide Coastal Residents Association;

    ·representatives of two Bicycle User Groups (Charles Sturt and Port Adelaide);

    ·the Charles Sturt Coastal Reference Group;

    ·representatives of the South Australian Herpetology Group;

    ·local residents;

    ·interested individuals.

19. Suggestions made for community consultation included an early forum at which different views could be expressed without debate and a project reference group to work collaboratively with Council staff in the planning and delivery of the Coast Park project. Strong sentiment was expressed that the Council should collaborate with community members throughout the consultation project with community members being actively involved.

20. In April 2013 an 11 page report entitled “Coast Park Grange to Semaphore Park Pre-Consultation Summary Report” was prepared by Council administration (the pre-consultation report). It described the pre-consultation as summarised above.

    Council meeting and resolutions

21. On 22 April 2013 there was a general meeting of Council members. The agenda included an eight page report by the General Manager Asset Management Services (Ms Cornish) summarising the pre-consultation report and recommending that a Speak Out consultation event be conducted on 4 June 2013. Appendix A comprised the pre-consultation report.

22. The report identified the objective of the Speak Out event as being:

    ·Provide community members and groups with the opportunity to share ideas and deliberate the future of Coast Park Grange to Semaphore Park.

    ·Gather community feedback to assist in the development of a set of principles and consultation approaches for the Coast Park project.

23. The Council resolved that the Speak Out event be conducted in the terms recommended by Council administration.

    Speak Out #1

24. Before the Speak Out (Speak Out #1) was conducted, the Council created an interactive display in the “internal street” which showed the pre-consultation results.

25. The Speak Out event was conducted on 4 June 2013. 14 members of the community spoke at the Speak Out event, which was attended by 141 people. Feedback was given by community members to the Council by:

    ·the 14 speakers;

    ·attendees writing comments on post-it notes on a five metre long aerial photograph;

    ·open feedback forms;

    ·feedback stations in the internal street.

26. In addition to such feedback, members of the community could make comments via:

    ·an online discussion forum on the Your Say Charles Sturt website active between 27 May and 14 June;

    ·submissions in hard copy or electronically.

27. The Council also conducted two workshops on 30 May and 16 July with 20 key stakeholders to develop a draft set of principles for the project. The 11 principles developed included privacy and security of adjacent homeowners and protection and enhancement of the biodiversity and heritage value of the Tennyson dunes (incorporating the Tennyson Dunes Reserve and the dunes to the north and south thereof).

28. A total of 329 people participated in the Speak Out consultation.

29. In July 2013 a 58 page report entitled “Speak Out Consultation Community Feedback Report” was prepared by Ms Morphett (the Speak Out #1 report). It described the process and outcomes of Speak Out #1 as summarised above.

    Council meeting and resolutions: decision on consultation

30. On 12 August 2013 there was a general meeting of Council members. The agenda included an 11 page report by the Manager Open Space, Recreation and Property summarising the Speak Out #1 Feedback Report and recommending community consultation (the 2013 path report). Appendix A comprised the Speak Out #1 report.

31. The 2013 path report recommended community consultation in the following terms:

    Proposed Consultation Approach

    A collaborative design approach is proposed in which community members partner with Council staff to co-create a solution to the complex Coast Park project.

    A collaborative approach will:

    ·assist in building local community trust

    ·further develop relationships with local community leaders

    ·tap into the extensive pool of local knowledge

    ·co-create a solution to the complex Coast Park project

    ·generate community ‘ownership’ of project outcomes

    ·further develop Council capabilities in this innovative form of community engagement

    Community feedback gathered during the Speak Out and in discussion with the key stakeholder group was supportive of the following proposed consultation approach.

    Consultation Step 1 – Form a Project Reference Group

    Engagement Level – Collaborate

    Project Reference Group (as outlined in the body of this report) to participate in monthly workshops, facilitated by an independent consultant, over a period of approximately eight months.

    Activities the group are to participate in include (but are not limited to):

    ·Discussion to establish terms of reference for the group

    ·Consider outcomes to date and ‘parked items’ of key stakeholders workshops

    ·Analyse community ideas and identify areas for further research (if required)

    ·Participate in field trips and site tours

    ·Develop a range of different concept design options based on community input to date. Given the complexity of this 4.8 KM of Coast Park, different solutions are likely to emerge for geographic sub-sections due to their unique characteristics.

    ·Refine design options and reach consensus on the shortlist of draft design options

    ·Work with staff to refine design options as necessary

    ·Assist in the planning and delivery of Coast Park Speak Out #2 (the next step of consultation)

    Reporting Milestone – Council Staff to refine and cost up short listed design options and prepare a report to Council to endorse short list options for broad community consultation purposes.

    Consultation Step 2 – Coast Park Speak Out #2

    Engagement Level – Consult

    ·Hold ‘Coast Park Speak Out #2’ (similar to the June event) to gather broad community feedback on preferred design option.

    ·Hold online consultation project to gather online community member feedback on preferred option.

    ·Consultation activities to support gathering feedback on options via an assessment matrix that supports community member assessment of options against project principles criteria

    ·Mail out design options to 3,500 local residents and the project mailing list to gather feedback on a preferred option.

    Reporting Milestone – Council Staff to report back to Council on Speak Out #2 consultation results. Council to consider community views and endorse an option to progress to detail design.

    Consultation Step 3 – Close the loop

    Update local community members and people on the mailing list about final layout of detailed design plan.

32. The report recommended that the persons invited to join the Project Reference Group be the 20 persons involved in the stakeholder workshops, being representatives of the groups and community representatives referred to at [93] above, together with the ten local residents and individuals who registered to join the Project Reference Group at the Speak Out #1 event.

33. The Council resolved that the proposed Coast Park consultation approach be endorsed in the terms recommended by Council administration.

    Project Reference Group

34. The Council engaged Janet Gould to act as independent facilitator of the Project Reference Group. There were originally 30 community representatives on the Project Reference Group but some members resigned after the preliminary meetings and not all members attended all meetings. The Group had preliminary planning meetings in December 2013 and January 2014.

35. In March 2014 the Council engaged Aspect Studios (Tim Conybeare and Ben Birdseye) as the Project Designer to design alternative coast path layouts and work in conjunction with the Project Reference Group in developing and refining the layouts.

36. The Project Reference Group met monthly between March and August 2014. Group meetings were attended by the community representatives together with the Mayor, the Semaphore Park and Grange Wards councillors, Council staff (including Ms Cornish and Mr Daniel) and Mr Conybeare and Mr Birdseye.

37. The Project Reference Group developed agreed terms of reference and an agreed set of principles being an elaboration on the draft principles created at the 2013 workshops.

38. For the purpose of discussion, the residual coastal land was divided into five segments. The southern section was divided into two segments designated Grange/Tennyson South (Terminus Street to Hallam Terrace) and Tennyson North (Hallam Terrace to Bournemouth Street). For these two segments, the Options (ordered from west to east) were:

    ·Option 1 “Beachfront”: a path located a few metres west of the property boundaries;

    ·Option 2 “ Seaview Road”: a path located on the western edge of Seaview Road;

    ·Option 3 Military Road West: a path located on the western edge of  Military Road;

    ·Option 4 Military and Lakes Edge: a path located on the eastern edge of Military Road/western edge of the West Lakes.

39. For these two segments, all but two members of the Project Reference Group preferred a combination of Option 1 being a narrow (two metre maximum) natural/compacted surface (such as crushed limestone) for pedestrians and slow cyclists together with Option 2 Seaview Road being a three metre path for faster cyclists. Option 1 alone received light support and one member preferred Option 2 alone.

40. The central section was a single segment designated Tennyson Heights/Dunes (Bournemouth Street to Shore Court). Most of the coastal land in this section comprised the Tennyson Dunes Reserve and was under the care, control and management of the Minister for Sustainability, Environment and Conservation and not the Council. The Project Reference Group was informed that the Minister had decided that the coastal path would not proceed through the Tennyson Dunes Reserve. For the central section, the Options (ordered from west to east) were:

    ·Option 1 Military Road West: a path located on the western edge of  Military Road;

    ·Option 2 Military Road East: a path located on the eastern edge of  Military Road;

    ·Option 3 Military and Lakes Edge: a path located on the eastern edge of Military Road/western edge of the West Lakes.

41. For the central section, all but four members of the Project Reference Group preferred Option 1 being Military Road West. Three members preferred a path on the perimeter of the Tennyson Dunes Reserve and one member preferred other options to be explored.

42. The northern section was divided into two segments designated Semaphore Park South (Shore Court to Mirani Court) and Semaphore Park North (Mirani Court to Third Avenue). For the northern section, the Options (ordered from west to east) were:

    ·Option 1 “Beachfront”: a path located a few metres west of the property boundaries;

    ·Option 2 Military Road West: a path located on the western edge of  Military Road;

    ·Option 3 Military Road East: a path located on the eastern edge of Military Road.

43. For Semaphore Park South, most members of the Project Reference Group preferred a combination of Option 1 being a narrow (two metre maximum) natural/compacted surface for pedestrians and slow cyclists as well as Option 2 Military Road West being a three metre path for faster cyclists.

44. For Semaphore Park North, most members of the Project Reference Group preferred a combination of Option 1 being a narrow (two metre maximum) natural/compacted surface for pedestrians and slow cyclists as well as Option 2 Military Road West being a three metre path for faster cyclists. One member preferred Option 1 alone and one member preferred Option 2 alone.

45. For all segments except the central section, there was a clear majority in favour of Option 1 being a narrow natural/compacted surface path within a few metres west of the property boundaries for pedestrians and slow cyclists together with Option 2 Seaview Road in the southern section and Military Road West in the northern section being a three metre path for faster cyclists.

46. On 27 August 2014 the Project Reference Group discussed a draft Coast Park Planning Study prepared and presented by Mr Conybeare. Agreed changes were made to the report.

47. The Project Reference Group also discussed the next form of consultation being the proposed broader community consultation. It was agreed that the consultation should proceed from 29 September to 7 November 2014 and include:

    ·a mail out of a project options information package and preference feedback survey to approximately 3,500 residents in the engagement catchment area;

    ·an online discussion forum on Your Say Charles Sturt website active over the consultation period;

    ·a Project Reference Group meeting on 22 October 2014 to which members of the public were invited;

    ·Speak Out #2 community events on 26 October and 28 October 2014 featuring a short presentation, question and answer session, an open forum, an options information display, a previous consultation result display and an option preference survey.

1. Subsection 22(1) provides that the Minister’s consent is required to the grant of a lease by any other person of dedicated land. Subsection 22(3) provides:

   The Minister may refuse consent to the grant of a lease if the grant of the lease—

   (a)would detract from any existing public use and enjoyment of the land; or

   (b)would prevent the land being used for the purpose for which it was dedicated; or

   (c)would otherwise, in the opinion of the Minister, be improper or undesirable.

2. Section 23(3)(a) and (b) employ the same concept of a use preventing or detracting from the land being used for the dedicated purpose. In this respect subsections 22(3) and 23(3) are consistent with subsection 18(6) and also support the inconsistency test.

3. The regime embodied in subsections 18(6), 22(3) and 23(3) is inconsistent with the furtherance test.

4. There is no evident rationale for rendering unlawful the use of dedicated land that is not inconsistent with or detrimental to use of the land for the dedicated purpose. If land can be used simultaneously for the dedicated purpose and another independent purpose not inconsistent therewith, there is no evident reason why such use should be rendered unlawful. Similarly, if the land is used for an independent purpose not inconsistent with or detrimental to its use for the dedicated purpose, there is no reason why such use should be rendered unlawful.  This is particularly so given that the obligation in respect of use of dedicated land is negative in nature (the Crown or the custodian not being under a positive obligation to use the land for the dedicated purpose). If by definition a use is not inconsistent with the dedicated purpose, the evident purpose of the dedication provisions does not require that such use be unlawful.

5. The statutory concept of dedication for a public purpose was modelled on common law dedications of land for the purpose of a highway. The test for unlawfulness of use of land dedicated for the purpose of a highway is the inconsistency test rather than the furtherance test.[146] The likely legislative intention was that the test for unlawfulness was also modelled on the common law test.

   [146] Harold Parrish and Patrick Freeman, Pratt and Mackenzie's Law of Highways (Butterworth & Co, 19th ed, 1956) 48-50; Benfieldside Local Board v Consett Iron Co. Ltd. (1877) 3 Ex D 54 at 64 per Kelly CB; McCarron v Noske Bros Pty Ltd [1929] SASR 433 at 440-441 per Richards J; Attorney-General ex rel Australian Mutual Provident Society v the Corporation of the City of Adelaide [1931] SASR 217 at 229-230 per Murray CJ; The Corporation of the City of Adelaide v Attorney General for South Australia (1931) 45 CLR 517 at 532-533 per Starke J (with whom Evatt J agreed).

6. By reference to the text, context and evident purpose of section 18, the test for unlawful use of dedicated land is the inconsistency test.

7. Turning to authorities on the New South Wales legislation, in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim),[147] the New South Wales Court of Appeal held that the furtherance test applied under the 1989 NSW Act. Basten JA (with whom Beazley, McColl and Macfarlan JJA agreed) said:

   The issue, as identified in this court, was whether, to be lawful, the use and occupation must be (a) for, or incidental to, the purpose of the reservation or (b) merely not inconsistent with, or not incompatible with, that purpose. …

   …

   The approach adopted by the primary judge, accepting the contentions of the Land Council, was, in effect, that a reservation under the Crown Lands Act bound the Minister according to its terms, until revoked. Thus, land reserved from sale could … be the subject of the exercise of other powers so long as those powers were exercised for the public purpose stated in the reservation, namely public recreation, or for some purpose incidental thereto. All other purposes were excluded. Grazing, as carried out by a private property owner, did not involve use of the land for the identified purpose. An instrument which purported to confer such a right was therefore invalid.

   By contrast, the Minister sought to apply the test of inconsistency or incompatibility to the permitted use of the land ... The Minister could, according to that submission, authorise uses of the land for any purpose, private or public, so long as those uses were not inconsistent or incompatible with the use resulting from the purpose identified in the reservation. On that approach, although grazing was not a form of public recreation, if it were not inconsistent or incompatible with public recreation, it was a permissible use of the land.

   …

   Where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised.

   …

   The opinion of the primary judge that the issue of a grazing licence over the claimed land was not a valid exercise of the Minister's power under the Crown Lands Act in respect of that land was correct and involved no error of law.[148]

   [147] (2012) 84 NSWLR 219.

   [148] At [5], [23]-[24], [37]-[38].

8. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,[149] French CJ, Kiefel, Bell and Keane JJ said:

   It may be accepted that the dedication of land has a limiting effect.  Its use, benefit and possession must conform to the purpose for which it was dedicated [citing the judgment of Isaacs J in The State of New South Wales v The Commonwealth extracted at [695] above]. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it.

   …

   While the dedications may not permit the claimed land to be actively used for purposes inconsistent with the dedications, occupation for the purpose of preserving the value of the land as an asset of the State of New South Wales so that it may then be used by the State to best advantage having regard to any dedications existing at that time is not occupation inconsistent with the dedications.[150]

   [149] (2016) 339 ALR 367.

   [150] At [43], [61]. (Emphasis added)

9. The plurality accepted that use for an unrelated purpose of preserving the value of the land as an asset of the State was not unlawful provided that it was not inconsistent with the dedications. Although the plurality did not refer to the New South Wales Court of Appeal’s decision in the Goomallee Claim case, the persuasive authority of the Goomallee Claim case is undermined by the judgment of the plurality in the High Court.

10. The New South Wales Court of Appeal in the Goomallee Claim case did not identify why a furtherance test as opposed to an inconsistency test was evident by reference to the text, context and evident purpose of the provisions of the 1989 NSW Act. Given the circumstances, and the subsequent decision of the High Court in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act, it is appropriate to determine the statutory construction of the South Australian provisions from first principles notwithstanding the decision of the New South Wales Court of Appeal in the Goomallee Claim case.

11. In conclusion, the test whether use of land is unlawful by reference to the dedicated purpose is whether it is inconsistent with use of the land for the dedicated purpose.

    Amenability to review and standing

12. As noted above, the Council sought to contend that its conduct is not amenable to review by the Court. I have ruled that, in the absence of pleading this answer, it is not open to the Council to advance this contention.

13. In any event, I would have rejected the Council’s contention on its merits. The only argument advanced by the Council in support of the contention was that the decision of the High Court in Williams v The Attorney-General for New South Wales[151] establishes that inconsistency between acts of a custodian of Crown land and the dedicated purpose of that land is not capable of founding a legal proceeding by anyone, citing passages from the judgments of the Justices of the High Court from which the extracts at [731] above are taken. However, as observed above, there was no statutory dedication in existence in Williams and the High Court merely decided that in its absence there was no legal basis for the claims made by the informants.

    [151] (1913) 16 CLR 404.

14. If I had held that on its proper construction the Crown Land Act did not give legal effect to statutory dedications, it would have followed that the Council’s conduct is not amenable to review on the ground of inconsistency with the statutory dedication. Conversely, given that I have held that legal effect is given to statutory dedications, the Council’s conduct is amenable to review on the ground of inconsistency with the statutory dedication.

15. As noted above, the Attorney-General sought to contend that the plaintiffs do not have standing to seek review by the Court on the ground that the Council’s conduct is inconsistent with the statutory dedications. I have ruled that, given the Attorney-General’s limited status as an intervener, it is not open to him to advance this contention.

16. In any event, I would have rejected the Attorney-General’s contention on its merits. The Attorney-General submits that, if dedicated land is used by a custodian in an impermissible fashion, only the Minister and possibly the Attorney-General or a person with his fiat can assert a breach. However, this does not address the circumstance in which it is the Minister who is allegedly using dedicated land in a manner inconsistent with the dedicated purpose.

17. If I had held that on its proper construction the Crown Land Act did not give legal effect to statutory dedications, it would have followed that no one (not even the Minister or the Attorney-General) has standing to seek review by the Court on the ground that the Council’s conduct is inconsistent with the statutory dedications. Conversely, given that I have held that legal effect is given to statutory dedications, the rules as to standing are those articulated by the High Court in Onus v Alcoa of Australia Ltd,[152] in which Gibbs CJ (with whom Stephen and Mason J relevantly agreed) said:

    A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.[153]

    Brennan J agreed with the test articulated by Gibbs CJ,[154] adding:

    A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner.[155]

    [152] (1981) 149 CLR 27.

    [153] At 35-36. (Citation omitted)

    [154] At 68-74.

    [155] At 74.

18. The Attorney-General does not contend that, insofar as the action is based on alleged inconsistency with the dedicated purposes, the plaintiffs in this action do not have an interest in the subject matter of the action beyond that of other members of the public. It is clear that they do. The plaintiffs have standing to bring the action insofar as it is based on alleged inconsistency with the dedicated purposes.

    Breach of requirement as to use

19. The next issue is whether construction of the coastal path pursuant to the Path Decisions is contrary to the requirement to act in accordance with the dedications.

    Coast Protection Dedication

20. The Coast Protection Dedication is dated 29 January 1976 in respect of sections 987 and 988 hundred of Yatala.  The Coast Protection Dedication Land is that part of the Council coastal land between Fort Street and the southern boundary of Moredun Reserve and from the northern boundary of Moredun Reserve for about 40 metres to the north towards Hillview Avenue.

21. The Dedication reserves the land for the purpose of a “coastal protection reserve” and declares that it is shall be under the care, control and management of the Council.[156] 

    [156] Originally the Council’s predecessor the Corporation of the City of Woodville.

22. The Council submits that the reference in the Dedication to “the coast” is a reference to the houses and infrastructure constructed on the land east of the property boundaries and does not include the sand dunes west of the property boundaries. The plaintiffs submit that the reference is to, or alternatively primarily to, the land west of the property boundaries.

23. The Dedication was made not long after the enactment of the Coast Protection Act and establishment of the Coast Protection Board. That Act defined “coast” for the purpose of the Act to mean amongst other things land within 100 metres landward of the mean high water mark or within three nautical miles seaward of the mean low water mark. While the selection by the legislature of 100 metres might be regarded as somewhat arbitrary in that say 90 metres or 110 metres might equally have been selected, it gives a plain indication as to the intent of the Dedication in applying to “the coast”.

24. I reject the Council’s submission. On the proper construction of the Dedication, the “coast” the subject of the reservation for coast protection purposes is the same coast which it is the Board’s responsibility to protect from erosion, damage, deterioration, pollution and misuse. The “coast” the subject of the reservation for coast protection purposes includes the sand dunes which are within the public coastal land. However, it also encompasses that part of the dunes on which houses and infrastructure have been constructed to the extent that they are within 100 metres of the mean high water mark.

25. On the proper construction of the Dedication, the protection the subject of the reservation for coast protection purposes is the same protection that is addressed under the Coast Protection Act, namely protection from erosion, damage, deterioration, pollution and misuse.

26. On the proper construction of the Dedication, the concept of “coast protection” the subject of the Dedication is a relatively large scale, or macro, concept. To take an extreme example, it does not extend to protection of every grain of sand, every blade of grass, every plant or every square metre.

    2016 Path Decision

27. When the Council made the 2016 Path Decision, it authorised the Council administration to proceed with construction of a three metre wide concrete path in the general vicinity of the path shown in Option 2A or Option 2B in the 2015 Planning Study. The Council administration was given the latitude to locate the concrete path in a range between the property boundaries and somewhere through the sand dunes.

28. I accept the evidence of Dr Semeniuk, which was not contested or challenged by the Council, that a concrete path is subject to breaking up into large chunks as a result of a severe storm, with the chunks causing damage to the coast.

29. Based on the information provided by the Coast Protection Board to the Council, I find that a concrete path located on or adjacent to the grassed strip as depicted in Option 2A would be protected by in excess of 80 cubic metres of sand to the seaward and the chance of its being broken up in a severe storm is so remote that construction of the path would not be inconsistent with the relevant land being used for the purpose of coast protection. Equally, based on the same information, I find that a concrete path located somewhere through the sand dunes as depicted in Option 2B would not be sufficiently protected by sand to the seaward and the chance of its being broken up in a severe storm and causing damage to the coast is substantial such that construction of the path in that location would be inconsistent with the relevant land being used for the purpose of coast protection.

30. If the Council administration had decided to locate the concrete path somewhere through the sand dunes, this would have been inconsistent with the relevant land being used for the purpose of coast protection. However, the Council administration never made such a decision and decided instead that the concrete path was to be confined to the vicinity of the grassed strip and the path to be located through the dunes was to be a boardwalk instead. No evidence was adduced to prove that the breaking up of a boardwalk would cause appreciable damage at a sufficient level to offend against the coast protection purpose.

31. As the Council has no intention of proceeding with construction of a concrete path through the dunes, there has been no actual breach by the Council of its obligation not to use the relevant land for a purpose inconsistent with the purpose of coast protection and, whatever the position may have been between April 2016 and January 2017, there is no such threatened breach. There is now no basis to grant an injunction or other relief by reference to the Coast Protection Dedication in respect of action that might otherwise be taken pursuant to the 2016 Path Decision.

    2017 Path Decision

32. The 2017 Path Decision involves the construction of a three metre wide concrete path in the vicinity of the grassed strip and a boardwalk through the Swale. For the reasons given above, by acting on the 2017 Path Decision there would be no breach by the Council of its obligation not to use the relevant land for a purpose inconsistent with the purpose of coast protection. There is no basis to grant an injunction or other relief by reference to the Coast Protection Dedication in respect of action that might be taken pursuant to the 2017 Path Decision.

    Natural Features Dedication

33. The Natural Features Dedication is dated 10 October 1974 in respect of sections 993 and 994 hundred of Yatala. The Natural Features Dedication Land is that part of the Council coastal land extending from about 90 metres south to about 60 metres north of Hillview Avenue (section 993).

34. The Dedication reserves the land for the “preservation of natural features” and declares that it shall be under the care, control and management of the Council.[157]

    [157] Originally the Council’s predecessor the City of Woodville.

35. No evidence was adduced to identify any feature or features of the land that as at 1974 might be characterised as natural and might be in need of preservation. Some evidence identifying natural features of the land capable of being the subject of preservation is essential to determine the nature and extent of the dedicated purpose in sufficient detail to make a finding whether the proposed use of the land by the Council would be inconsistent with the dedicated purpose. The onus of proof lies on the plaintiffs in this respect.

36. As in the case of coast protection, the preservation of natural features is likely to be a relatively large scale concept. The January 2017 plans show the path cutting across only a few square metres on the corner of the land the subject of the Natural Features Dedication. Evidence was adduced that there are presently exotic oleander bushes planted on this part of the land and no native vegetation. The 2017 Path Decision authorised the Council administration to make variations to the precise location of the path. However, wherever the path is located on the Natural Features Land, in the absence of proof what are the natural features the subject of the Dedication, the plaintiffs have failed to prove that there would be a breach of the Natural Features Dedication.

    Conclusion

37. The plaintiffs’ case based on the Dedications fails.

    I. CONCLUSION

38. The plaintiffs have established that, in making the Path Decisions, the Council breached section 199 by acting contrary to and not in accordance with the Management Plan and this results in unlawfulness of the Path Decisions, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.

1. The plaintiffs have established that the Management Plan is invalid because it does not state any performance targets or how the Council proposes to measure its performance against its objectives and performance targets and unlawful because the Council breached sections 50 and 197 by failing to comply with its Consultation Policy in respect of the draft Management Plan, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.

2. The plaintiffs have established that the Path Decisions are unlawful because the Council breached section 50 by failing to comply with its Consultation Policy in respect of the Path Decisions, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.

3. The plaintiffs have established that, in making the Path Decisions, the Council failed to have regard to a mandatory consideration, namely environmental considerations, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.

4. The plaintiffs have failed to establish that the use of the land for a coastal path pursuant to the 2017 Path Decision is inconsistent with the Dedications.

5. The plaintiffs are entitled to declaratory or injunctive relief or both in accordance with my reasons for judgment. I will hear the parties as to the precise terms of the relief to be granted.

   
   

[3]    Grounds  3.3-3.11 and 4.3