Narrawallee Beach Environmental Group Inc v Shoalhaven City Council

[2023] NSWLEC 78

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

22, 23, 24 May 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

The Court declares and orders as follows:

(1) the resolution of the Respondent on 2 November 2021 to alter the boundaries of the off-leash dog area at Narrawallee Beach and continue it (that is, the off-leash area), and to allow on-leash dog access from the beach entry points shown on BA1 to BA2 (that is, use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and BA2 to BA7 on the map annexed to that resolution purports to authorise an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW), but is of no force and effect as there has been no compliance with s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW).

(2) costs are reserved.

Catchwords:

CIVIL ENFORCEMENT – application of Part 4 of Environmental Planning and Assessment Act 1979 (NSW) – whether existing use of allowing dogs off-leash on public beach intensified such that development consent required

CIVIL ENFORCEMENT – application of Part 5 of Environmental Planning and Assessment Act 1979 (NSW) to resolution to vary arrangements allowing dogs off-leash on public beach permitting an activity – no review of environmental factors prepared as required when resolution made by council – review of environment factors subsequently prepared - whether relief should be granted

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), s 7.3

Coastal Management Act 2016 (NSW)

Companion Animals Act 1998 (NSW), ss 3A, 4, 5, 6, 6A, 6B, 7, Pt 2, Pt 3 ss 13, 14, 16, 20

Crown Land Management Act 2016

Dog Act 1966 (NSW), s 9

Environmental Planning and Assessment Act 1979 (NSW), s 1.5, Pt 4, ss 4.2, Div 4.11 ss 4.65, 4.66, 4.68, Pt 5, ss 5.1, 5.2, 5.6, 5.7, Pt 9, ss 9.45, 9.46

Environmental Planning and Assessment Regulation 2000 (NSW), cl 228

Environmental Planning and Assessment Regulation 2021 (NSW), cl 171

Environment Protection and Biodiversity Conservation Act 1999 (NSW)

Land and Environment Court Act 1979 (NSW), s 20

Local Government Act 1919 (NSW), s 367

Shoalhaven Local Environmental Plan 1985

Shoalhaven Local Environmental Plan 2014 (NSW)

Uniform Civil Procedures Rules 2005 (NSW), r 59.10

Cases Cited:

Burwood Council v Iglesia Ni Cristo(No 2) [2019] NSWLEC 159

Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42

F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504

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

South Sydney City Council v Houlakis (1996) 92 LGERA 401

Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21

Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Texts Cited:

GS Maguire ‘A Review of Dog Impacts to Beach-nesting Birds and Management Solutions’ (2018, Birdlife Australia)

Category:

Principal judgment

Parties:

Narrawallee Beach Environment Group Inc (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
C. Ireland (Applicant)
N. Hammond (Respondent)

Solicitors:
Dentons Australia (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2022/70823

JUDGMENT

Application of Environmental Planning and Assessment Act 1979 (NSW) to dogs off-leash on public beach

Second Further Amended Summons

Environmental Planning and Assessment Act 1979 (NSW)

Environmental Planning and Assessment Regulation 2000 (NSW)

Planning controls

Shoalhaven Local Environmental Plan 2014 (NSW)

Companion Animals Act 1998 (NSW)

Statement of agreed facts

Agreed issues for determination

Evidence

Applicant’s evidence

Council’s evidence

A. Effect of Council resolutions relating to dogs on Narrawallee Beach (issues 1, 3)

Summary of Council resolutions

Access Areas for Dogs Policies

Applicant’s submissions

Council’s submissions

Findings on (A)

B. Intensification of use (issue 7)

Applicant’s evidence

Evidence on increase in dog numbers

Dog number surveys

Evidence on noise impact

Conflict with dog owners and personal safety

Non-compliance with Companion Animals Act 1998 (NSW)

Evidence of environmental impact

Disturbance of shore birds

Dog prohibited area (northern)

Dog prohibited – on-leash transit to timed off-leash area (southern)

Timed off-leash dog access area

Reduction of shorebird numbers

Non-compliance with the Decision

Dog prohibited area (northern)

Dog prohibited – on-leash transit to timed off-leash area (southern)

Timed off-leash dog access area

Evidence on ranger patrols of the Beach

Applicant’s submissions

Council’s submissions

No intensification established

C. Relief (issues 10, 2)

Foreshore Reserves Policy

Review of Environmental Factors

Applicant’s evidence

Council’s evidence

Mr Coddington’s affidavit

Mr Coddington’s oral evidence

Dog Off-Leash Guide

Draft Access Areas for Dog Policy

Applicant’s submissions

Council’s submissions

Exercise of discretion finding

Costs

Declaration and order

JUDGMENT

Application of Environmental Planning and Assessment Act 1979(NSW) to allowing dogs off-leash on public beach

1. The Applicant Narrawallee Beach Environment Group Inc (the Applicant) challenges the validity of a resolution by the Respondent Shoalhaven City Council (the Council) on 2 November 2021 relating to the use of a defined off-leash dog area on Narrawallee Beach (the Beach) on the south coast of NSW. Recreational use of the Beach by people dates from 1905.

2. The Beach is zoned for public recreation under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). A formal reservation of the Beach for public recreation occurred in September 1978. The Council is a local authority for the Beach for the purposes of the Companion Animals Act 1998 (NSW).

3. The Applicant argues the resolution made on 2 November 2021 (the Decision) did not comply with Pt 4 or, alternatively, Pt 5 of the EPA Act and seeks declarations of absence of development consent or environmental assessment as required by the EPA Act (in contrast to invalidity of the decisions) and consequential orders. Under s 9.45 of the EPA Act any person can bring proceedings to remedy or restrain a breach of the EPA Act. Under s 9.46 the Court may make any order it thinks fit to remedy or restrain a breach if established. The Applicant bears the onus of proof of establishing its case on the balance of probabilities.

4. On 22 April 2022 the Court extended the time for the Applicant to commence this proceeding with respect to the Decision of the Council pursuant to r 59.10(2) of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR).

Second Further Amended Summons

5. The Second Further Amended Summons dated 24 May 2023 states as follows:

RELIEF CLAIMED

The Applicant claims the following relief:

1. Declare that the resolution of the Respondent on 2 November 2021 to alter the boundaries of the off-leash dog area at Narrawallee Beach and continue it (that is, the off-leash area), and to allow on-leash dog access from the beach entry points shown on BA1 to BA2 (that is, use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and BA2 to BA7 on the map annexed to that resolution purported to authorise a use of the beach that and [sic] requires development consent in the RE1 zone under the Shoalhaven Local Environmental Plan 2014 (Shoalhaven LEP), without granting that development consent.

2. An order restraining that purported use until development consent has been granted pursuant to a development application lodged and assessed in accordance with the Environmental Planning and Assessment Act (EP&A Act).

3. In the alternative to Orders 1 and 2 above, declare that the resolution of the Respondent on 2 November 2021 to alter the boundaries of the off-leash dog area at Narrawallee Beach and continue it (that is, the off-leash area), and to allow on-leash dog access from the beach entry points shown on BA1 to BA2 (that is, use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and BA2 to BA7 on the map annexed to that resolution purports to authorise an activity within the meaning of Part 5 of the EP&A Act, but is of no force and effect as there has been no compliance with s 5.5 of the EP&A Act.

4. An order restraining the Respondent from signing, designating or marking, and facilitating by the provision of dog faeces bins, dog faeces bag dispensers, and other dog-related infrastructure, or otherwise allowing or encouraging, the use of Narrawallee Beach or any part of it as an off-leash dog area with associated on-leash access.

5. An order that the Respondent forthwith:

a. remove from Narrawallee Beach all signage allowing off-leash and associated-on-leash use at Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and replacing it with signage notifying that off-leash and associated on-leash dog use is prohibited at all times (the latter signage to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act),

…

c. place a note on the Respondent’s website informing the public that off-leash and associated on-leash dog use of Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) is unlawful until either development consent is obtained authorising that use or an environmental assessment is carried out assessing that activity in accordance with the EP&A Act (such note to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act).

6. Such other orders as the Court deems fit.

7. Costs.

DECISION

1. The decision is the resolution no. MIN21.804 made by the Respondent at the Ordinary Meeting on the 2 November 2021 (Decision).

2. The Decision does not purport to grant development consent pursuant to Part 4 of the EP&A Act or approval pursuant to Part 5 of the EP&A Act.

3. The Applicant seeks relief from the whole of the Decision.

4. The Decision purports to continue the following previous decisions made by the Respondent:

a. Resolution no. MIN10.1445 made by the Respondent at the Council meeting held on 21 December 2010;

b. Resolution no. MIN13. 631 made by the Respondent at the Council meeting held on 21 June 2013;

c. Resolution no. MIN15.368 made by the Respondent at the Council meeting held on 23 June 2015 and reconvened on 24 June 2015;

d. Resolution no. MIN15.652 made by the Respondent at the Council meeting on 27 October 2015;

e. Resolution no. MIN16.541 made by the Strategy and Assets Committee of the Respondent on 16 July 2016;

f. Resolution no. MIN19.578 made by the Respondent at Ordinary Meeting on 27 August 2019;

g. Resolution no. MIN19.924 made at Strategy and Assets Committee of the Respondent on 10 December 2019;

h. Resolution no. MIN21.68 made at Strategy and Assets Committee of the Respondent on 9 February 2021; and

i. Resolution no. MIN21.120 made at Strategy and Assets Committee of the Respondent on 9 March 2021;

5. None of these previous decisions purport to grant development consent pursuant to Part 4 of the EP&A Act for, or assess or approve pursuant to Part 5 of the EP&A Act, the use of on-leash or off-leash dog walking at Narrawallee Beach.

6. Section 20 of the Land and Environment Court Act 1979 (NSW) (LEC Act) enables the Court to hear and decide this matter in its Class 4 jurisdiction.

Environmental Planning and Assessment Act 1979(NSW)

7. The following sections of the EPA Act current as at 2 November 2021 provided as follows:

Part 1 Preliminary

…

1.5 Meaning of “development”

(1) For the purposes of this Act, development is any of the following—

(a) the use of land,

…

(3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).

…

Part 4 Development assessment and consent

Division 4.1 Carrying out of development—with consent, without consent and prohibited

…

4.2 Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

…

Division 4.11 Existing uses

4.65 Definition of “existing use”

In this Division, existing use means—

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b) the use of a building, work or land—

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

4.66 Continuance of and limitations on existing use

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises—

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

…

4.68 Continuance of and limitations on other lawful uses

(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2) Nothing in subsection (1) authorises—

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

…

Part 5 Infrastructure and environmental impact assessment

Division 5.1 Environmental impact assessment (except for State significant infrastructure)

Subdivision 1 Preliminary

5.1 Definitions

(1) In this Division—

activity means—

(a) the use of land, and

…

approval includes—

(a) a consent, licence or permission or any form of authorisation, and

(b) a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.

determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out.

proponent, in relation to an activity, means the person proposing to carry out the activity, and includes any person taken to be the proponent of the activity by virtue of section 5.3.

…

...

Subdivision 2 Duty of determining authorities to consider environmental impact of activities

5.5 Duty to consider environmental impact

(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

…

5.6 Regulations for environmental impact assessment by prescribed determining authorities

(1) In this section, prescribed determining authority means a person prescribed for the purposes of the definition of public authority in section 1.4(1) so as to allow the person to be a determining authority within the meaning of this Division.

(2) The regulations may make provision for or with respect to the exercise by a prescribed determining authority of its functions under section 5.5 (environmental impact assessment functions), including (without limitation) provision for or with respect to the following—

(a) the manner in which environmental impact assessment functions must be exercised including the matters that must be considered in the exercise of those functions,

…

Subdivision 3 Activities for which EIS required

5.7 Decision of determining authority in relation to certain activities

(1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment, unless—

(a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity—

(i) prepared in the prescribed form and manner by or on behalf of the proponent, and …

Environmental Planning and Assessment Regulation 2000(NSW)

8. Clause 228 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), in force when the Review of Environmental Factors - Dog Off-Leash Access dated 28 January 2022 (the REF) referred to below in [122]-[127] was made, [I note that the Environmental Planning and Assessment Regulation 2021 equivalent Pt 8 Div 1 cl 171 commenced on 1 March 2022] provided as follows:

Part 14 - Environmental assessment under part 5 of the act

…

Division 1 Circumstances requiring an environmental impact statement

228 What factors must be taken into account concerning the impact of an activity on the environment?

(1) For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include—

(a) for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or

(b) for any other kind of activity—

(i) the factors referred to in the general guidelines in force under this clause, or

(ii) if no such guidelines are in force, the factors referred to subclause (2).

(2)  The factors referred to in subclause (1)(b)(ii) are as follows—

(a)  any environmental impact on a community,

(b)  any transformation of a locality,

(c)  any environmental impact on the ecosystems of the locality,

(d)  any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,

(e)  any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,

(f)  any impact on the habitat of protected animals (within the meaning of the Biodiversity Conservation Act 2016),

(g)  any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,

(h)  any long-term effects on the environment,

(i)  any degradation of the quality of the environment,

(j)  any risk to the safety of the environment,

(k)  any reduction in the range of beneficial uses of the environment,

(l)  any pollution of the environment,

(m)  any environmental problems associated with the disposal of waste,

(n)  any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,

(o)  any cumulative environmental effect with other existing or likely future activities,

(p)  any impact on coastal processes and coastal hazards, including those under projected climate change conditions.

...

Planning controls

9. The Beach is zoned RE1 Public Recreation under the Shoalhaven Local Environmental Plan 2014 (SLEP) Land Zoning Map. Under the SLEP development for the purpose of a recreation area requires consent in the RE1 Zone, except to the extent that recreational use is a lawful continuing use which is preserved by the operation of Div 4.11 of Pt 4 of the EPA Act.

Shoalhaven Local Environmental Plan 2014(NSW)

10. The SLEP provides as follows:

Land Use Table

Zone RE1 Public Recreation

1 Objectives of zone

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

2 Permitted without consent

Nil

3 Permitted with consent

Agriculture; Aquaculture; Boat building and repair facilities; Boat sheds; Building identification signs; Camping grounds; Car parks; Caravan parks; Charter and tourism boating facilities; Centre-based child care facilities; Community facilities; Eco-tourist facilities; Entertainment facilities; Environmental facilities; Environmental protection works; Function centres; Heliports; Information and education facilities; Kiosks; Markets; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Respite day care centres; Roads; Sewerage systems; Water recreation structures; Water supply systems

4 Prohibited

Any development not specified in item 2 or 3

Dictionary

…

recreation area means a place used for outdoor recreation that is normally open to the public, and includes—

(a) a children’s playground, or

(b) an area used for community sporting activities, or

(c) a public park, reserve or garden or the like,

and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).

…

Companion Animals Act 1998(NSW)

11. The management of dogs as companion animals is regulated by the Companion Animals Act which provides as follows:

Part 1 Preliminary

…

3A Principal object of Act

The principal object of this Act is to provide for the effective and responsible care and management of companion animals.

4 Policy regarding animal welfare

It is declared that the protection of native birds and animals is an objective of animal welfare policy in the State.

5 Definitions

(1) In this Act—

…

companion animal means each of the following—

(a) a dog,

(b) a cat,

(c) any other animal that is prescribed by the regulations as a companion animal.

…

council means—

(a) the council of an area under the Local Government Act 1993, or

…

public place means—

(a) any pathway, road, bridge, jetty, wharf, road-ferry, reserve, park, beach or garden, and

(b) any other place,

that the public are entitled to use.

…

6 Meaning of “local authority”

(1) The local authority for a place is the council in the area of which the place is located.

…

6A General duties of councils

(1) A council is required—

(a) to promote awareness within its area of the requirements of this Act with respect to the ownership of companion animals, and

(b) to take such steps as are appropriate to ensure that it is notified or otherwise made aware of the existence of all dangerous, menacing and restricted dogs (including dogs that might reasonably be considered to be the subject of a declaration under Division 1 or 6 of Part 5) that are ordinarily kept within its area.

(2) Subsection (1) does not limit the other functions that may be conferred or imposed on a council by or under this Act.

6B Duty to provide certain information to councils

(1) If an official person has any information about—

(a) a dog that the person reasonably believes is a threat to the public, or

(b) an incident involving a dog attacking or biting, without provocation, a person or animal,

it is the duty of the official person to provide that information to the relevant council (or councils) as soon as it is reasonably practicable.

(2) An official person does not incur any criminal or civil liability (including liability for breaching any duty of confidentiality) for providing any such information to a council if the information is provided in good faith.

(3) In this section, official person means—

(a) a police officer, or

(b) an officer of the Royal Society for the Prevention of Cruelty to Animals, New South Wales, or of the Animal Welfare League NSW, as referred to in paragraph (b) of the definition of officer in section 4 (1) of the Prevention of Cruelty to Animals Act 1979.

7 Meaning of “owner”

(1) Each of the following persons is the owner of a companion animal for the purposes of this Act—

(a) the owner of the animal (in the sense of being the owner of the animal as personal property),

(b) the person by whom the animal is ordinarily kept,

(c) the registered owner of the animal.

(2) A reference in this Act to the owner of a companion animal is a reference to each and all owners of the animal.

…

Part 2 Compulsory identification and registration of companion animals

…

Part 3 Responsibilities for control of dogs

Division 1 General responsibilities

…

13 Responsibilities while dog in public place

(1) A dog that is in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person.

(2) If this section is contravened—

(a) the owner of the dog, or

(b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person,

is guilty of an offence.

Maximum penalty—

(a) 10 penalty units except in the case of a dangerous, menacing or restricted dog, or

(b) 100 penalty units in the case of a dangerous, menacing or restricted dog.

(3) Any person (including an authorised officer) can seize a dog that is in a public place in contravention of this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the contravention continues after the owner has been told of the contravention. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog.

(4) A dog is not considered to be under the effective control of a person if the person has more than 4 dogs under his or her control.

…

(6) A local authority can by order declare a public place to be an off-leash area. Such a declaration can be limited so as to apply during a particular period or periods of the day or to different periods of different days. However, there must at all times be at least one public place in the area of a local authority that is an off-leash area.

14 Dogs prohibited in some public places

(1) Dogs are prohibited in the following places (whether or not they are leashed or otherwise controlled)—

…

(c) Recreation areas where dogs are prohibited (meaning any public place, or part of a public place, provided or set apart by a local authority for public recreation or the playing of organised games and in which the local authority has ordered that dogs are prohibited and in which, or near the boundaries of which, there are conspicuously exhibited by the local authority at reasonable intervals notices to the effect that dogs are prohibited in or on that public place or part).

…

(d) Public bathing areas where dogs are prohibited (meaning any public place or any part of a public place that is used for or in conjunction with public bathing or public recreation (including a beach), in which the local authority has ordered that dogs are prohibited and in which, or near the boundaries of which, there are conspicuously exhibited by the local authority at reasonable intervals notices to the effect that dogs are prohibited in or on that public place).

…

(h) Wildlife protection areas (meaning any public place or any part of a public place set apart by the local authority for the protection of wildlife and in which the local authority has ordered that dogs are prohibited for the purposes of the protection of wildlife and in which, or near the boundaries of which, there are conspicuously exhibited by the local authority at reasonable intervals notices to the effect that dogs are prohibited in or on that public place).

(2) If a dog is in a place in which dogs are prohibited under this section—

(a) the owner of the dog, or

(b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person,

is guilty of an offence.

(3) Any person (including an authorised officer) can seize a dog that is in a place in which dogs are prohibited under this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the owner fails to remove the dog from the place when the officer directs the owner to do so. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog.

…

(7) A local authority is authorised to make the orders contemplated by this section.

…

16   Offences where dog attacks person or animal

(1)  If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal—

(a)  the owner of the dog, or

(b)  if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person,

is guilty of an offence.

(1AA)  If a dog (other than a dangerous, menacing or restricted dog) rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal—

(a)  the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or

(b)  if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person.

(1AB)  If a dangerous, menacing or restricted dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal—

(a)  the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or

(b)  if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person.

(1A)  The owner of a dangerous dog, a menacing dog or a restricted dog is guilty of an offence if—

(a)  the dog attacks or bites any person (whether or not any injury is caused to the person), and

(b)  the incident occurs as a result of the owner’s failure to comply with any one or more of the requirements of section 51 or 56 (as the case requires) in relation to the dog.

(2)  It is not an offence under this section if the incident occurred—

(a)  as a result of the dog being teased, mistreated, attacked or otherwise provoked, or

(b)  as a result of the person or animal trespassing on the property on which the dog was being kept, or

(c)  as a result of the dog acting in reasonable defence of a person or property, or

(d)  in the course of lawful hunting, or

(e)  in the course of the working of stock by the dog or the training of the dog in the working of stock.

(3)  This section does not apply to a police dog or a corrective services dog.

(4)  If, on the trial of a person charged with an offence against subsection (1AA) or (1AB) the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against subsection (1), and the person is liable to punishment accordingly.

(5)  For the purposes of this section, recklessness may also be established by proof of intention.

…

20 Dogs defecating in public place

(1) If a dog defecates in a public place—

(a) the owner of the dog, or

(b) if the owner is not present at the relevant time and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person,

must immediately remove the dog’s faeces and properly dispose of them.

(2) Proper disposal includes disposal in a rubbish receptacle designated for the purpose by the local authority. It is the duty of a local authority for a place that is commonly used for exercising dogs (including an off-leash area) to provide sufficient rubbish receptacles for the proper disposal of the faeces of dogs that defecate in the place.

(3) This section does not apply when the dog is an assistance animal being used bona fide by a person with a disability to assist the person and the person’s disability makes compliance by the person with this section not reasonably practicable.

…

Statement of agreed facts

12. The parties agreed the following statement of agreed facts (SOAF) except two words where indicated (‘considered’ in pars 40-41):

Historical use of Narrawallee Beach

1. On 30 December 1905, The Ulladulla and Milton Times reports on Boxing day activities with the region, including as follows:

“Everybody and his wife had arranged to go picnicking- horses, saddles, buggies, sulkies, bicycles, and everything that would move and carry a passenger was engaged for the outing. What beach was not visited and what place of resort overlooked?…Pleasure seekers found everywhere- Narrawallee, Conjola…”

2. In the 1920’s, Evol Knight attended holidays with the Garrad family in the 1920s – she recalls reheating and eating rabbit stew on Narrawallee Beach, whilst lobster pots where checked, having a wonderful time collecting pipis and doing a spot of fishing. [The Narrawallee Story Retold, by Alex McAndrew (p53)]

3. On 26 August 1938, the Nowra Leader reported on the public gathering at Narrawallee Beach to mark the opening of new public “Progress Road” constructed by the “Progress and Tourist Association”. A ‘public picnic and sports programme’ occurred on Narrawallee Beach as part of the road opening celebrations.

4. On 3 March 1939, the Nowra Leader reported that on the activities of the local fishing club, the “Progress Fishing Club”, noting that their next completion was to be held atNarrawallee Beach.

5. On 1 December 1939, the Nowra Leader reported on a fishing competition held by the “Milton Fishing Club” at Narrawallee Beach.

6. In the 1950s – 1960s, Victor Millard (“Bluey”) fostered tourism at Narrawallee Beach owned and operated a guest house/holiday cottage/camping area by Narrawallee Beach. Jim and Eileen Wood, regular client’s of Bluey and who stayed regularly during this period, fished off the beach or rocks, and set lobster pots off the northern end of Narrawallee Beach. [The Narrawallee Story Retold, by Alex McAndrew (pp 102 – 105)].

7. In the 1950s, a Milton resident “indulged their guest by hiring a taxi to take him down to Narrawallee Beach for a picnic”. [The Narrawallee Story Retold, by Alex McAndrew (p.100)]

8. In the 1960s, Boyd Walters commences visiting Narrawallee Beach for holidays.

9. In 1962, advertisements for the Narrawallee Beach Estate housing subdivision appealed to the area’s long-established fishing, and magnificent surf beach. [The Narrawallee Story Retold, by Alex McAndrew (p115 - 116)]

10. In 31 August 1963, the Canberra Times published an advertisement for Narrawallee Surf Beach Estate. The article appealed to the area’s “wide popularity”, renown fishing and indicated that 374 lots of the Estate had already sold.

11. In 1965 to 1973, Dianne O’Donnell visited Narrawallee as a child during school holidays.

12. In 1976, the Council, through the Narrawallee Progress Association and Narrawallee Foreshores Committee, erected protective fences and provided walkways to Narrawallee Beach [The Narrawallee Story Retold, by Alex McAndrew [p 127]].

13. On 8 September 1978, Lot 7009 DP 1116370 was reserved for ‘public recreation.’

14. In 1994, kite-flying took place in winter and summer months on Narrawallee Beach: “It’s mostly winter that sees kite-flying on Narrawallee Beach, but in January 1994 beachgoers witnessed a most novel and powerful kite which pulled its owner John Murray of Little Bay, Sydney, and his interesting three-wheel beach vehicle briskly along the sands in either direction.” [Narrawallee Storey Retold, by Alex McAndrew (p162)]

15. In 1995, Stephen Campbell moved to Narrawallee and commenced walking “along Narrawallee Beach from south to north and return almost daily”.

16. On 27 August 2014, Milton Ulladulla Times & Sussex Inlet Times reported that an Ulladulla runners group ran along Narrawallee Beach on 24 August 2014.

17. On 22 October 2014, Milton Ulladulla Times & Sussex Inlet Times reported that Ulladulla running group ran along Narrawallee Beach.

18. On 27 May 2015, an article in the Milton Ulladulla Times reported that the Council was to consider options for dog exercise areas on Narrawallee Beach.

19. On 23 July 2015, the Milton Ulladulla Times & Sussex Inlet Times Community Diary reported of a “NPA walk: Jones Beach, Bannisters Head to Narrawallee Beach circuit.”

20. On 27 July 2016, the Milton Ulladulla Times reported on the Council’s decision to adopt off-leash dog area trial arrangements for Narrawallee Beach on a permanent basis. The article reported that an advocate for the Narrawallee Beach Dogs group said: “we are grateful to be able to give people and their dogs time on the sand”.

21. On 9 May 2018, the Milton Ulladulla Times & Sussex Inlet Times reported on a regular organised run along south Narrawallee Beach.

22. On 15 January 2020, the Milton Ulladulla Times & Sussex Inlet Times reported on an organised run, commencing at Narrawallee Inlet and returning onto south Narrawallee Beach.

Council policies and resolutions

23. On 24 September 1979, a Report of the City Health Surveyor to the meeting of the Confidential Policy & Resources Committee of the Respondent, which was submitted to the Ordinary Meeting of the Respondent held on 8 October 1979, records at item 50(a), a recommendation: “That under Section 367(j) of the Local Government Act, 1919, dogs be prohibited at all times on… Narrawallee Beach Reserve”.

24. On 8 October 1979, at an ordinary meeting the Respondent resolved to adopt the recommendations contained within the report of the Confidential Policy and Resources Committee dated 24 September 1979, with the exception of Item 46.

25. On 6 August 1985, a report of the City Health Surveyor was submitted to the meeting of the Finance & Welfare Committee of the Respondent. Item 1 of this report advises that:

a) A petition was received at the meeting of the Respondent held on 7 May 1985 on File No. 74/1313, in which residents requested provision ‘within the City for areas for the purpose of exercising animals under the control or responsible persons’; and

b) ‘In discussions with representatives of the petitioners, they explained the reasons for their request, which was to allow the exercising of dogs “off-leash” on beaches’ including Narrawallee Beach;

c) “Council has resolved that dogs be totally prohibited from Mollymook and Narrawallee beaches under Section 9 of the Dog Act 1966”. The report recommended that, in relation to the petition, “Council adhere to its present policy and the requirements of the Dog Act 1966, prohibiting dogs from Narrawallee and Mollymook beach areas”.

26. On 20 August 1985, an ordinary meeting of the Respondent took place. The minutes of that meeting record the following recommendation in relation to the petition File No. 74/1313:

“RECOMMENDED that:-

a) Council adhere to its existing Policy regarding the prohibition of dogs from Mollymook and Narrawallee beaches.

b) The City Health Surveyor submit a report to the Finance and Welfare Committee on the exercising of dogs on beaches to enable Council to review its Policy on this matter.”

27. On 15 October 1985, a report of the City Health Surveyor was submitted to the meeting of the Finance & Welfare Committee of the Respondent on 15 October 1985. Item 2 of this report, titled “Dog Control – The Exercise of Dogs on Beaches and a Review of Council’s Policy”, relates to File No. 74/1313. This report states that:

a) on 24 September 1979, the Respondent resolved to prohibit dogs on specified beaches, including “Narrawallee Beach Reserve – total” under section 367(j) of the Local Government Act; and that

b) on 21 August 1984 the Respondent resolved “Under Section 9 of the Dog Act 1966 that all prohibited areas previously resolved under the Local Government Act Section 367(j) on 24th September 1984 be now prohibited areas under the Dog Act 1966”.

The report recommends that “the report of the City Health Surveyor concerning Dog Control – The exercising of dogs on beaches and a review of Council’s policy, be received for information.”

28. On 4 November 1985, an ordinary meeting of the Respondent took place, where the minutes of that meeting record at item 3257 relating to “Dog Control – The Exercising of Dogs on Beaches and a Review of Council’s Policy. File 74/1313” recommends “that the report of the City Health Surveyor concerning Dog Control – The exercising of dogs on beaches and a review of Council’s policy, be received for information.”

29. On 25 January 2005, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. MIN05.79 to adopt a number of dog prohibited areas for inclusion into its Access Areas Dogs Policy. Council resolved that Narrawallee Beach and reserve from Narrawallee Creek to Surfers Avenue be a dog-prohibited area in its Policy, excluding the area between north of Victor Avenue to the unnamed Island which was to become an on-leash area.

30. On 21 December 2010, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. 10.1445 to adopt an amended Access Areas for Dogs Policy.

31. On 21 June 2013, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. 13.631 to adopt an amended Access Areas for Dogs Policy.

32. On 23 June 2015, an ordinary meeting of the Respondent Council was held and later reconvened on 24 June 2015. The Respondent made resolution MIN15.368, resolving to allocate budget and human resources to implement a targeted “one off” trial for off-leash dogs in the existing on-leash area (the area from between the Victor Avenue steps north to and the unnamed Island), between 4 pm and 9 am, and to provide on-leash access to the trial area from the southern side of the Victor Avenue steps.

33. On 27 October 2015, an ordinary meeting of the Respondent Council was held, and the Respondent made resolution no. MIN15.625 to extend the off-leash dog trial on Narrawallee Beach and to amend the designated off-leash hours to summer hours of 6pm to 8am.

34. On 19 July 2016, resolution no. MIN16.541 was made by the Strategy and Assets Committee of the Council to adopt the trial arrangements of a designated dog off-leash area at Narrawallee Beach within the restricted times of 6pm to 8am from 1 October to 30 April and 3pm to 10am from 1 May to 30 September until a review of the Access Areas for Dogs Policy.

35. On 27 August 2019, an ordinary meeting of the Respondent Council was held in which the Respondent made resolution no. MIN19.578 to conduct a six month trial of onleash dog access to the off-leash area from Surfers Avenue via Shoalhaven Water thoroughfare and the rear of the beach and to install associated signage and bollards.

36. On 10 December 2019, resolution no. MIN19.924 was made by the Strategy and Assets Committee of the Respondent Council to rescind MIN19.578 and approve a twelve-month trial of a 10 metre wide dog on-leash strip from Surfers Avenue unformed beach access area to the Victor Avenue steps and to trial extending the hours of the off-leash dog area to 4pm to 8am from 1 October to 30 April and 3pm to 10am from 1 May to 30 September.

37. On 9 February 2021, resolution no. MIN21.68 was made by the Strategy and Assets Committee of the Respondent Council to adopt the trial provisions with amendments to move the southern boundary of the dog off-leash area to immediately south of the most southern Narrawallee Inlet Reserve entrance, remove the 10 metre wide on-leash access strip from Surfers Avenue, prohibit access to the dogs off-leash area on the southern end of the beach including the Victor Avenue steps, and to the time periods for the dog off-leash area from 1 October to 30 April to refer to Australian Eastern Daylight Savings time (being 4pm – 8pm)_and from 1 May to 30 September to refer to Australian Eastern Standard time (being 3pm – 10 pm).

38. On 9 March 2021, Resolution no. MIN21.120 was made by the Strategy and Assets Committee of the Respondent Council, that Council, amongst other things, support the continuing access to the dog off-leash area at Narrawallee Beach from Surfers Avenue (as per the recent trial directions) and to leave this access in place until a review of the Access Areas for Dogs policy.

39. On 2 November 2021, an ordinary meeting of the Respondent Council was held. The Respondent made resolution no. MIN21.804 to reinstate the southern boundary of the dog off-leash area to be in line with the Victor Avenue steps, retained the northern boundary of the dog off-leash area, allowed on-leash access to the dog off-leash area via a transition area from Surfers Avenue, allowed dog access from all beach entry points between and including the Surfers Avenue steps and Parkinson Street, and stated that new signage is to be provided, being the resolution which is the subject of these proceedings.

40. On 28 March 2022, an ordinary meeting of the Respondent Council was held in which the Council [considered] a report titled ‘CL22.158 Narrawallee Breach – Dog Access Areas – Review of Environmental Factors’ and the attached ‘Review of Environmental Factors - Dog Off-Leash Access’ dated 28 January 2022 (REF). The Respondent Council resolved to refer the matter to a Councillor Briefing.

41. On 26 April 2022, an ordinary meeting of the Respondent Council was held in which the Respondent [considered] a report titled ‘CL22.197 Narrawallee Beach – Dog Access Areas – Review of Environmental Factors’ and the REF. The Respondent resolved to postpone making a determination and hold in place the current on-leash / off-leash provisions pending further investigation and the review of the Access Areas for Dogs Policy.

13. The Council submitted that various resolutions are intended to manage the Council’s obligations under the Companion Animals Act which came into force on 28 August 1998.

Agreed issues for determination

14. The Second Further Amended Summons identifies two grounds, the failure to obtain development consent under s 4.2(1) of the EPA Act before the Decision was made, alternatively, the failure to comply with s 5.5(1) of the EPA Act namely the assessment of environmental impacts of the proposed activity before the Decision was made. The parties provided the following list of issues for determination during the course of the proceeding which required some alteration to reflect the arguments made. The answers to several of the issues are agreed as indicated and the number of matters in dispute is therefore reduced.

15. The issues as finally agreed by the parties are:

1. What is the proper construction and effect of the Decision?

In issue.

2. [See below issue 10]

3. To extent that the Applicant challenges the validity of decisions of the Council pleaded in the paragraph 4 of the Summons under the heading “Decisions”, should the Court exercise its discretion to extend the time for commencing the proceedings in respect of those decisions?

In issue.

4. Is the use of Narrawallee Beach as an off-leash dog area with associated on-leash access (the Use), being the subject of the Respondent’s decision on 2 November 2021 (the Decision), “development” within the meaning of that term in the Environmental Planning and Assessment Act 1979 (EP&A Act)?

Agreed, answer is yes.

5. Is the Use properly characterised as development for the purpose of a “recreation area” as defined in the Shoalhaven Local Environmental Plan 2014 (Shoalhaven LEP), being a purpose requiring development consent in the RE1 zone?

Agreed, answer is yes.

6. Does the Use have the benefit of continuing use rights under Part 4 of the EP & A Act as pleaded at paragraph 8 of the Points of Defence?

Agreed, answer is yes.

7. Assuming continuing use rights apply, does the Use constitute an intensification within the meaning of s4.68(2)(c) of the EP & A Act of the use of Narrawallee Beach as a recreation area?

In issue.

8. Is the Use an activity within the meaning of Part 5 of the EP & A Act?

Agreed, answer is yes.

9. If subject to Part 5 of the EP&A Act, did the respondent examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Use before making the Decision, in accordance with s5.5(1)?

Agreed, answer is no.

10. Relief and discretion.

In issue.

2. Do the earlier decisions referred to at paragraph 4 under the heading ‘Decision’ of the Applicant’s Summons filed 11 March 2022 (Earlier Decisions) preclude the relief sought in the Summons? That is, can the Court grant the relief sought restraining dogs on Narrawallee Beach until there is either a development consent or Part 5 assessment and compliance with s 5.5 notwithstanding the existence of the Earlier Decisions.

In issue.

16. As a result of the parties’ agreement on some of the issues identified above, three areas of debate remain, which I will label A, B and C. Firstly (A) the nature and scope of the Decision challenged in the context of Council’s decision-making over many years must be considered (issues 1, 3).

17. Secondly (B) the Council accepts and the Applicant agrees that the use of the Beach as an off-leash area for dogs is ‘development’ as defined under the EPA Act and for the purposes of ‘recreation area’ in the SLEP which use has existing use rights (issues 4, 5, 6). That leaves for determination the issue of whether the existing use has intensified, which is disputed (issue 7).

18. Thirdly (C) alternatively if Pt 5 applies (if the Applicant does not establish intensification of the existing use) the Council accepts its Decision of 2 November 2021 gives rise to an activity to which Pt 5 applies. At the time the Decision was made no REF was before the Council. One has since been prepared and is in evidence. That is relied on by the Council to argue the relief sought by the Applicant should not be made in the exercise of the Court’s discretion if the question of relief arises (issues 2, 10).

Evidence

Applicant’s evidence

19. The Applicant read the following affidavits:

1. Ms Vatala solicitor sworn 17 June 2022, 21 June 2022 (supplementary) and 27 September 2022;

2. Ms Gregory local resident sworn 16 June 2022;

3. Mr Mitchell local resident affirmed 16 June 2022;

4. Ms O’Donnell local resident sworn 17 June 2022, 2 December 2022 and 13 April 2023;

5. Mr Murray local resident affirmed 17 June 2022, 12 October 2022, 4 April 2023 and 5 May 2023;

6. Mr O’Donnell local resident sworn 17 June 2022 and 13 April 2023;

7. Ms Jasiak local resident affirmed 16 June 2022 and 12 April 2023;

8. Mr Wright local resident affirmed 21 June 2022;

9. Ms Cordeiro local resident affirmed 21 June 2022 and 12 April 2023;

10. Ms Campbell   local resident sworn 21 June 2022 and 13 April 2023;

11. Mr Bradshaw local resident affirmed 21 June 2022 and 13 April 2023;

12. Mr Campbell local resident sworn 21 June 2022 and 14 April 2023;

13. Mr Walters local resident affirmed 22 June 2022 and 13 April 2023; and

14. Ms Bradshaw local resident affirmed 13 April 2023.

20. The Applicant tendered the following exhibits:

1. Exhibit to Ms Vatala’s affidavit sworn 17 June 2022 (Ex A);

2. Exhibit to Ms Vatala’s affidavit sworn 27 September 2022 (Ex B);

3. Exhibit to Mr Murray’s affidavit affirmed 17 June 2022 (Ex D);

4. Exhibit to Mr Campbell’s affidavit sworn 21 June 2022 (Ex E);

5. Exhibit to Mr Murray’s affidavit affirmed 4 April 2023 (Ex F);

6. Exhibit to Ms Campbell’s affidavit sworn 13 April 2023 (Ex G);

7. Exhibit to Mr Murray’s affidavit affirmed 5 May 2023 (Ex H);

8. Tabs 35 to 43 of the evidence book containing documents produced in response to Notice to Produce 13 April 2023 (Ex J);

9. Tab 31 of the evidence book containing an extract from the book ‘What Bird is That’ (Ex K);

10. Applicant’s bundle of documents containing documents produced under subpoena (Ex L); and

11. Notice to produce for inspection dated 13 April 2023 (Ex M).

Council’s evidence

21. The Council read the following affidavits:

1. Mr Brickhill solicitor affirmed 22 July 2022;

2. Ms Cooke librarian at the Council affirmed 18 July 2022 and 9 August 2022 (Supplementary) (not summarised as parties agree recreational history of the use of the Beach); and

3. Mr Coddington biodiversity coordinator at the Council affirmed 16 May 2023.

22. The Council tendered the following exhibits:

1. Exhibit to Mr Brickhill’s affidavit affirmed 22 July 2022 (Ex 1);

2. The Council’s Access Areas for Dogs Policy adopted on 21 December 2010 (Ex 2); and

3. The Council’s Access Areas for Dogs Policy adopted on 25 January 2005 and as amended 10 February 2009 (Ex 3).

A. Effect of Council resolutions relating to dogs on Narrawallee Beach (issues 1, 3)

23. The Applicant is seeking to challenge one resolution of the Council made on 2 November 2021, the Decision, and obtained leave of the Court to do so as the statutory time limit to do so was not met. That is not the only decision made by the Council in relation to off-leash dog access on the Beach. Issues 1 and 3 require consideration of the resolutions made by the Council over many years in relation to dog access on the Beach. The Second Further Amended Summons identifies a number of resolutions in par 4 which are not the subject of challenge in the summons.

a. Resolution no. MIN10.1445 made by the Respondent at the Council meeting held on 21 December 2010;

b. Resolution no. MIN13.631 made by the Respondent at the Council meeting held on 21 June 2013;

c. Resolution no. MIN15.368 made by the Respondent at the Council meeting held on 23 June 2015 and reconvened on 24 June 2015;

d. Resolution no. MIN15.652 made by the Respondent at the Council meeting on 27 October 2015;

e. Resolution no. MIN16.541 made by the Strategy and Assets Committee of the Respondent on 16 July 2016;

f. Resolution no. MIN19.578 made by the Respondent at Ordinary Meeting on 27 August 2019;

g. Resolution no. MIN19.924 made at Strategy and Assets Committee of the Respondent on 10 December 2019;

h. Resolution no. MIN21.68 made at Strategy and Assets Committee of the Respondent on 9 February 2021; and

i. Resolution no. MIN21.120 made at Strategy and Assets Committee of the Respondent on 9 March 2021;

24. The Council does not consider that list is exhaustive of the decisions made by the Council about dog access on the Beach. The Council referred to additional decisions all but one of which are included in the SOAF at pars 23-41. It is necessary to review the various resolutions made over time to understand the context for the Decision being challenged.

Summary of Council resolutions

25. On 8 October 1979 the Council adopted a recommendation of the report of the City Health Surveyor dated 24 September 1979 that dogs be prohibited at all times on the Beach Reserve under s 367(j) of the Local Government Act 1919 (NSW). A report of the City Health Surveyor submitted to a committee meeting of the Council on 15 October 1985 stated that on 21 August 1984 the Council continued the prohibition areas under s 9 of the Dog Act 1966 (NSW).

26. By way of summary dogs were prohibited on the Beach until 25 January 2005. On that date the Council resolved to designate an on-leash area for dogs on the beach (MIN05.79). On 23 June 2015 the Council resolved to permit dogs off-leash in a different area on the Beach for the first time (MIN15.368). Over time various resolutions amended access arrangements to the off-leash area as well as the boundaries and time periods in summer and winter for the designated off-leash area as part of the trial. In March 2022 the Council resolved to continue off-leash dog access following the trial. The arrangements were varied in the Decision of 2 November 2021.

27. The Council resolutions provided:

1. On 25 January 2005 the Council resolved that the Beach would be a dog-prohibited area, excluding the area between north of Victor Avenue and the unnamed island that was to be an on-leash area (MIN05.79).

2. On 23 June 2015 the Council resolved to implement a trial for off-leash dogs in the existing on-leash area between the Victor Avenue steps and the unnamed island between 4:00pm and 9:00am (MIN15.368). On-leash access to the trial area was provided from the southern side of the Victor Avenue steps. The trial was extended on 27 October 2015 by a resolution of the Council (MIN15.625). The resolution amended the designated off-leash hours to summer hours of 6:00pm to 8:00am.

3. On 19 July 2016 the Council adopted trial arrangements of a designated dog off-leash area at the Beach within the restricted times of 6:00pm to 8:00am from 1 October to 30 April and 3:00pm to 10:00am from 1 May to 30 September (MIN16.541).

28. On 27 August 2019 the Council resolved MIN19.578 as follows:

That Council conduct a six months trial for dog walkers who desire to access Narrawallee Beach from Surfers Avenue. The trial period would mandate the following:

1. The trial access journey plan from Surfers Avenue is stipulated via the Shoalhaven Water thoroughfare to its end, then onto the rear of the beach keeping close to the escarpment, proceeding to the foot of the Victor Avenue stairs and then onto the designated “dog area” to the north.

2. In walking from Surfers Avenue to the Victor Avenue stairs all dogs must be kept on a lead.

3. The trial would not commence until all necessary signage was installed, access from the Shoal Water track to the beach was made good and around five bollards were put in place along the rear of the beach (base of escarpment) to the Victor Avenue stairs. Note that pictorial bollard signage directing dog walkers to keep to the escarpment side would be an essential element of the trial.

29. By resolution dated 10 December 2019 the Council approved MIN19.924 which stated:

That Council:

1. Rescind MIN19.578 and approve a twelve-month trial to commence prior to Christmas, to create a 10m wide Dog On-leash strip passing from the Surfers Avenue unformed beach access area (Shoalhaven Water access road), to the commencement of the Dogs On-Leash area of the main Narrawallee Beach.

2. Amend the existing Dog Off-leash Guide diagram for Narrawallee Beach, to alter the Dog Prohibited area by redesignating a 10m wide strip between the Surfers Avenue unformed beach access and the Victor Avenue stairs to the north, as Dog On-leash. At the same time, obtain new signage for installation at the northern and southern limits of the proposed Dog On-leash strip.

3. Commence investigation of the feasibility of establishing an upgrade of the trial track west of the Dog Prohibited Area of the beach, to allow dog owners to walk their dogs between the Surfers Avenue stairs and the Victor Avenue stairs to avoid walking across the Dog Prohibited area.

4. Conduct the Dog Off-leash trial using the same times as those used in the 2015-16 trial (4pm-8am 1 October – 30 April and 3pm-10am 1 May – 30 September) consistent with other Dog Off-leash locations in the Shoalhaven.

5. Inform the local Community Consultative Bodies of this twelve-month trial.

30. The following diagram was attached to the agenda for the ordinary meeting when the Council made the resolution dated 10 December 2019.

31. By resolution dated 9 February 2021 the Council adopted trial provisions with amendments as follows (MIN21.68):

1. Accept the summary of the community feedback and outcome of the amended Dog Off-leash area 12-month trial on Narrawallee Beach for information.

2. Adopt the trial provisions, with the following amendments:

a. Amend the dates from:

i. 1 October to 30 April to Australian Eastern Daylight Savings Time, being 4pm–8am, and

ii. 1 May to 30 September to Australian Eastern Standard Time, being 3pm–10am.

b. Move the southern boundary of the off-leash area to immediately south of the most southern Narrawallee Inlet Reserve entrance and prohibit access to the dog off-leash area on the southern part of Narrawallee Beach, including Victor Avenue stairs.

c. Remove the 10m wide access way from Surfers Avenue.

3. Erect new signs at the various access points at Narrawallee Beach in accordance with the endorsed direction.

4. As part of the Review of the Access Areas for Dogs Policy, subject to community consultation, amend the dates of other Shoalhaven timed off-leash areas to be consistent with Part 2 (a) (i).

32. By resolution dated 9 March 2021 the Council resolved MIN 21.120 as follows:

That Council:

1. Support the continuing access to the off-leash area at Narrawallee Beach from Surfers Ave as per the recent trial directions.

2. Develop appropriate signage directing people the right way to access the off leash area in and around Narrawallee Beach especially at the Surfers Ave end. Clrs Proudfoot and White and available Councillors to assist in the development of the signage with staff.

3. Leave the access from Surfers Ave in place until consideration of this area in the review of the Access Areas for Dogs policy.

4. Issue enforcement penalty notices for persons not following the signage or walking with dogs directly across south end Narrawallee Beach between the steps and Victor Ave steps.

5. Request local residents, Paws4Shoalhaven and Rangers to assist with advising residents and visitors of the strict entry process from Surfers Ave to the off-leash area.

6. Undertake vegetation maintenance if required on mid beach access points as noted in Staff Signage Report

7. Contact Holiday Home owners via Rates Notices advising them of the changes and the role they play in sharing the foreshore and informing their tenants of the access arrangements for dogs.

8. Include on the new signage, information on shore bird habitats which is protected by No Dogs (access) areas.

9. Include on the signage that to access the beach via the track from Surfers Avenue at the back of the beach, dogs must be on leash.

33. The Decision made on 2 November 2021 stated (MIN21.804):

That Council, in relation to the dog off leash area boundaries and entry points at Narrawallee Beach:

1. Reinstate the Southern boundary of the dog off-leash area to be in line with the Victor Avenue steps (as per the Trial). (BA2 map)

2. Retain the Northern boundary of the dog off-leash area to be in line with the beach entry point opposite Parkinson Street. (BA 7 map)

3. Allow dog access from all beach entry points in between and including Victor Avenue steps and Parkinson Street, Narrawallee Beach. (BA2 to BA7 map)

4. Continue to allow on leash access from Surfers Avenue to Victor Street Steps via a transit zone – (BA1 to BA2 map).

5. Provide new signage to the beach entry points at 17 locations from Surfers Avenue to Narrawallee Inlet, as per the attached signage.

6. Agree that this resolution will be an interim solution and will be considered for assessment as part of the dog policy review.

34. The following diagrams were attached to the minutes of the ordinary meeting on 2 November 2021 when the Council made the Decision. The first diagram is a map indicating the existing areas and access ways for dog access on the Beach at the time the Council met to consider the Decision. The second diagram depicts the proposed on-leash and off-leash dog arrangements ultimately adopted in the Decision on 2 November 2021.

BA - beach access, IA - inlet access.

BA1 is Surfers Avenue. BA2 are the Victor Street steps. BA7 is Parkinson St Narrawallee Beach.

BA - beach access, IA - inlet access.

BA1 is Surfers Avenue. BA2 are the Victor Street steps. BA7 is Parkinson St Narrawallee Beach.

Access Areas for Dogs Policies

35. The Council adopted an Access Areas for Dogs Policy on 25 January 2005 (Ex 3). This policy was superseded by an Access Areas for Dogs Policy adopted by the Council on 21 December 2010 in MIN 10.1445 (Ex 2). The Council then adopted another Access Areas for Dogs Policy dated 21 June 2013 in MIN 13.631. These policies were the subject of and provide context for the previous resolutions of the Council. On 17 February 2015 the Council adopted the Access Areas for Dogs Policy in force at the time of the Decision. I note the Council is currently undertaking a review of its Access Areas for Dog Policy with a draft policy on public exhibition.

36. Relevant sections of the Access Areas for Dogs Policy dated 17 February 2015 as amended 9 February 2021 are extracted below.

5. PROVISIONS

5.1. On-Leash Areas for Dogs

Outside Council’s ‘dog prohibited’ areas and ‘prohibited boundary’ areas as governed by the Companion Animals Act, a dog may be taken onto any Council land as described by this policy providing it is kept on-leash at all times. There are exemptions, which are identified in section 5.5.

5.2. Dog Prohibited Areas – Companion Animals Act

This policy is governed under the Companion Animals Act, therefore the recognised dog prohibited areas legislation applies city wide as an enforceable regulation.

Dogs are prohibited in the following places (whether or not they are leashed or otherwise controlled):

(a) Children’s play areas

(b) Food preparation/consumption areas.

(c) Recreation areas where dogs are prohibited

(d) Public bathing areas where dogs are prohibited

(e) School grounds

(f) Child care centres

(g) Shopping areas where dogs are prohibited.

(h) Wildlife protection areas

5.3. Dog Prohibited Areas – Site Specific

In addition, to the generic prohibited areas as defined above, Council has zoned designated site specific areas of managed land or land within the care and control of Council to be enforced as dog prohibited (24 hours). The prohibited zoning of the below listed areas were influenced by either the natural or social environment.

To define the applicable boundary, dogs are prohibited at the greatest distance set by either the Companion Animals Act or Council site specific boundary.

…

Narrawallee

Narrawallee Beach and reserve from Narrawallee Creek to the unnamed Island.

Narrawallee Beach and reserve from the northern end of Victor Avenue to Surfers Avenue.

…

9. RELEVANT PLANS, POLICIES AND LEGISLATION

NSW Companion Animals Act 1998

Community Strategic Plan, Shoalhaven Council 2020

Council Policy – Dog Control – Holiday Tourist Parks

Council Policy – Foreshore Reserves Policy

Council Policy – Companion Animals Policy

Applicant’s submissions

37. The Applicant argued that the Decision under challenge while it stands alone continues to give effect to, and supersedes, all previous resolutions made by the Council itemised in par 4 of the Second Further Amended Summons. If the effect of the Decision is found to be so these previous resolutions will also be null and void. The consequence of declaring the Decision as not complying with the EPA Act due to intensification of the use is that dogs will not be allowed off-leash on the Beach until development consent has been granted by the Council to itself as required by Pt 4 of the EPA Act (issue 7).

38. The Decision represents the Council’s approval presently in force for off-leash and on-leash dog access at the Beach. As part of the Decision the Council resolved to:

1. Reinstate the southern boundary of the dog off-leash area to be in line with the Victor Avenue steps (as per the trial) (BA2 map);

2. Retain the northern boundary of the dog off-leash area to be in line with the beach entry point opposite Parkinson Street (BA7 map); and

3. Continue to allow on-leash access from Surfers Avenue to Victor Street Steps via a transit zone (BA1 to BA2 map).

39. The Applicant submitted that it does not need to challenge the previous resolutions as the relief sought will deprive the previous resolutions of their continuing effect in the absence of development consent or a Pt 5 assessment by restraining the use the subject of the Decision. None of the previous resolutions grant development consent under Pt 4, or assess or approve pursuant to Pt 5, the use of on-leash or off-leash dog access on the Beach as pleaded at par 5 of the Second Further Amended Summons.

40. The Council did not make express pleadings regarding the effect of the Decision on previous resolutions or the need for the Applicant to seek leave under r 59.10 of the UCPR in their Points of Defence.

41. The Applicant invited the Court to adopt a similar approach to Preston CJ in Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 (Palm Beach) by dealing with the determinative issues about whether development or Pt 5 approval applies on the premise that the Decision allows dogs on the beach rather than engaging with the parsing and phrasing of Council’s resolutions over time.

42. Further in oral submissions the Applicant submitted the resolutions of the Council were unclear.

Council’s submissions

43. The Applicant appears to effectively seek to challenge all previous resolutions made by the Council going back to 21 December 2010. The Applicant only has leave to challenge the Decision made on 2 November 2021.

44. Any relief sought can arise only from the impacts of the Decision. Even if found to be invalid it does not affect the validity of the previous resolutions of the Council to permit dogs off-leash in a specified area at specified times on the Beach and on-leash in the southern transit zone to that area. The previous decisions of the Council remain in the absence of any specific challenge by the Applicant, for which it would need consent from the Court under r 59.10 of the UCPR to commence judicial review proceedings given it is outside the statutory time limit. No such application has been made.

45. The Decision purports to alter the boundary of the existing off-leash dog area, the subject of earlier resolutions of the Council on 9 March 2021 and 2 February 2021. The first decision to permit dogs off-leash on the Beach at certain times was made on 24 June 2015 when a trial commenced. If relief is granted relevant to the single decision challenged the on-leash and off-leash arrangements on the Beach revert to the situation prior to 2 November 2021. This would be a marginal change as evidenced by the diagrams above in [34] namely a small reduction in the area available for off-leash dog access plus a small increase in the dog prohibited on-leash transit to timed off-leash area only.

46. It is unclear why the decisions in par 4 of the Second Further Amended Summons have been chosen. Some of the decisions chosen only permit on-leash access. Off-leash dog access was first approved by the Council’s decision of 2015.

47. The relief sought also doesn’t align with on-leash access by dogs being permitted on the beach. The Applicant’s case does not appreciate the lawful rights for people to access public areas with their dogs on-leash under s 13(1) of the Companion Animals Act. Dogs are permitted on-leash in a public place such as the Beach in the absence of a prohibited area order being made under ss 14(1), (7) of the Companion Animals Act.

48. If the orders sought by the Applicant are made, the arrangements on the beach would revert to those under the previous resolution dated 9 March 2021. The Court should not grant relief sought in orders 4 and 5 of the Second Further Amended Summons dated 24 May 2023. The orders concern associated on-leash activities which are permitted under the Companion Animals Act. The orders seek removal of infrastructure that is undefined [I note the Application no longer presses such an order]. This may include receptacles and plastic bag dispensers contrary to the Companion Animals Act. Remedial orders should be declined as the infrastructure is required.

Findings on (A)

49. The various resolutions of the Council set out in the SOAF show a lengthy history of management of dog access on the Beach, commencing for present purposes from 2005 when dogs on-leash were first permitted on the Beach with the decision of the Council to no longer prohibit dogs there.

50. The Companion Animals Act provides the legal framework for the management of companion animals which are defined to include dogs in s 5(1). The Council is the local authority for the Beach under s 6(1). Part 2 deals with the need to identify and register companion animals. Part 3 Responsibilities for control of dogs includes in s 13(1) that a dog in a public place must be on a lead held by a person as the means of exercising effective control. Effective control is not exercised if a person has more than four dogs in a public place (s 13(4)). The responsibility of the Council in the management of dogs in public places includes the ability to make an order that certain places are prohibited for dog access, s 14(7). Public place includes beaches and parks, s 5(1). Areas that may be the subject of an order include public bathing areas, recreation areas and wildlife protection areas, inter alia. Unless an area is prohibited as provided by s 14(1) dogs are permitted on-leash in public places, subject to the owner’s responsibilities in s 13(1) (effective control) and s 20(1) requiring immediate removal and proper disposal of any dog faeces by the owner or person in control of a dog. Local authorities have a duty to provide sufficient rubbish receptacles for this purpose in areas used commonly to exercise dogs under subs (2). Under the Companion Animals Act a public place is available for on-leash dog access without restriction if not otherwise prohibited to dogs under s 14(1). The Council can declare a specified area of a public place to be an off-leash dog area within specified time periods, by order made under s 13(6). Section 16 provides that it is an offence where a dog rushes at, attacks, bites, harasses or chases any person or animal inter alia.

51. The construction of council resolutions was considered by Pepper J in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [49] (this point was undisturbed on appeal) citing Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 at 520 when Wells J identified that council resolutions should be considered in context and that:

…a court should not be too ready to attribute to a Council an intention to contradict itself, or to pass inherently inconsistent resolutions; and that if it is possible, by a not unreasonable construction to harmonize two or more apparently conflicting resolutions, then that is the construction that should be adopted. It would, accordingly, be misleading to rely only on the bare words of a resolution disengaged from the events that lead to, and resulted from, its being passed, and to look for unreason rather than for reason.

52. The history of decision making is set out above at pars 32-41 of the SOAF and the summary of evidence above in [25]-[34]. The resolutions include that in 2005 the Council resolved to change the area of prohibition to dogs from the whole of the Beach to the southern area of the Beach (Surfers Avenue) and the northern section (beyond the unnamed island) stating that the area north of Victor Avenue steps to the unnamed island was to be an on-leash area. The Council made the first order allowing a time restricted off-leash trial on a defined part of the Beach in 2015. That trial arrangement was varied over time as to hours as between summer and winter, and as to the area where dogs are allowed off-leash, in various resolutions. On-leash dog access in the southern prohibited section as a transit zone to the timed off-leash area was introduced in 2019. The trial period was finalised and the decision made to permit timed off-leash dog access in a specified area in February 2021 and continued in March 2021. The 2 November 2021 resolution (the Decision) further varied the March 2021 decision.

53. The Council confirmed the area of Narrawallee Inlet and the northern section of the Beach a prohibited area with no dog access in 2015 when it allowed dogs off-leash onto part of the beach for the first time which arrangement continues.

54. The focus of the Applicant’s case is the Decision of 2 November 2021 which made relatively modest changes to previous resolutions of the Council permitting off-leash dog access on the Beach in, firstly, changing the south boundary of the off-leash area on the Beach and, secondly, in relation to the use of the dog prohibited on-leash transit to timed off-leash area in the south of the Beach for on-leash dog access in an area otherwise prohibited to dogs, including the installation of appropriate signage. It argues that as this continues the effect of earlier decisions of the Council a finding that it is legally deficient means that these earlier decisions must also have no effect. No direct legal challenge is made to these earlier decisions of the Council. If these decisions were to be challenged in judicial review proceedings leave to do so would be required.

55. I cannot agree with the characterisation of the Decision argued for by the Applicant. Various policy decisions have been made by the Council to allow off-leash and on-leash dog access on the Beach over many years, most relevantly since 2015 in relation to timed off-leash dog access in a limited area of the Beach. A finding that the Decision requires development consent does not mean that earlier decisions not the subject of legal challenge are automatically rendered inoperable. Further, the Council has an Access Areas for Dogs Policy which has been amended at various times and also continues in existence regardless of whether the Decision under challenge is found legally wanting.

56. It necessarily follows that if the Applicant establishes its claim in reliance on Pt 4 or Pt 5 that I will not be granting the relief in the very broad terms sought which if made would stop any off-leash dog access on the Beach. The orders now sought also seek removal of all signs referring to off-leash dog access, and to restrain the facilitation of the provision of plastic bag dispensers and rubbish receptacles (rather than immediate removal as sought at the outset of the hearing). Given that on-leash dog access is allowed at any time on the Beach under s 13(1) of the Companion Animals Act and given the responsibility of the Council under s 20(2) restraining the facilitation of the provision of the plastic bag dispensers and rubbish receptacles is legally and practically problematic.

154. Under the REF the Council will liaise with the NPWS regarding mitigation measures to protect shorebirds. The South Coast Shorebird Recovery Program by the NPWS and the Council is in place. The Council relied on evidence above in [117(1)] of the presence of shorebirds in Narrawallee Spit Prohibited area at the northern end of the Beach provided by the NPWS.

155. The qualifications of Ms Anderson who undertook the REF and has since left the Council is known, based on Mr Coddington’s evidence about the members of his team at the Council.

156. The Council’s Foreshore Reserve Policy adopted 29 June 2004 and reviewed 1 December 2020 provides context for the REF. The Council has been providing for the protection of shorebirds and management of dogs for years. The Court should be satisfied that the Council implements ongoing measures to protect shorebirds that adequately mitigate environmental impacts.

157. Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21 (Pittking) at [52]-[56] identifies that authorities bind the Court to read the word “reasonable” into the duty to carry out a Pt 5 assessment. The Council must carry out a reasonable assessment “to the fullest extent reasonably possible all matters affecting...” the activity. The REF is a reasonable assessment having assessed all of the relevant matters, including community concerns, in preparation of the REF and appropriately setting out the basis for all conclusions made.

158. The Council does not authorise non-compliances with the Decision or the Companion Animals Act. The approach taken by the Council in the REF is in accordance with GS Maguire ‘A Review of Dog Impacts to Beach-nesting Birds and Management Solutions’ (2018, Birdlife Australia) that asserts the best approach to protection of shorebirds is to provide dog access to a portion of the beach. If dog access were prohibited on the Beach people would take their dog to the beach regardless and access would be less regularised to minimise impacts.

159. The Council has compliance officers who carry out inspections on the Beach. The Court should not conclude that the evidence produced is necessarily all the inspections undertaken. There is no evidence to inform the Court whether or not the council rangers were obliged to document when they went to the Beach and what occurred during their inspections.

Exercise of discretion finding

168. The Court has broad discretion to determine whether declarations and consequential orders ought be made and if so on what terms in response to a breach of the EPA Act, as identified in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313 and Sedevcic at 340.

169. The Second Further Amended Summons is extracted above in [5] and seeks a declaration in prayer 3 in relation to the failure of the Council to comply with Pt 5 of the EPA Act. It also seeks orders as follows in prayers 4 and 5:

4. An order restraining the Respondent from signing, designating or marking, and facilitating by the provision of dog faeces bins, dog faeces bag dispensers, and other dog-related infrastructure, or otherwise allowing or encouraging, the use of Narrawallee Beach or any part of it as an off-leash dog area with associated on-leash access.

5. An order that the Respondent forthwith:

a. remove from Narrawallee Beach all signage allowing off-leash and associated-on-leash use at Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and replacing it with signage notifying that off-leash and associated on-leash dog use is prohibited at all times (the latter signage to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act),

…

c. place a note on the Respondent’s website informing the public that off-leash and associated on-leash dog use of Narrawallee Beach (that is, the use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) is unlawful until either development consent is obtained authorising that use or an environmental assessment is carried out assessing that activity in accordance with the EP&A Act (such note to remain until there is either a development consent for that use or after an environmental assessment is carried out assessing the impact of that activity on the environment in accordance with Part 5 of the EP&A Act).

170. The Council accepts that the decision to allow a timed dogs off-leash area on the Beach, which first occurred in 2015, is an approval under Pt 5 in that it permits or authorises those activities and an assessment of the environmental impact of that activity is required. The Council's staff have prepared an REF dated 28 January 2022 in purported compliance with s 5.5(1) of the EPA Act. This follows the Decision in November 2021 and earlier decisions from 2015 in relation to access for dogs off-leash on the Beach outlined above in [27]-[34]. As found in issue A above in [54]-[55] the effect of the Decision is to vary earlier decisions of the Council to permit dogs off-leash on the Beach by varying the southern boundary of the off-leash area and the use of the prohibited southern area of the Beach for transit of dogs on-leash, with appropriate signage. The REF assesses the environmental impacts of allowing dogs on-leash and off-leash on the Beach generally and concludes that if certain measures are implemented the environmental impact is not significant. The Council has to prepare an EIS as required under s 5.7(1) of the EPA Act if an activity is likely to significantly affect the environment.

171. I have already observed above in [56] that restraining the use of rubbish receptacles and plastic bag dispensers is not appropriate given that dogs are allowed on-leash on the Beach as a public place. Such facilities are necessary in any event as a matter of practicality for dog owners and for the benefit of other members of the community in having dog owners comply with their obligation under s 20 of the Companion Animals Act. Further, s 20(2) of the Companion Animals Act imposes duties on the Council in this regard which restraining the provision of this infrastructure would be completely contrary to. If I make any order it will not include any such requirement to restrain the use of such facilities. It follows that the focus of any order can only be the removal of signage and changes to the Council’s website.

172. The Council submits that while it did not comply with s 5.5(1) of the EPA Act at the time of the Decision, or when earlier decisions were made, there is no utility in requiring further environmental assessment given the preparation of the REF and that the orders sought by the Applicant ought not be made by the Court. The Council submits that through the preparation of the REF the requirements of s 5.5(1) have been met.

173. The Council, meaning the elected councillors, was asked by its officers on 26 April 2022 to consider the REF and determine that:

1. it has examined and taken into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Proposed Activity, described as “the proposed dog off-leash area and associated works at Narrawallee Beach”;

2. that the proposed activity is unlikely to significantly affect the environment provided that the proposed safeguards and mitigation measures identified in the REF are adopted and implemented and no EIS is required to be prepared; and

3. to adopt and implement the proposed environmental safeguards, mitigation measures and controls identified in the REF.

174. The Council resolved on 26 April 2022 as set out above in [128] to postpone making a determination and directed council staff to undertake further investigations. It also resolved to hold in place the current on-leash and off-leash provisions pending further investigation and review of the Access Areas for Dogs Policy. It is obvious to observe that the activity being assessed is not a proposed activity as it commenced several years ago.

175. Given that the Council has not determined that the REF examines and takes into account to the fullest extent possible all matters affecting or likely to affect the environment I do not consider this is a matter about which I should make a conclusive finding as that is ultimately a function of the Council which the elected councillors are yet to undertake. It is sufficient for informing the exercise of discretion in this case that I consider whether the REF suggests that the Council has the capacity to comply with Pt 5 of the EPA Act accepting that an amended REF in the future may occur given the Council’s resolution dated 26 April 2022 asking for further investigation. That is the approach that will inform the exercise of my discretion whether to make any declarations and orders.

176. The obligation to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of an activity requires a reasonable assessment to be undertaken, as identified by Moore J in Pittking at [52]-[54]:

[52] I turn, first, to the question of statutory construction. In Guthega Development, Samuels JA (Mahoney and Priestley JJA concurring) considered the nature of the obligation that was imposed by the (then) s 111 (now s 5.5) and how it is to be understood. His Honour said (at 366):

At the same time, it can scarcely be read literally in without some modification of its terms. For example, the phrase “to the fullest extent possible” would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limited burden imposed by the word “possible”. “Possible” is of a similar kind to “foreseeable”, a word etched in the professional cause of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word “reasonably” was inserted before “possible”.

[53] That approach was subsequently endorsed in Transport Action Group,where Mason P said, at [68], with respect to what was required by the (then) s 111 (now s 5.5) that:

This obligation is mandatory but is to be applied reasonably and with practicality (Guthega).

[54] More recently, in Oshlack, Gleason JA said [at 32]:

As noted by the primary judge, the duty imposed upon each respondent as the determining authority by s 111 of the EPA Actto "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity" in question including the specified matters, is properly construed as qualified by the word "reasonably". That is, the respondents' duty is to examine and take into account the matters referred to in that section to the fullest extent reasonably possible (citations omitted).

177. The REF is extracted and summarised in some detail above at [122]-[127] as the Council referred to numerous parts of the document. Important context is provided by the Council acting in accordance with the approach of Mr Maguire (see above in [166]) as recorded in item 7 of the REF that more effective dog management in public places is achieved if a council designates an off-leash area with restrictions as dog owners are otherwise likely to take their dogs anywhere. It is clear from the material in evidence that the Council is balancing competing demands and concerns of the local community across the whole LGA in the various resolutions made informed by the Access Areas for Dogs Policy which has been amended over time, a process which continues with a draft version of the policy presently on display to the public.

178. The proposal being assessed in the REF is a dog off-leash area and associated works, relating to the impact of the proposal on the community and the environment, specifically regarding threatened shorebirds and migratory birds known or predicted to occur in the Narrawallee area. The specific arrangements being considered in the REF reflect the Decision in terms of areas of access for off-leash dogs on the Beach and timing restrictions, with transition of dogs on-leash through the prohibited southern area from Surfers Avenue (item 2.2). The historical context is provided (item 2.3).

179. Environmental safeguards and measures to minimise impact are identified in item 2.4, including clear signage, undertaking a pre-works shorebird survey, regular monitoring by council rangers to include a minimum of one inspection every two days during off-leash hours, regular liaison with the NPWS South Coast Shorebird Recovery Program Coordinator including in key breeding season times and collaboration on mitigation measures to ensure protection of shorebirds. The REF also identifies in item 2.4 that an important approach in the LGA is education by the Council of the community about the control of dogs and owners’ responsibilities to control their dogs under the Companion Animals Act.

180. The searches in relation to shorebirds informing the REF are identified in item 2.5, extracted above in [122] and these include NSW Bionet and Birdata database searches, and consultation with a NPWS shorebird ranger and council rangers.

181. Item 4 of the REF found the activity was permissible under all relevant legislation, including the EPA Act, Crown Land Management Act, Coastal Management Act and Biodiversity Conservation Act. Item 6 sets out the consultation conducted by the council staff in preparation of the REF with internal departments of the Council and the community. The Council received submissions from 100 individuals and groups in relation to the off-leash dog area both in support of and raising concerns about the activity. Concerns related to signage, non-compliance and user conflict and safety. The mitigation measures in item 2.4 of the REF were developed in accordance with the consultation.

182. Item 7 of the REF considers the assessment of likely environmental impacts and refers to the Biodiversity Conservation Act, including the five-part test of significance under Pt 7 s 7.3 of that Act in relation to shorebirds. Assessment against EPBC Act significance of impact matters in relation to shorebirds is also assessed. The determination in item 8 states that the Council has considered the potential environmental effects of the proposal and the effectiveness and feasibility of measures reducing or preventing detrimental effects. It is considered unlikely there will be any significant environmental impact resulting from the proposed activity and consequently no EIS (pursuant to s 5.7 of the EPA Act) is required. The conclusion is reached that the proposed activity is not likely to significantly affect threatened species or ecological communities or their habitats inter alia.

183. Clause 228(2) of the EPA Regulation is referred to in the REF summarised above in [123] and all factors are considered to determine the likely impact of the proposed activity. Subclause (a) environmental impact on community, subcl (b) transformation of locality, subcl (c) impact on the ecosystems of locality, subcl (d) reduction of aesthetic, recreational, scientific or other value, subcl (e) effect on locality, place or building with special value for present and future generations, subcl (f) impact on habitat of protected fauna, subcl (g) endanger species, plant or other form of life, subcl (h) long-term effects on the environment, subcl (i) degradation of quality of the environment, subcl (j) risk to safety to the environment, subcl (k) reduction in beneficial uses of the environment, (l) pollution, subcl (m) disposal of waste, subcl (n) demand on resources in short supply, subcl (o) cumulative effect with other existing or likely future activities and subcl (p) impact on coastal processes and coastal hazards, are all considered with the conclusion made in relation to each item that any impact would be negligible, low or in some cases a mildly positive impact.

184. Applying the principles identified in the caselaw cited in Pittking extracted above in [176], whether the REF demonstrates a capacity to adequately or reasonably assess the identifiable environmental impacts of timed off-leash dog access on the beach and related matters must be considered practically.

185. The Applicant argues the REF is based on key incorrect assumptions which I infer means that, if I agree, the conclusion I am to draw is that the assessment in the REF is not adequate or reasonable. The Applicant also disagrees with the conclusion in the REF that environmental impacts are not significant, particularly in the context of shorebird disturbance. The Applicant’s lay evidence about impacts has been summarised above in [60]-[86] and already considered in relation to the Applicant’s case on intensification.

186. I will first consider the Applicant’s submission that the impact on shorebirds is significant and criticised the REF in concluding that the impact was acceptable. Consideration of the impact on shorebirds in the REF must be considered as a whole. The Applicant relied on lay evidence above in [82]-[84] of several witnesses who attest to the presence of dogs in the northern and southern prohibited areas on several occasions to submit that non-compliance by dog owners is occurring. I accept that lay evidence read by the Applicant does identify protected shorebirds in the Inlet area and the Beach (see above in [74]-[80]) and that is confirmed by the data obtained from the NPWS in the record for liaison above in [118]. That shorebirds are impacted by dogs in the sense that dogs chase birds is also identified by the evidence above in [77]. Observation of less shorebirds in certain locations in the Applicant’s lay evidence above in [81] was not based on any scientifically accepted shorebird surveys so can be given little weight.

187. The adequacy of the assessment of the impact on shorebirds in the REF was criticised as scientifically inadequate because the officer responsible has since left the Council, did not leave any field notes and her qualifications are unknown. That Mr Coddington’s (the Council’s biodiversity coordinator) team members had tertiary qualifications is addressed in his written evidence and I do not draw any conclusion that the officer was not adequately qualified. Mr Coddington who is also tertiary qualified gave evidence that he oversaw the preparation of the REF and was satisfied about the adequacy of the assessment in the REF. No expert evidence is adduced by the Applicant to support the submission of lack of scientific integrity, rather the Applicant seeks to impugn the capability of council staff undertaking the REF, which I do not accept as a valid criticism.

188. While the Applicant criticised the REF as not being comprehensive and no details being known about the survey of shorebirds carried out by Ms Anderson, additional database searches and liaison with NPWS in relation to shorebirds are referred to in the REF. The REF also outlines ongoing liaison by council staff with the NPWS South Coast Shorebird Recovery Program on measures to protect shorebirds nesting sites in the Inlet area. The presence of protected shorebirds within the Inlet area, which is prohibited to dogs, is identified in the REF as an impact that must be dealt with.

189. The evidence before me includes a record of liaison with NPWS that details actions in relation to patrolling the nesting area in the Inlet area (see above in [118]). I note one lay witness observed signage that stated ‘Shorebird nesting area – No Dogs’ displayed from September to December each year and fencing off of the Narrawallee Inlet area. The evidence confirms that protective action is being taken in the Inlet area including measures such as erecting fences.

177. Also referred to in the REF summarised in the evidence above in [121] and relied on by the Council is the Foreshore Reserves Policy which explicitly deals with managing dog impacts on birds in such areas and is a policy the Council has had in place since 2004.

178. That the REF made the statement that “Narrawallee Beach has already been used as an off-leash area for several years and so is not considered a viable nesting location for shorebirds” is a statement of reality. It does not undermine the adequacy of the REF. As noted above in [181] the REF undertakes an assessment under various statutes relevant to impacts on shorebirds.

179. In light of all these matters I am unable to accept the Applicant’s submission that the impact of the activity on shorebirds is inadequately assessed in the REF. The REF is comprehensive in its scope, alert to the various statutory schemes relevant to the protection of endangered shorebirds which must be considered, and measures for the protection of shorebirds is a major focus of the document. The consideration of all relevant and likely environmental impacts on shorebirds is reasonable.

180. Secondly, the inclusion in the REF as a safeguard measure that council rangers will patrol the beach every two days as stated in item 2.4 is criticised by the Applicant as a baseless assumption. The Applicant asserts as a matter of fact that rangers are not patrolling the Beach at that level of frequency, nor are they issuing penalty infringement notices to dog owners for non-compliance, based on the material produced by the Council pursuant to the notice to produce dated 13 April 2023 and the subpoena to produce dated 2 May 2023. The evidence summarised above in [120] does not record a penalty notice being issued to a dog owner from 28 March 2022 to 3 May 2023. As summarised above in the table set out at [119] the recorded frequency of visits is far less according to the documents produced. I note a lay witness attests that they have on only one occasion observed a council ranger patrolling dog walking on the Beach (see above in [87]).

181. Thirdly, the Applicant submits that the negative impacts of non-compliance by dog owners with Council orders made in reliance on the Companion Animals Act are demonstrated in the Applicant’s lay evidence which identifies numerous instances of non-compliance and that this shows extensive non-compliance. The instances of non-compliance set out above in [82]-[86] are dogs entering the northern dog prohibited area, dogs off-leash outside the permitted hours in the timed dog off-leash area and dogs off-leash in the on-leash transit area that is otherwise dog prohibited. The REF is criticised because it does not recognise the extent of non-compliance and instead assumes compliance with orders made under the Companion Animals Act. The Applicant also relies on the evidence that dogs enter the northern dog prohibited area to assert that the Council cannot maintain the 600m buffer area they rely on as an environmental safeguard in item 2.4 of the REF.

182. I will consider these two criticisms as they are essentially interlocking. The evidence produced by the Council in response to the notice to produce and subpoena does demonstrate that ranger activity is occurring. Given that enforcement action by a council ranger is discretionary whether penalty infringement notices have been issued is not material. Giving warnings to non-compliant dog owners is the first enforcement response identified in the Council’s strategy. Education about control obligations of owners under the Companion Animals Act is also identified as an important measure in the REF. Mr Coddington gave oral evidence that he understood that council rangers attended more regularly and that was why that level of regularity was identified in the REF. While he did not have direct knowledge as that concerned a different area of the Council his evidence suggests the Council’s intention is to have very regular council ranger visits. The Council submitted that the assumption should not be made that the evidence relied on by the Applicant reflected all ranger visits as these are not required to be recorded, about which there is no evidence.

183. The response in the REF is to have ranger patrols every two days and that is the recommended ameliorative measure. The evidence and submissions on this issue is somewhat inconclusive in that Mr Coddington’s oral evidence suggests that ranger visits are of greater frequency than the records provided and summarised above in the evidence. Further I observe that the REF is proposing this as an ameliorative measure so that strictly speaking it may not be implemented at the present time although it is clearly preferable that it has been implemented in light of the Applicant’s evidence. Regular council ranger patrols are committed to in the REF. Overall, Mr Coddington’s evidence above in [132] that the safeguard measures in item 2.4 of the REF are already being implemented by the Council on the Beach is accepted.

184. The evidence of non-compliance by dog owners identified by the Applicant’s lay witnesses is said to show extensive non-compliance. Whether that is the case is difficult to accept as the evidence of large dog numbers largely in holiday periods appears to give rise to an inference that large numbers of people with dogs are complying with their obligations.

185. The controls implemented by the Council in the Decision and previously in the trial period of several years from 2015 when off-leash dog use was first permitted on the Beach include limiting the area and timing of that access, are contemplated by the Companion Animals Act. That there are instances of dog owners not complying with the Companion Animals Act as implemented by the Council and obligations imposed directly on dog owners has to be accepted as part of the community accepting companion animals in public places as a matter of course. I consider this impact is recognised in the REF and responded to through the ameliorative measures identified in item 2.4. The Council’s approach in this context in the REF is reasonable.

186. Lastly, criticism is made of the assumption in the REF that dog owners will comply with their obligations under s 20 of the Companion Animals Act to dispose of dog faeces in considering that dog waste will not have a substantial impact on the environment. The Applicant relied on lay evidence summarised above in [70]-[72] about dog owners failing to dispose of dog faeces. As the Council submitted, a reasonable approach is required and that can include acceptance that not all dog owners will comply with s 20 as a practical matter. The assumption that the majority of dog owners will comply is a reasonable assumption for the Council to make in my view and the REF is not deficient in this regard.

187. I am determining whether the REF as prepared is reasonable in its assessment of identified and likely environmental impacts given the nature of the activity being assessed. Any inaccuracy in the REF does not result in a finding of unreasonableness and in any event I do not consider any has been demonstrated by the Applicant. The REF must be viewed as a whole and it is fair to describe it as comprehensive in relation to the impacts identified and considered. Overall, I consider the REF is capable of enabling the Council to take into account all matters affecting or likely to affect the environment such that the Council has the capacity to comply with Pt 5.

In conclusion

201. The Council did not speak against the making of the declaration sought in prayer 3 in the Second Further Amended Summons dated 24 May 2023 and I consider that can be made for the reasons identified in Hill Top at [20]. As the Council submitted above in [48] the effect of making prayer 3 will be that the dog access arrangements on the Beach revert to those the subject of the resolution of 9 March 2021 set out above in [32].

202. I do not consider making the orders sought by the Applicant are warranted in light of the limited scope of the Decision being challenged and my conclusions in relation to the REF.

Costs

203. The Applicant's Second Further Amended Summons dated 24 May 2023 seeks costs. The Applicant has been partially successful. I have not heard argument about costs. As that is a matter about which argument may be necessary costs will be reserved and a timetable agreed with the parties to address costs if they wish to do so.

Declaration and order

204. The Court declares and orders as follows:

1. the resolution of the Respondent on 2 November 2021 to alter the boundaries of the off-leash dog area at Narrawallee Beach and continue it (that is, the off-leash area), and to allow on-leash dog access from the beach entry points shown on BA1 to BA2 (that is, use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and BA2 to BA7 on the map annexed to that resolution purports to authorise an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW), but is of no force and effect as there has been no compliance with s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW).

2. costs are reserved.

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Decision last updated: 26 July 2023