Palm Beach Protection Group Incorporated v Northern Beaches Council

[2020] NSWLEC 156

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

20-23 October 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Class 4

Before:

Preston CJ

Decision:

The Court:

(1) Declares that Northern Beaches Council has breached s 5.5(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) in considering and determining to approve on 17 December 2019 the activity of allowing dogs on-leash at Station Beach, Palm Beach by not examining and taking into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity;

(2) Declares that Northern Beaches Council has breached s 5.7(1) of the EPA Act in granting approval on 27 August 2019 to the activity of conducting the dog off-leash area trial at Station Beach, Palm Beach for a period of 12 months, without having obtained or been furnished with, and having examined and considered, an environmental impact statement in respect of that activity;

(3) Declares that Northern Beaches Council has breached s 5.7(1) of the EPA Act by:

(a) not determining whether the activity of allowing dogs on-leash at Station Beach, Palm Beach, is likely to significantly affect the environment;

(b) granting approval on 17 December 2019 to the activity of allowing dogs on-leash at Station Beach, Palm Beach, without having obtained or been furnished with, and having examined and considered, an environmental impact statement in respect of that activity;

(4) Declares invalid, and quashes, the decision of Northern Beaches Council made on 27 August 2019 to conduct a dog off-leash area trial at Station Beach, Palm Beach for 12 months;

(5) Declares invalid, and quashes, the decision of Northern Beaches Council made on 17 December 2019 to allow dogs on-leash at Station Beach, Palm Beach;

(6) Directs the parties to file and serve submissions on the orders that the parties contend the Court should make by way of prohibitory or mandatory injunctions (if any) in accordance with the following timetable:

(a) The applicant to file and serve its submissions by 27 November 2020;

(b) The respondent to file and serve its submissions by 4 December 2020;

(c) The applicant to file and serve its submissions in reply by 11 December 2020;

(7) Grants leave to each party to relist the matter in order to fix a date for a hearing if a party wishes to have a hearing on the issue of the injunctive orders the Court should make.

(8) Orders the respondent to pay the applicant’s costs of the proceedings.

Catchwords:

JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) – whether decisions authorise use of land – purpose of use of land – whether for recreation area – whether development consent required – whether development for purposes of recreation area on a public reserve under the control of or vested in the council – whether continuance of a use of land for a lawful purpose – whether enlargement, expansion or intensification of use – whether use abandoned – whether use unlawfully commenced – development consent not required for use – no breach of Part 4 of EPA Act

JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 5 of EPA Act – whether council decisions approve an activity – duty to examine and take into account environmental impact of activity – whether council breached duty in approving dog on-leash activity – duty to obtain, examine and consider EIS for activity likely to significantly affect environment – whether council breached duty in approving dog off-leash activity and dog on-leash activity – whether each activity likely to significantly affect the environment – breaches of Part 5 of EPA Act

Legislation Cited:

Companion Animals Act 1988 ss 13(6), 14(1)

Crown Land Management Act 2016

Crown Lands Act 1989

Environmental Planning and Assessment Act 1979 ss 1.5(1)(a), 4.2, 4.3, 5.1, 5.5, 5.7

Fisheries Management Act 1994 ss 221ZV, 221ZX

Local Government Act 1919 s 344

Local Government Act 1993 s 48, 632

Local Government (Town and Country Planning) Amendment Act 1945

Pittwater Local Environmental Plan 1994

Pittwater Local Environmental Plan 2014

State Environmental Planning Policy (Infrastructure) 2007

Warringah Local Environmental Plan 1985

Cases Cited:

Bailey v Forestry Commission of NSW (1989) 67 LGRA 200

BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274

Burwood Council v Iglesias Ni Cristo (No 2) (2019) 242 LGERA 32; [2019] NSWLEC 159

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

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

Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186

Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155

F Hannan Pty Ltd v Electricity Commission of NSW (1983) 51 LGRA 369

Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38

Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353

Hanly v Kleidienst 471 F2D 823 at 830 (2d CIR, 1972)

Herring Daw & Blake NSW Pty Ltd v Gosford City Council (1995) 87 LGERA 220

Hudak v Waverley Municipal Council (1990) 18 NSWLR 709

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79

King v Lewis (1995) 88 LGERA 183

Kivi v Forestry Commission of NSW (1992) 47 LGERA 38

Liverpool City Council v Roads and Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265

National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA 443

Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48

Oshlack v Richmond River Council and Irongates Development Pty Ltd (1993) 82 LGRA 222

Oshlack v Rous Water (2013) 194 LGERA 39; [2013] NSWCA 169

Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231

Parramatta City Council v Hale (1982) 47 LGRA 319

Prineas v Forestry Commission of NSW (1983) 49 LGERA 402

Prineas v Forestry Commission of NSW (1984) 53 LGERA 160

Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305

Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56

Rundle v Tweed Shire Council (1989) 68 LGRA 308

Snowy Mountains Brumby Sustainability and Management Group Inc v The State of NSW [2020] NSWLEC 92

South Sydney City Council v Hulakis & Teakdale Pty Ltd (1996) 92 LGERA 401

Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562

Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246

Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186

Timbarra Protection Inc v Ross Mining NL (1999) 46 NSWLR 55

Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598; [1999] NSWCA 196

Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366

Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614; [1979] HCA 66

Warren v Electricity Commission of NSW (1990) 130 LGERA 565

Weal v Bathurst City Council (2000) 111 LGERA 181

Willoughby City Council v Minister administering the National Parks and Wildlife Act (1992) 78 LGERA 19

Category:

Principal judgment

Parties:

Palm Beach Protection Group Incorporated (Applicant)
Northern Beaches Council (First Respondent)
Department of Planning, Industry and Environment (Second Respondent)

Representation:

Counsel:
Mr N Williams SC, with Mr C Ireland (Applicant)
Mr A Galasso SC, with Mr M Staunton (First Respondent)

Solicitors:
Dentons (Applicant)
Wilshire Webb Staunton Beattie Lawyers (First Respondent)
Submitting appearance (Second Respondent)

File Number(s):

2019/313791

Publication restriction:

Nil

Judgment

A council decides to allow dogs in a public place

1. Station Beach, on the Pittwater side of Palm Beach, and the adjacent land of the isthmus, named Governor Phillip Park, has been a reserve for public recreation for nearly a century. The current Northern Beaches Council (the Council) has the power to care and manage the reserve. The westward extent of the reserve is the Mean High Water Mark (MHWM). The land below MHWM is Crown land. Together, the reserve (land above MHWM) and the Crown land covered by tidal waters (land below MHWM) are a public place for various pieces of legislation.

2. In 2019, the Council twice resolved to allow the public to use this public place for recreation by the public in the companionship of their dogs. By the first resolution, on 27 August 2019, the Council resolved to:

“A. Conduct a do off-leash area trial at Station Beach, Palm Beach for 12 months as outlined in the agenda report.

B. Delegate authority to the Chief Executive Officer to enter into a licence agreement with the Department of Industry, Lands and Water for the trial.

C. Declare Station Beach an off-leash area, for the purpose of the trial, under section 13(6) of the Companion Animals Act 1998 subject to the granting of a licence with the Department of Industry, Lands and Water.

D. Investigate other beach locations prior to appointing a permanent dog off-leash area at Station Beach.”

3. The agenda report referred to both an off-leash area and an on-leash area. The report described the boundaries of the dog off-leash area to be as follows:

“- Eastern boundary (sic, western boundary), 3 metres east of the seagrass beds closest to and parallel to Station Beach. Denoted by three marker buoys (attachment 10) and signage on the southern edge of the Station Beach beach wharf.

- Western boundary (sic, eastern boundary), to be along the edge of the Palm Beach Golf Course.

- Northern boundary to be the southern edge of Station Beach Wharf.

- Southern boundary approximately 110 metres north of the Beach Road entry.”

4. These boundaries accorded with the recommendation of Ms Astles in a report dated April 2019 included as part of the Review of Environmental Factors dated 24 May 2019. Ms Astles had recommended, in order to mitigate the impacts of dog use on marine biodiversity, notably seagrasses, including the threatened population of Posidonia australis, and the threatened species of seahorse, White’s seahorse, Hippocampus whitei, that the western boundary be fixed three metres eastwards of the seagrass beds closest to the beach and the southern boundary be moved northwards of a bed of Posidonia seagrass that comes close to the beach, thereby ensuring that dogs do not lawfully enter and damage seagrass beds.

5. As indicated in the resolution, the boundaries of the off-leash area would be physically indicated, by three marker buoys in the water and signage on the southern edge of the Station Beach wharf (signifying the western and northern boundaries) and signage at the southern end of the area (signifying the southern boundary).

6. The agenda report also referred to designating a smaller section of Station Beach to the south of the off-leash area, as an on-leash area. The on-leash area would be established between Beach Road (its southern boundary) and the southern boundary of the off-leash area (its northern boundary). The eastern boundary was the golf course. There was no western boundary. This would have the consequence that there was no legal restriction on dogs on-leash entering the water and the Posidonia seagrass bed close to the beach in this on-leash area.

7. In terms, however, the Council resolution of 27 August 2019 did not approve the on-leash area. Each of the parts of the resolution referred only to the off-leash area, not an on-leash area, and parts B and C of the resolution are only applicable to an off-leash area not an on-leash area.

8. The agenda report proposed that the off-leash area (as well as the on-leash area) operate on certain days and at certain times:

“- 4.00pm to 10.30am, Monday to Sunday (Australian Eastern Standard Time, non-daylight saving time).

- 5.30pm to 10:30am, Monday to Friday (Australian Eastern Daylight Time, daylight-saving time, summer)

- Dogs prohibited on Station Beach outside these days and times.”

9. The Council’s decision of 27 August 2019 was challenged by a resident action group opposed to allowing dogs on Station Beach, the Palm Beach Protection Group Inc (the Group). The Group commenced these judicial review proceedings on 8 October 2019.

10. Partly for this reason and partly because the Council had not been able to obtain a licence from the Department of Industry, Lands and Water to use the submerged Crown land, on 17 December 2019, the Council passed a second resolution to:

“1. Allow dogs on-leash at Station Beach, Palm Beach as outlined in the report (including as to specified location, days and time).

2. Note that this resolution and Council Resolution 267/19 have the effect of amending the former Pittwater Council Dog Control Policy (NO⁰ 30).

3. Authorise the Chief Executive Officer to do all things necessary to give effect to this resolution including to erect and remove signage.”

11. The agenda report referred to the Council’s first resolution to conduct a dog off-leash area trial, noted that a licence had not yet been obtained from the Department, and proposed the interim measure of allowing an on-leash area pending the issue of a licence. The boundaries of the on-leash area were described as:

“- Northern boundary to be the southern end of Station Beach Wharf (as adopted for the Station Beach dog off-leash area trial).

- Southern boundary to be the southern edge of Beach Road (as adopted for the Station Beach dog off-leash area trial).

- Eastern boundary to be the western boundary of the Palm Beach Golf Club Ltd lease area as identified in Council’s lease with Club.”

12. There is inconsistency in the description of the location of the southern boundary of the on-leash area. The location of “the southern edge of Beach Road” is different to the location of the southern boundary “as adopted for the Station Beach dog off-leash area”. The latter location was at a point “approximately 110 metres north of the Beach Road entry”, not at the southern edge of Beach Road.

13. There was no western boundary, so that there was no limit on how far westwards into Pittwater estuary dogs on-leash could walk or swim. The days and times would be the same as were adopted for the off-leash area trial:

“- 4.00pm to 10.30am, Monday to Sunday (Australian Eastern Standard Time, non-daylight saving time).

- 5.30pm to 10:30am, Monday to Friday (Australian Eastern Daylight Time, daylight-saving time, summer)

- Dogs prohibited on Station Beach outside these days and times.”

14. The agenda report noted that:

“Council will continue to pursue a licence as contemplated by the off-leash resolution. Should a licence be granted by the Department and agreed to by Council, the Station Beach dog off-leash area trial would commence in accordance with the off-leash resolution and would replace the option outlined in this report.”

15. The Group amended its summons to challenge this second decision.

The council decisions are challenged

16. The Group contends that the Council’s two decisions are invalid on two sets of grounds. The first ground is that each decision authorises the carrying out of development in breach of s 4.2 or s 4.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) (the unlawful development ground).

17. The Group argues that the use of the beach and adjacent water authorised by each Council decision is development that is prohibited or permitted only with development consent. The Council and the public who carry out the use will therefore be in breach of s 4.2 or s 4.3 of the EPA Act, which prohibit any person carrying out development that either is prohibited or is permitted with consent where no consent has been granted.

18. The Group seeks in its further amended summons declarations that the use of land is prohibited or permitted only with consent (prayers for relief 2 and 3 for the first decision and 4B and 4C for the second decision), orders restraining the carrying out of the use (prayers for relief 4 for the first decision and 4G for the second decision), and orders setting aside the Council’s decisions as invalid (prayers for relief 1 for the first decision and 4A for the second decision).

19. The second ground on which the Group contends the Council’s decisions are invalid and enable the carrying out of the use in breach of the EPA Act is in the alternative to the first ground. If the use authorised by the Council’s decisions is not either prohibited or permitted only with consent, but instead is permitted without consent, the Group contends that the environmental impact of the use needed to be assessed under Part 5 of the EPA Act (the inadequate EIA ground).

20. The Group contends that the use of the beach and adjacent waters authorised by each Council decision is an activity, each Council decision was an approval, and the Council was a determining authority whose approval was required in order to enable the activity to be carried out. The Group contends that the Council was required by s 5.5 of the EPA Act to consider the environmental impact of the activity before granting approval, but the Council failed to do so in making the second decision. The Group contends that the Council was required by s 5.7 of the EPA Act to consider an environmental impact statement in respect of the activity before granting approval, but the Council failed to do so in making either the first or second decisions.

21. The Group seeks in its further amended summons declarations that the Council breached s 5.7 of the EPA Act in making the first decision (prayer for relied 3A) and the second decision (prayer for relief 4E); the Council breached s 5.5 in making the second decision (prayer for relief 4D); and the first and second decisions are accordingly invalid (prayers for relief 3B and 4F).

22. The Council contests both grounds. It contends that neither decision authorised a use of land, such as to be either a development under Part 4 or an activity under Part 5 of the EPA Act. Hence, there can be no illegal development in breach of s 4.2 or s 4.3 of the EPA Act or failure to consider the environmental impact of an activity in breach of s 5.5 or s 5.7 of the EPA Act.

The effect of the council decisions

23. Resolution of the grounds of challenge requires understanding the effect of each of the Council’s decisions.

24. The context in which both decisions were made was an order that had been made by the Council under s 14(1) of the Companion Animals Act 1998 that dogs are prohibited on “all beaches” in the former Pittwater local government area, which includes Station Beach at Palm Beach.

25. The principal object of the Companion Animals Act is “to provide for the effective and responsible care and management of companion animals”: s 3A. In addition, “it is declared that the protection of native birds and animals is an objective of animal welfare policy in the State”: s 4. A “companion animal” is defined to include a dog: s 5(1) definition of “companion animal”.

26. The Companion Animals Act prescribes various responsibilities for identification and registration of companion animals (Part 2) and for control of dogs (Part 3). One of the responsibilities for control of dogs concerns dogs in public places. Section 13 (1) provides:

“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.”

27. A “public place” is defined widely to mean:

“(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.”

28. A dog is not considered to be under effective control of a person if the person has more than 4 dogs under his or her control: s 13(4).

29. Section 13 does not apply to certain dogs and in certain circumstance, including:

“a dog accompanied by some competent person in an area declared to be an off-leash area by a declaration under this section (but only if the total number of dogs that the person is accompanied by or has control of does not exceed 4)”: s 13(5)(a).

30. An area can be declared by a local authority to be an off-leash area under s 13(6), which provides:

“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.”

31. A “local authority” for a place is defined in s 6(1) to be “the council in the area of which the place is located.” The Council is the local authority for Station Beach.

32. The entitlement for a person to have a dog in a public place under s 13, whether on-leash or off-leash in a public place declared to be an off-leash area, is subject to s 14. Section 14 prohibits dogs in specified public places, such as children’s play areas, food preparation or consumption areas, school grounds and child care centres, and other types of public places where the local authority has made an order that dogs are prohibited, such as recreation areas, public bathing areas, shopping areas and wildlife protection areas. Section 14(1) provides:

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

(a)  Children’s play areas (meaning any public place, or part of a public place, that is within 10 metres of any playing apparatus provided in that public place or part for the use of children).

(b)  Food preparation/consumption areas (meaning any public place, or part of a public place, that is within 10 metres of any apparatus provided in that public place or part for the preparation of food for human consumption or for the consumption of food by humans).

(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).

(e)  School grounds (meaning any property occupied or used for a purpose connected with the conduct of a government school or non- government school under the Education Act 1990, other than any property used for a residence or the curtilage of a residence).

(f)  Child care centres (meaning any property occupied or used for a purpose connected with the conduct of an approved education and care service within the meaning of the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011, other than any property used for a residence or the curtilage of a residence).

(g)  Shopping areas where dogs are prohibited (meaning a shopping arcade or shopping complex, including any part of it that is used by the public for parking or access to shops, in which or part of 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 there). This paragraph does not apply to any shop or part of a shop.

(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).”

33. Another responsibility for control of dogs in Part 3 is for an owner of a dog that defecates in a public place to immediately remove the dog’s faeces and properly dispose of them: s 20(1). Proper disposal includes disposal in a rubbish receptacle designated for the purpose by the local authority: s 20(2).

34. Pursuant to the power in s 14(1), the former Pittwater Council, who was the local authority at the time, ordered that dogs are prohibited in specific public places, being certain recreation areas, public bathing areas and wildlife protection areas, under s 14(1)(c), (d) and (h). These orders were made in the Dog Control Policy, Council Policy – No 30, first adopted on 3 March 1997. The Dog Control Policy was amended on two occasions, 17 October 2011 and 4 November 2013. Of relevance to the present case, the Council ordered that dogs are prohibited on “all beaches”. The public place of a beach is not restricted to the land above MHWM but includes the land below MHWM covered by tidal waters that commonly is considered to be part of the beach.

35. It is against this background that the Council came to make its decisions in August and December 2019. The Council wished initially to conduct a dog off-leash area trial on Station Beach but later sought to allow dog on-leash use of Station Beach as an interim measure until the dog off-leash area trial could be commenced. In order to allow either on-leash or off-leash use by dogs of Station Beach, the order under s 14(1) in the Dog Control Policy that dogs are prohibited on all beaches, which included Station Beach, needed to be revoked or varied. Do the Council’s decisions achieve this?

36. The first decision of 27 August 2019 does not refer to the order in the Dog Control Policy prohibiting dogs on all beaches or seek to amend that order. In express terms, the resolution only seeks to “declare Station Beach as an off-leash area, for the purpose of a trial, under section 13(6) of the Companion Animals Act 1998 subject to the granting of a licence with the Department of Industry, Lands and Water.” (part C of the resolution). The reference to “a trial” is a reference to part A of the resolution to “conduct a dog off-leash area trial at Station Beach, Palm Beach for 12 months as outlined in the agenda report.”

37. There are doubts as to the legal effectiveness of this resolution. First, the power in s 13(6) to declare a public place to be an off-leash area is able to be exercised where dogs are able to be in a public place, although needing to be leashed by reason of s 13(1). A local authority cannot declare a public place to be an off-leash area where dogs are able to be unleashed if dogs are prohibited in that public place. Hence, where a local authority has ordered under s 14(1) that dogs are prohibited in a public place, the local authority must first revoke or vary that order that dogs are prohibited in that public place before the local authority can by order under s 13(6) declare the public place to be an off-leash area.

38. The Council’s resolution of 27 August 2019 does not in express terms revoke or vary the order in the Dog Control Policy that dogs are prohibited on all beaches before purporting to declare Station Beach to be an off-leash area. Nevertheless, the Council submitted that such revocation or variation of the order in the Dog Control Policy that dogs are prohibited on all beaches should be implied precisely because revocation or variation of the order in the Dog Control Policy is a necessary step in the Council being able to declare Station Beach to be an off-leash area. Although the Council did not record its intention to revoke or vary the order in the Dog Control Policy prohibiting dogs on all beaches, by declaring Station Beach to be an off-leash area where dogs can be off-leash, the Council impliedly has revoked or varied the order prohibiting dogs on Station Beach.

39. The Group contests the Council’s submission, saying that it was necessary for the Council in the terms of its resolution to revoke or vary the order in the Dog Control Policy prohibiting dogs on all beaches, including Station Beach, before it could exercise the power in s 13(6) to declare Station Beach an off-leash area.

40. Second, the power in s 13(6) is to be exercised “by order” declaring a public place to be an off-leash area. The Council’s resolution of 27 August 2019 is a resolution but not an order.

41. Third, the Council’s exercise of the power under s 14(6) is conditional. Part C of the resolution makes the Council’s declaration of Station Beach as an off-leash area “subject to the granting of a licence with the Department of Industry, Lands and Water.” The Council needed to obtain a licence because it wished to conduct the dog off-leash area trial partly on Crown land below MHWM. The consent of the Crown, as owner of the land, was necessary to be able to conduct the trial on Crown land below MHWM. Such consent is given in the form of a licence under s 5.21(1) of the Crown Land Management Act 2016 to use or occupy Crown land for the purposes the Minister thinks fit. The Council had applied for a licence for the trial, but has not been granted a licence and there is no indication that it will be granted a licence for the trial. In this circumstance, the condition on which the Council’s exercise of the power in s 13(6) was made subject has not been, and may never be, satisfied.

42. For these three reasons, the Council’s resolution of 27 August 2020 may be legally ineffective to declare Station Beach to be an off-leash area.

43. The second decision of 17 December 2019 in express terms only seeks to “allow dogs on-leash at Station Beach, Palm Beach as outlined in the report (including as to specified location, days and times)” (part A of the resolution). The resolution does “note that this resolution and Council resolution 267/19 have the effect of amending the former Pittwater Council Dog Control Policy (No 30)” (part B of the resolution). However, that is recorded as a “note” that “this resolution” has this effect of amending the Dog Control Policy and not a resolution expressly amending the Dog Control Policy. The only operative part of the resolution is in part A. In terms, that allows dogs on-leash on Station Beach.

44. The Council submitted that this resolution necessarily implies the Council revoked or varied the order in the Dog Control Policy prohibiting dogs on all beaches, including Station Beach. The Council, as the relevant local authority, does not have power to allow dogs on-leash in any public place. Any entitlement for people to have dogs in a public place has a separate source. The responsibility of an owner of a dog to keep the dog under effective control by means of an adequate chain, cord or leash that is attached to the dog presupposes that the owner can otherwise have the dog in a public place. Hence, the Council’s resolution, although expressed in terms of allowing dogs on-leash at Station Beach, is in effect recording the result of a partial revocation or variation of the Dog Control Policy that prohibited dogs on all beaches, so that dogs are no longer prohibited on Station Beach.

45. The Group again contests the Council’s submission, saying that it was necessary for the Council expressly to resolve to revoke or vary the order in the Dog Control Policy prohibiting dogs on all beaches so that it no longer applied to Station Beach. The consequence, the Group submitted, is that the Council’s resolution of 17 December 2019 is legally ineffective to allow dogs on-leash on Station Beach.

What use has been enabled by the council decisions?

46. Assuming, however, that the Council’s resolutions of 27 August 2019 and 17 December 2019 are effective to allow dogs on Station Beach, the next question is: What use of Station Beach has been enabled by the Council’s decisions?

47. The first decision of 27 August 2019 authorised the Council to “conduct a dog off-leash area trial at Station Beach, Palm Beach for 12 months, as outlined in the agenda report” (part A of the resolution). The agenda report summarised the background to the proposed dog off-leash area trial. The Council, at its meeting on 26 June 2018, considered a proposal for a “Station Beach Unleashed Dog Trial” and resolved to invite a dog lobby group, Pittwater Unleashed, “to help develop the parameters for the Station Beach trial prior to being placed on public exhibition” (part C of the resolution) and for the public consultation process to begin within 12 weeks (part D of the resolution).

48. The agenda report noted the Council’s consultation with various State government agencies. The Department of Industry, Land and Water informed the Council that if Station Beach was chosen to trial an off-leash dog swimming area, the Council would need to obtain a conditional licence. The Department required that a Review of Environmental Factors (REF) be included with the licence application. A REF was accordingly prepared. The agenda report noted public consultation occurred between 16 November 2018 to 28 February 2019.

49. The agenda report referred to the REF dated 28 May 2019, noting key information, including that:

“- The trial is unlikely to have any significant or long-term negative environmental impacts providing that the mitigation measures are implemented (most have been resolved simply by the design of the trial).

- The main potential impacts (of the trial) are to the aquatic environment including water quality and marine biodiversity. The shallows approaching the beach contain extensive seagrass beds including the endangered population of Posidonia australis.

- The key environmental considerations for the trial include limiting impacts to seagrass and monitoring of water quality.

- The potential impacts for nearby residents include noise, increase in traffic flow and traffic congestion.”

50. The agenda report noted that the Council sought community feedback on the REF from 14 June to 12 July 2019. The agenda report noted that: “A key matter raised was about whether or not Council could implement the REF’s mitigation measures.” The agenda report stated that:

“A practical trial option arising from the REF 2019 is to establish an off-leash boundary three metres from the edge of the seagrass beds and that dog activity is permitted east of this line on restricted days and times. This option provides the most effective arrangement for Council to implement the mitigation measures required.”

51. The agenda report noted the comments on the REF by the Department of Industry, Lands and Water and the Department of Primary Industries, Fisheries. The Department of Industry, Lands and Water reiterated that if Council wished to proceed with a trial a licence application would need to be submitted along with the results of community engagement, the REF, a management plan about how potential impacts identified in the REF will be addressed and Fisheries’ consent.

52. The discussion in the agenda report to this point did not outline any parameters for the trial; it merely set the background. The agenda report then did recommend the Council conduct a dog off-leash area trial and outlined the main aspects:

“Following consideration of the advice from the State Government agencies, the findings of the REF 2019 and community feedback, it is recommended that a licence be sought to conduct a dog off-leash area trial at Station Beach for 12 months. The main aspects of the trial are:

Off-leash area days and times

4:00pm to 10:30am, Monday to Sunday (Australian Eastern Standard Time, non-daylight saving time).

5:30pm to 10:30am, Monday to Friday (Australian Eastern Daylight Time, daylight saving time, summer).

Dogs prohibited on Station Beach outside these days and times.

Off-leash area boundaries (Attachments 8,9)

Eastern boundary, three metres east of the seagrass beds closest to and parallel to Station Beach. Denoted by three marker buoys (Attachment 10) and signage on the southern edge of the Station Beach wharf.

Western boundary to be along the edge of the Palm Beach Golf Course.

Northern boundary to be the southern edge of the Station Beach wharf.

Southern boundary approximately 110 metres north of the Beach Road entry.

On-leash area (Attachments 8, 9)

An on-leash area is established between Beach Road and the southern boundary of the off-leash area and to be in effect on the same days and times as the off-leash area.”

53. Attachments 8 and 9, referred to in the off-leash area boundaries, mapped the boundaries of the dog off-leash area at high tide and low time respectively on aerial photographs. Both attachments marked the four boundaries of the off-leash area as described in the agenda report. The boundaries of the area were the same, although the western boundary would appear to be different at low tide than high tide due to the recession of tidal waters. The western boundary was shown to have four marker buoys (not three as described) distributed along a red dotted line showing the “extent of off-leash dog area,” with a notation “off-leash boundary 3 metres from edge of the seagrass bed and running parallel to the beach. Approximate length of boundary 520m.” The attachments showed two locations for “signs, bins, bag dispenser”, one on the southern side of the Station Beach wharf (at the northern boundary) and another at Beach Road where it joins the beach. The latter location corresponded with the southern boundary of the on-leash area.

54. Attachment 10 was a photo of the marker buoys proposed to be used to mark the western boundary.

55. This description of the “main aspects of the trial”, and the attachments, did not in terms incorporate any mitigation measures recommended in the REF other than those measures regarding the boundaries of the off-leash area, the days and times of the off-leash area, and signage, bins and bag dispensers. The REF summarised the recommended mitigation measures in s 5.2.3 and stated that “Table 5-2 outlines measures that would be implemented to manage and mitigate potential impacts to marine biodiversity.” (p 23). Many of the mitigation measures concerning the boundaries of the dog off-leash area and signage, bins and bag dispensers were incorporated in the terms of the recommendation in the agenda report and the Council’s resolution. However, some key mitigation measures were omitted, including:

“- Install signs informing users that dogs must not be allowed to run through seagrass beds

- Carry out water quality monitoring during the trial event.

- Install signs educating site visitors about C. taxifolia [an invasive seagrass], including how to minimise its spread in the area should be placed at both ends of the site.

- Undertake monitoring of the seagrass and White’s seahorse on a monthly basis during the trial to assess potential impacts of the activity;

- Increased compliance patrols by Council officers to ensure compliance with permitted dog access areas and times.”

56. The result is that the Council’s resolution of 27 August 2019 to conduct a dog off-leash area trial at Station Beach for 12 months as outlined in the agenda report enabled a use of Station Beach by people with their unleashed dogs within the boundaries of the off-leash area described and on the days and times specified, but without implementation of the mitigation measures of installation of signage other than the minimum signage identifying the boundaries and terms of usage of the off-leash area, undertaking monitoring of water quality, seagrass and White’s seahorse, or increased compliance patrols by the Council.

56. The second decision of 17 December 2019 authorised the Council to “allow dogs on-leash at Station Beach, Palm Beach, as outlined in the report (including as to specified location, days and times” (part 1 of the resolution). The agenda report stated its purpose as being “to provide an update on the implementation of Council resolution 267/19 – Station Beach Dog Off-Leash Area Proposed Trial and to allow dogs on-leash at Station Beach on specified days and at specified times pending the enactment of that resolution.” The report noted that the Council, pursuant to part B of the 27 August 2019 resolution, had submitted a licence application “to conduct a dog off-leash area trial at Station Beach to the Department in September 2019, but a licence is yet to be granted to the Council.”

57. The report noted that until a licence is received, the dog off-leash area trial cannot commence. In the meantime, the Dog Control Policy, which is still in force, applies so that “all beaches are prohibited areas for dogs” and “signage notices to the effect that dogs are prohibited are erected at Station Beach.” The report recommended that:

“Given the delays to the implementation of the Off-Leash Resolution, Council may wish to consider the partial removal of the prohibition of dogs on Station Beach. Should this occur as outlined in this report, this would allow dogs on-leash at Station Beach on the specified days and at the specified times provided they are controlled in accordance with the requirements of the Companion Animals Act 1998.

This could allow an option pending the issue of a licence by the Department. If so, it is considered that this could be as follows:

- On-leash area boundaries (Attachment 1):

- Northern boundary to be the southern edge of the Station Beach wharf (as adopted for the Station Beach dog off-leash area trial).

- Southern boundary to be the southern edge of Beach Road (as adopted for the Station Beach dog off-leash area trial).

- Eastern boundary to be the western boundary of the Palm Beach Golf Club Ltd’s lease area as identified in the Council’s lease with club.

- On-leash area days and times (being the same as adopted for the Station Beach dog off-leash area trial):

- 4:00pm to 10:30am, Monday to Sunday (Australian Eastern Standard Time, non-daylight saving time).

- 5:30pm to 10:30am, Monday to Friday (Australian Eastern Daylight Time, daylight saving time, summer).

- Dogs prohibited on Station Beach outside these days and times.

Council will continue to pursue a licence as contemplated by the Off-Leash Resolution. Should a licence be granted by the Department and agreed to by Council, the Station Beach dog off-leash area trial would commence in accordance with the Off-Leash Resolution and would replace the option outlined in this report.”

59. Attachment 1 mapped the boundaries of the on-leash area on an aerial photograph. The northern boundary was the southern side of the Station Beach wharf and the eastern boundary was the western edge of the golf course, both being the same as for the off-leash area. The southern boundary was, however, different. Instead of being around 110m north of the Beach Road entry, as it was for the off-leash area, the southern boundary was at the southern edge of Beach Road. This was the southern boundary of the on-leash area proposed in the agenda report for the 27 August 2019 but not expressly adopted by the resolution of 27 August 2019. No western boundary was shown for the on-leash area, in contrast to the off-leash area.

60. The report noted that if the Council approves the recommendation, the project could be commenced by “installation of signs that outline the conditions relating to the presence of dogs at Station beach and a map” and “installation of two dog bag dispensers, bags and relevant signage.”

61. The report did not recommend adoption of the mitigation measures recommended in the REF, concerning the boundaries of the area (indeed the southern boundary was moved southwards and there was no western boundary contrary to the recommended mitigation measures in the REF), installation of signage other than the minimum signage identifying the boundaries and terms of usage of the on-leash area, undertaking monitoring of water quality, seagrass or White’s seahorse, or increased compliance patrols by the Council.

62. The result is that the Council’s resolution of 17 December 2019 to allow dogs on-leash at Station Beach as outlined in the report enabled a use of Station Beach by people with their leashed dogs within the boundaries described and on the days and times specified, but without implementation of these mitigation measures.

The unlawful development ground

The Group’s argument that the use is unlawful

63. The Group contends that each Council decision authorises a use of land, which is a type of development under Part 4 of the EPA Act: see s 1.5(1)(a).

64. The Group submits the first decision of 27 August 2019 authorised a use of Station Beach and the adjacent waters within the boundaries and on the days and at the times specified for the dog off-leash area trial. To implement the trial, the Council would erect signs, bins and bag dispensers and install marker buoys to delineate the western boundary. The Council’s decision allowed people to use the beach and adjacent waters within the boundaries of the designated dog off-leash area with their unleashed dogs, a use that had been prohibited since 1997 when the Council had by order declared dogs to be prohibited on all beaches, which included Station Beach. The use by people with their unleashed dogs in the dog off-leash area is distinct from the use by people without dogs. The Council would facilitate and enforce this use, including by emptying and servicing the bins and bag dispensers and implementing compliance patrols to ensure people are complying with the dog off-leash area boundaries, days and times. The doing of the acts, matters or things, both by the Council and by people with their unleashed dogs, constitutes the use of the land above and below MHWM within the boundaries of the dog off-leash area. The use of land is a type of development: see s 1.5(1)(a). The doing of the acts, matters or things constitutes the use of land and the carrying out of development: see s 1.5(3).

65. Similarly, the Group submits, the second decision on 17 December 2019 authorised a use of Station Beach and adjacent waters within the boundaries and on the days and at the times specified for the dog on-leash area. To implement the use, the Council would erect signs, bins and bag dispensers. The Council’s decision allowed people to use the beach and adjacent waters within the boundaries of the designated dog on-leash area, a use that had been prohibited since 1997 when the Council had by order declared dogs to be prohibited on all beaches, which included Station Beach. The use by people with their leashed dogs in the dog on-leash area is distinct from the use by people without dogs. The Council would facilitate and enforce this use, including by emptying and servicing the bins and bag dispensers and implementing compliance patrols to ensure people are complying with the dog on-leash area boundaries, days and times.

66. The doing of these acts, matters or things, both by the Council and by people with their leashed dogs, constitutes the use of the land above and below MHWM within the boundaries of the dog on-leash area. The use of land is a type of development: s 1.5(1)(a). The doing of the acts, matters or things constitutes the use of land and the carrying out of development: s 1.5(3).

67. The land to be used under both decisions straddles two zones under the applicable Pittwater Local Environmental Plan 2014 (PLEP), Zone RE1 Public Recreation on the landward side of the beach above MHWM and Zone E2 Environmental Conservation on the waterside of the beach below MHWM. The Group contends that the use of land authorised by the two decisions is not permitted without consent in either zone.

68. In the RE1 zone, five purposes of development are permitted without consent, being building identification signs; environmental protection works; horticulture; markets and roads. In the E2 zone, only environmental protection works are permitted without consent. None of these purposes of development is applicable to the uses authorised by the Council’s decisions. The use of land in the RE1 zone, essentially the beach above MHWM, involves recreation by the public with their dogs, either off-leash (the first decision) or on-leash (the second decision) and the installation of appropriate signage, bins and bag dispensers. The use of the land in the E2 zone, the land below MHWM covered by tidal waters, similarly involves recreation by the public with their dogs, either off-leash or on-leash (depending on the decision) and the installation of the three marker buoys in the water (for the off-leash use). Such use and installation of signs, bins, bag dispensers and marker buoys are not environmental protection works, as defined in the Dictionary to the LEP. “Environmental protection works” are defined to mean:

“works associated with the rehabilitation of land toward its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration work and the like, but does not include coastal protection works.”

69. The Group contends that the use of land authorised by each Council decision is not for any of the nominate purposes permitted with consent in either the RE1 zone or the E2 zone. In the RE1 zone, the nominate purposes of development permitted with consent are:

“Aquaculture; Centre-based child care facilities; Community facilities; Environmental facilities; Information and education facilities; Kiosks; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Restaurants or cafes; Signage; Take away food and drink premises; Water recreation structures.”

70. In the E2 zone, the nominate purposes permitted with consent are “Environmental facilities; Oyster aquaculture; Recreation areas; Roads.”

71. Of these nominate purposes, the only potentially applicable purpose is “recreation areas”. “Recreation area” is defined in the Dictionary to PLEP to mean:

“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).”

72. The Group contends that the use authorised by each Council decision does not meet this definition. The first decision authorised an experimental off-leash dog trial and associated monitoring and assessment which is different to the utilisation of land for a children’s playground, for community sporting activities or as a public park, reserve or garden. The second decision authorised the permanent use of the beach for dogs on a leash, without any limitation as to number, type or behaviour of dogs, and with no western boundary for the on-leash area.

73. The Group contends, therefore, that the use authorised by each Council decision is for an innominate prohibited purpose in each zone. In the RE1 zone, prohibited development is any development not specified in item 2 (as permitted without consent) or item 3 (as permitted with consent). In the E2 zone, prohibited development includes specified nominate purposes, none of which is applicable, and “any other development not specified in item 2 or 3.” As the use authorised by the Council’s decisions is not for a purpose of development specified in item 2 or 3 of the Land Use Table for the RE1 zone or E2 zone, the use is prohibited.

74. The Group then argues that the Council’s decisions and the uses of land that the decisions authorised breach s 4.3 of the EPA Act. Section 4.3 of the EPA Act prohibits a person carrying out on land development that is prohibited by an environmental planning instrument such as PLEP. The use of the land above and below MHWM within the boundaries of both the dog off-leash area and the dog on-leash area, by both the Council and people with their unleashed dogs (the first decision) or leashed dogs (the second decision), involves carrying out development that is prohibited in each of the RE1 zone and the E2 zone. Insofar as the development of the dog off-leash area trial is yet to commence, the breach of s 4.3 is a threatened or apprehended contravention of the EPA Act: s 9.44(1)(a)(ii). The Council has said it will carry out the trial as soon as it receives a licence from the Department to use the submerged Crown land. The carrying out of the development of the dog on-leash area, which is currently occurring, is a contravention of s 4.3 of the EPA Act.

75. The Group also contends that the Council, in making each of the decisions of 27 August 2019 and 17 December 2019, acted without power under the EPA Act by purporting to authorise the carrying out of development, the use of the dog off-leash area trial (the first decision) and the use of the dog on-leash area (the second development), which was prohibited by PLEP.

76. In the alternative, if the use of land authorised by each Council decision could be categorised as being for the purpose of recreation area, a purpose permitted with consent in the RE1 zone and the E2 zone, the Group contends that the Council’s decisions and the uses of land that the decisions authorised breach s 4.2 of the EPA Act. Section 4.2 of the EPA Act prohibits a person carrying out on land development that needs consent unless a consent has been obtained and is in force and the development is carried out in accordance with the consent. The use of the land above and below MHWM within the boundaries of both the dog off-leash area and the dog on-leash area, by both the Council and people with their unleashed dogs (the first decision) or leashed dogs (the second decision), involves carrying out development for the purpose of recreation area, which is only permitted with consent, but no consent has been obtained. Insofar as the development of the dog off-leash area trial is yet to commence, the breach of s 4.2 is a threatened or apprehended contravention of the EPA Act, as the Council has said it will carry out the trial as soon as it receives a licence from the Department to use the submerged Crown land. The carrying out of the development of the dog on-leash area, which is currently occurring, is a contravention of s 4.2 of the EPA Act.

77. The Group also contends that the Council, in making each of the decisions of 27 August 2019 and 17 December 2019, acted without power under the EPA Act by purporting to authorise the carrying out of development for the purpose of recreation area, that is permitted only with consent but without actually granting consent to a development application for that development.

78. The Group also relied on cl 5.7(2) of PLEP, which provides:

“Development consent is required to carry out development on any land below the mean high water mark of any body of water subject to tidal influence (including the bed of any such water).”

79. Land below MHWM is in the E2 zone. Each Council decision authorises a use of land below MHWM by people with their dogs off-leash (the first decision) or on-leash (the second decision), yet neither decision constituted the grant of consent under the EPA Act for that use of land below MHWM. Accordingly, the carrying out of each development on land below MHWM involves an apprehended or threatened breach of s 4.2 of the EPA Act (the use authorised by the first decision) or an actual breach of s 4.2 of the EPA Act (the use authorised by the second decision). The Council also acted without power by purporting to authorise the carrying out of development on land below MHWM otherwise than by granting consent to a development application for that development.

The Council’s argument that use is lawful

80. The Council contested the Group’s argument that the use of either the dog off-leash area or the dog on-leash area is in breach of the EPA Act. In summary, the Council contends that:

1. The Council’s decisions do not authorise any use of land;

2. If they do, the use of land is for the purpose of recreation area, which is permitted with consent on land within the RE1 zone and the E2 zone;

3. However, development for that purpose may be carried out without consent on a public reserve under the control of or vested in the Council, under cl 65(3) of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP); and

4. Alternatively, consent is not required to be obtained as the use of land involves the continuance of a use of land for a lawful purpose under s 4.68(1) of the EPA Act.

81. I will elaborate on each of these arguments.

82. As to the first argument, the Council contends that the decisions of 27 August 2019 and 17 December 2019 did not in fact authorise any use of land. Instead, the decisions merely revoked or varied the order made under s 14(1) of the Companion Animals Act prohibiting dogs on all beaches, so as to allow dogs off-leash in the dog off-leash area (the first decision), or on-leash in the dog on-leash area (the second decision) on Station Beach on the days and at the times specified in the decisions. The second decision also involved declaring the specified part of Station Beach to be an off-leash area under s 13(6) of the Companion Animals Act.

83. The Council submits that the entitlement of the public to use the public place of Station Beach with their dogs, whether leashed or unleashed, exists independently from any decision of the Council under s 14(1) or s 13(6) of the Companion Animals Act. An order under s 14(1)(c) or (d) that dogs are prohibited in a specified public place restricts the public’s entitlement to use the public place with their dogs. The revocation of that order reinstates the entitlement to use that public place with their dogs. Section 13(1) regulates the public’s use of the public place with their dogs by requiring the dogs to be leashed. An order under s 13(6) declaring a specified public place to be an off-leash area relaxes the regulation in s 13(1) that the dogs be leashed. Importantly, the Council submits, the Council’s decisions revoking or varying the order under s 14(1) prohibiting dogs on all beaches and declaring part of Station Beach to be an off-leash area under s 13(6), did not themselves grant the public any entitlement to use the public place with their dogs. Accordingly, the decisions did not authorise any use of land, and hence the carrying out of development.

84. The installation of signs, bins and bag dispensers involves giving effect to the revocation or variation of the order prohibiting dogs on all beaches and the declaration of the public place as an off-leash area. An order under s 14(1)(c) and (d) prohibiting dogs in specified public places requires, in order to be effective, that notices be conspicuously exhibited by the local authority (here the Council) at reasonable intervals to the effect that dogs are prohibited in or on the public place. The Council had erected such notices at Station Beach after it had ordered in 1997 that dogs are prohibited on all beaches. The revocation or variation of that order under s 14(1)(c) and (d) required that those notices be removed and replaced by notices to the effect that dogs are allowed off-leash (the first decision) or on-leash (the second decision).

85. The installation of bins and bag dispensers involves discharging the Council’s duty under s 20(2) of the Companion Animals Act to provide sufficient rubbish receptacles for the proper disposal of faeces of dogs that defecate in the public place that, by reason of the Council’s decisions, will be commonly used for exercising dogs, whether off-leash (the first decision) or on-leash (the second decision).

81. The Council submits that the erection of notices was also authorised by the Council’s power under s 632 of the Local Government Act 1993. The Council has power to erect a notice regulating the taking of any animal into a public place or the use of any animal in the public place: s 632(2)(c) and (d).

82. The Council submits that in relation to the land above MHWM, which is part of Governor Phillip Park, the Council has the control and management of the land as a public reserve under the Local Government Act, Crown Land Management Act 2016 and the Draft Governor Phillip Park Palm Beach Plan of Management, prepared under the Crown Lands Act 1989, and adopted under the former Pittwater Council on 9 December 2002, although not by the Minister. The plan of management refers to the general maintenance of Governor Phillip Park, including the installation of bins as part of the recreation facilities and amenities.

83. The Council submits, therefore, that the decisions of 27 August 2019 and 17 December 2019 did not authorise the installation of the signs, bins and bag dispensers; the authority to do this lay elsewhere, in the Companion Animals Act and the Local Government Act.

84. As to the second argument, the Council contends that if the Council’s decisions could be seen to have authorised a use of land, the use is properly to be characterised as being for the purpose of recreation area, which is permitted with consent in both the RE1 zone and the E2 zone. “Recreation area” is defined in PLEP as “a place used for outdoor recreation that is normally open to the public”. The definition continues to give some specific places that are recreation areas, including “a public park”. However, these specified places are inclusions and do not limit the ambit of the chapeau.

85. The Council submits that Station Beach is currently “a place used for outdoor recreation that is normally open to the public” as well as being “a public park”. The use of land enabled by each Council decision will continue to be “a place used for outdoor recreation that is normally open to the public” and “a public park”. It matters not that the use of land enabled by the Council’s decisions involves the public using the place for outdoor recreation with their dogs (whether unleashed or leashed) while before the decisions were made the public could only use the place for outdoor recreation without their dogs. Characterisation of the purpose of the use of land should be done at a level of generality which is necessary to cover the individual activities, not in terms of the detailed activities: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [36] and Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310.

86. As to the third argument, the Council contends that cl 65(3) of the Infrastructure SEPP overrides the requirements of PLEP to obtain consent for development for the purpose of recreation area. Clause 65(3) provides:

“Any of the following development may be carried out by or on behalf of a council without consent on a public reserve under the control of or vested in the council—

(a) development for any of the following purposes—

(i) roads, pedestrian pathways, cycleways, single storey car parks, ticketing facilities, viewing platforms and pedestrian bridges,

(ii) recreation areas and recreation facilities (outdoor), but not including grandstands,

(iii) visitor information centres, information boards and other information facilities,

(iv) lighting, if light spill and artificial sky glow is minimised in accordance with the Lighting for Roads and Public Spaces Standard,

(v) landscaping, including landscape structures or features (such as art work) and irrigation systems,

(vi) amenities for people using the reserve, including toilets and change rooms,

(vii) food preparation and related facilities for people using the reserve,

(viii) maintenance depots,

(ix) portable lifeguard towers,

(b) environmental management works,

(c) demolition of buildings (other than any building that is, or is part of, a State or local heritage item or is within a heritage conservation area).”

92. The development enabled by the Council’s decisions is for one of these purposes, being “recreation areas”. The purpose of “recreation areas” has the same meaning as it has in the Standard Instrument (Local Environmental Plans) Order 2006 made under the EPA Act: see cl 5(1) of the Infrastructure SEPP. This is the same meaning as in PLEP.

93. The Council submits that the land above MHWM at Station Beach, in the RE1 zone, is a public reserve under the control of or vested in the Council, being part of Governor Phillip Park. Governor Phillip Park consist of an amalgamation of three Crown Reserves. The first reserve (reserve 56217), being the southern area of the isthmus, was gazetted as a reserve for public recreation on 22 June 1923, the second reserve (reserve 61141), being the northern area of the isthmus, was gazetted as a reserve for public recreation on 17 May 1929, and the third reserve (reserve 64883), being most of Barrenjoey headland, was gazetted as a reserve for public recreation on 29 March 1934.

94. The Council submits that so too the land below MHWM at Station Beach, in the E2 zone, can be seen to be a public reserve under the control of or vested in the Council. The term “public reserve” is defined in cl 64 of the Infrastructure SEPP to have the same meaning as it has in the Local Government Act. The Dictionary to the Local Government Act defines “public reserve” to mean:

“(a)  a public park, or

(b) any land conveyed or transferred to the council under section 340A of the Local Government Act 1919, or

(c) any land dedicated or taken to be dedicated as a public reserve under section 340C or 340D of the Local Government Act 1919, or

(d)  any land dedicated or taken to be dedicated under section 49 or 50, or

(e) any land vested in the council, and declared to be a public reserve, under section 37AAA of the Crown Lands Consolidation Act 1913, or

(f) any land vested in the council, and declared to be a public reserve, under section 76 of the Crown Lands Act 1989, or

(g)  Crown managed land that is dedicated or reserved—

(i)  for public recreation or for a public cemetery, or

(ii)  for a purpose that is declared to be a purpose that falls within the scope of this definition by means of an order published in the Gazette by the Minister administering the Crown Land Management Act 2016,

being Crown managed land in respect of which a council has been appointed as its Crown land manager under that Act or for which no Crown land manager has been appointed, or

(h) land declared to be a public reserve and placed under the control of a council under section 52 of the State Roads Act 1986, or

(i) land dedicated as a public reserve and placed under the control of a council under section 159 of the Roads Act 1993,

and includes a public reserve of which a council has the control under section 344 of the Local Government Act 1919 or section 48, but does not include a common.”

95. The Council argues that the land below MHWM covered by tidal waters at Station Beach is “a public park” (within paragraph (a)) or “a public reserve of which the Council has control under s 344 of the Local Government Act 1919 or s 48” of the Local Government Act 1993 (within the concluding phrase of the definition). The term “public park” is not defined in the Local Government Act. The Council submits that it bears its ordinary meaning, which is wide enough to include the land below MHWM covered by tidal waters.

96. Section 48 of the Local Government Act 1993 provides:

“(1) Except as provided by section 2.22 of the Crown Land Management Act 2016, a council has the control of—

(a)  public reserves that are not under the control of or vested in any other body or persons and are not held by a person under lease from the Crown, and

(b)  public reserves that the Governor, by proclamation, places under the control of the council.

(2)  If any doubt arises as to whether any land comes within the operation of this section, or as to the boundaries of a public reserve, the Governor may, by proclamation, determine the matter.”

97. The Council submitted that the land below MHWM at Station Beach can be considered to be a public reserve that is not under the control of or vested in any other body or persons and is not held by a person under lease from the Crown.

98. Section 344 of the former Local Government Act 1919 provided that:

“(1) The council shall have the care, control and management of—

(a) public reserves which are not under the care of or vested in any body or persons other than the council, and are not held by any person under lease from the Crown ; and

(b) public reserves which the Governor by proclamation places under the care, control, and management of the council.

(2) If any doubt arise as to whether any land comes within the operation of this section, or as to the boundaries of any public reserve, the Governor may by proclamation determine the matter.”

99. Although this wording in s 344 of the 1919 Act is slightly different to the wording in s 48 of the 1993 Act, the Council submits it had the same effect. The Council argues that the land below MHWM at Station Beach is a public reserve not under the care of or vested in any body or persons other than the Council and is not held by any person under lease from the Crown.

100. The Council submits that the Council does have specified powers and responsibilities of care, control and management of the land below MHWM under various statutes, including the Local Government Act (such as ss 22, 23 and 632) and the Companion Animals Act (such as ss 13, 14 and 20).

101. The Council submits, therefore, that the land below MHWM at Station Beach is “a public reserve under the control of or vested in the Council” and hence cl 65(3) of the Infrastructure SEPP applies to this land.

102. Clause 8 of the Infrastructure SEPP provides that, if there is an inconsistency between the Infrastructure SEPP and any other environmental planning instrument, such as PLEP, the Infrastructure SEPP prevails to the extent of the inconsistency. As a consequence, the Council submits, cl 65(3) of the Infrastructure SEPP, which permits development for the purpose of recreation areas, amongst other purposes, to be carried out without consent, prevails over the provisions of PLEP that require development consent to be obtained for that development on land above and below MHWM, namely cl 2.3 and the Land Use Table for the RE1 zone and the E2 zone (read with s 4.2 of the EPA Act) and cl 5.7 of PLEP.

103. As to the fourth argument, the Council submits that, if cl 65(3) of the Infrastructure SEPP does not relieve the Council from the requirement under PLEP to obtain consent to carry out development for the purpose of recreation area on land above and below MHWM at Station Beach, s 4.68(1) of the EPA Act has that effect instead. Section 4.68(1) provides:

“(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.”

104. The Council submits that the land at Station Beach that is to be used for the dog off-leash area trial (enabled by the first decision) or in the dog on-leash area (enabled by the second decision) was used immediately before each decision was made for the lawful purpose of recreation area. The use of land enabled by each Council decision is a continuance of that use of land for the lawful purpose of recreation area. The detailed activity of use by people with their dogs, whether unleashed or leashed depending on the decision, might be different from use by people without dogs, but this does not cause the use to be for a different purpose. The Council reiterated its submission that characterisation of the purpose of the use of land is to be done at a level of generality which is necessary and sufficient to cover the individual activities carried on, not in terms of the detailed activity. Use of the land at Station Beach by people with or without their dogs is properly to be characterised as being for the same purpose of recreation area. As a consequence, the use of the land at Station Beach by people with their dogs, enabled by the Council’s decisions of 27 August 2019 and 17 December 2019, is a continuance of the use of the land for the lawful purpose of recreation area. Accordingly, PLEP does not operate to require consent to be obtained for the continuance of that use.

105. The Council accepted that s 4.68(1) does not authorise “any enlargement or expansion or intensification of the use therein mentioned”: s 4.68(2)(c). However, the Council contends the use of Station Beach enabled by the Council’s decisions of 27 August 2019 and 17 December 2019 do not involve any enlargement, expansion or intensification. There is no evidence that more people will use the land at Station Beach for the purpose of a recreation area with their dogs than people did without their dogs. Of course, the number of dogs will increase; before the Council’s decisions dogs were prohibited on Station Beach while after the Council’s decisions dogs are permitted on Station Beach, whether unleashed or leashed. But this does not establish that more people will use Station Beach after the Council’s decisions than the numbers of people who used Station Beach before the Council’s decisions.

The Group’s response to the Council’s arguments

106. The Group maintained its arguments that each Council decision does authorise a use of land at Station Beach and that the purpose of such use cannot be characterised as being for the permissible purpose of recreation area. The Group thereby joined issue with the Council’s first two arguments.

107. As to the third argument, the Group contended that cl 65(3) of the Infrastructure SEPP does not apply to the use of land at Station Beach authorised by the Council’s decisions for three reasons.

108. First, the use of land at Station Beach is not one that is “carried out by or on behalf of a Council”, as required by the chapeau of cl 65(3). The use of the land at Station Beach has been authorised by the Council’s decisions of 27 August 2019 and 17 December 2019, but will be carried out by others, the public, except for the installation of signs, bins and bag dispensers, as well as marker buoys for the dog off-leash area trial. The use of the land does not, therefore, come within cl 65(3), which creates a category of facilities, such as toilets and change rooms, sports fields, cricket pitches etc, that a Council may establish in a public reserve.

109. Secondly, the particular permitted purpose relied upon by the Council of recreation areas (in cl 65(3)(ii)) is not the purpose for which the land at Station Beach will be used. A “recreation area” is “a place used for outdoor recreation that is normally open to the public”. That is to say, a place used by the public for outdoor recreation. The public refers to humans, not dogs. The use of a beach for exercising dogs, whether off-leash or on-leash, is not a use for the purpose of a recreation area. It matters not that the dogs might be accompanied by people.

110. Thirdly, cl 65(3) does not apply to land below MHWM, as that land is not “a public reserve under the control of or vested in the Council”, as required by the chapeau of cl 65(3). The land below MHWM at Station Beach is not a “public reserve” as that term is defined in the Local Government Act. It is not a “public park”, only the land above MHWM at Station Beach is a public park, being part of the public reserve of Governor Phillip Park. That park does not extend below MHWM. The land below MHWM is also not “a public reserve of which a council has the control under s 344 of the Local Government Act 1919 or s 48” of the Local Government Act 1993. The land below MHWM is Crown land under the care, control and management of the Crown. The Council does have some limited powers under limited statutes with respect to Crown land below MHWM, such as zoning and development control under the EPA Act (exemplified by the E2 zoning of the land below MHWM and the requirement in cl 5.7 for development consent for development on land below MHWM) and regulating or prohibiting dogs in public places under the Companion Animals Act. However, the availability of such limited powers with respect to a public reserve does not cause the public reserve to be “under control of or vested in the Council”. That the Council has no such control but rather the Crown does have control over the land below MHWM at Station Beach is illustrated by the Council having to apply for a licence under s 5.21 of the Crown Lands Management Act to occupy and use the Crown land below MHWM for the dog off-leash area trial.

111. The consequence, the Group submits, is that cl 65(3) does not apply so as to overcome the requirement of PLEP to obtain consent for the use of the land at Station Beach, both above and below MHWM, authorised by the Council’s decisions of 27 August 2019 and 17 December 2019 or, alternatively, for the use of the land below MHWM enabled by the Council’s decisions.

112. As to the fourth argument, the Group contested that the use of the land at Station Beach authorised by the Council’s decisions is a continuance of the current use of the land for the purpose of a recreation area for four reasons.

113. First, the Group reiterated that the use of Station Beach authorised by the Council’s decisions is for a different purpose than the use of Station Beach immediately before the Council’s decisions. The use immediately before the Council’s decisions was a use by people of Station Beach for outdoor recreation without their dogs, while the use after the Council’s decisions will be a use of Station Beach for exercising their dogs, either off-leash or on-leash depending on the decision. The latter use of the land differs in kind from the former use of the land. The Group referred to the statement in Royal Agricultural Society (NSW) v Sydney City Council at 310 that while the test for characterising the purpose of a use is not so narrow as to require characterisation of purpose in terms of the detailed activities which have taken place, “it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.”

114. Secondly, the Group submitted that, if the use of the land authorised by the Council’s decisions could be characterised as being for the purpose of recreation area and a continuance of the current use of the land for that purpose, the use of the land authorised by the Council’s decisions is an enlargement, expansion or intensification of the current use of the land. Prior to the Council’s decisions of 27 August 2019 and 17 December 2019, dogs were prohibited on Station Beach. Any lawful use by the public of Station Beach for outdoor recreation was without their dogs. The Council’s decisions authorised use of Station Beach by the public with their dogs, whether unleashed or leashed. The Council’s decisions thereby effected an enlargement in the area of Station Beach used for exercising dogs, from no area at all to the areas of the dog off-leash area or dog on-leash area. The Council’s decisions also allowed an increase in the number of dogs that could lawfully be exercised in the dog off-leash area or on-leash area, which is also an enlargement: see South Sydney City Council v Hulakis & Teakdale Pty Ltd (1996) 92 LGERA 401 at 407, 409.

115. The Council’s decisions also effected an intensification of the use of Station Beach. Intensification of the use is shown by the increase in the number of dogs being exercised on the beach (from nil to around 100-150 dogs per day), the installation of signs, bins and bag dispensers for the use of the beach by dogs, and the increase in environmental impacts due to the number of dogs on the beach: South Sydney City Council v Hulakis & Teakdale Pty Ltd at 404; Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 at [216]; Burwood Council v Iglesias Ni Cristo (No 2) (2019) 242 LGERA 32; [2019] NSWLEC 159 at [69], [97].

306. In any event, Ms Astles did not directly answer the question raised in each factor she considered for the threatened population or threatened species. For the threatened Posidonia australis seagrass population in Pittwater, Mr Astles answered the question raised by the only factor that she considered (paragraph (b)) by saying that “the risk of extinction of the local population of P. australis from disturbance by dogs swimming alone is low”. This answer is unhelpful. The question raised by paragraph (b) is whether the proposed activity is likely to have an adverse effect on the lifecycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction. Ms Astles’ answer is to the second part of this question, although not in the terms of that part of the question, but does not address the first part of the question. Ms Astles’ answer also only focuses on one aspect of the activity of conducting a dog off-leash area trial, being “dogs swimming alone”, and not the whole activity. Ms Astles does not elsewhere address whether the whole activity is likely to significantly affect the threatened Posidonia australis seagrass population in Pittwater.

307. Finally, Ms Astles qualifies her answer that the risk of extinction of the local population of Posidonia australis is low by saying that this “depends on the level of disturbance occurring as per section 4.3 of this report”. Section 4.3 of her report identifies the factors contributing to the level of disturbance by dogs and their owners, but does not come to any conclusion as to what is the level of disturbance. This is the reason for Ms Astles qualifying her answer to the question of whether the activity is likely to significantly affect the Posidonia australis seagrass population in Pittwater. The likely significant effect of the activity all depends on the level of disturbance of the activity, but Ms Astles did not know what that level of disturbance would be. Here is what Ms Astles said about the uncertainty concerning the level of disturbance:

“Whether the interaction between dogs, their owners and seagrass habitats is substantial enough to cause damage to this seagrass and the surrounding soft sediments depends on the intensity of dog activity, frequency, duration and timing, spatial extent, level of compliance to rules and the cumulative effects with other human disturbances in the area. Intensity would be determined by the number and size of dogs using the area, type of activity they engaged in (eg walking, running, swimming, see Figure 5) and whether their owners also participated in the activity with their dog in the habitats. Frequency, duration and timing relates to how many week days or weekend days per month the dog swimming area was used, whether this varies during school holidays, public holidays and between winter and summer, how many days the DSA was used per day and any differences [in] the use between morning and evening. Spatial extent relates to where in the dogs swimming area dogs and their owners spend most of their time (eg shallow versus deep). Level of compliance relates to the extent to which dog owners use the DSA during low tide and/or outside the designated area. Finally there are other human disturbances having an impact on the seagrass and soft sediment habitats along Station Beach (eg propeller, mooring, and anchor scarring) and therefore any additional impacts that may be caused by dogs swimming need to be included in assessing the cumulative pressures on the habitats in the area (Grech et al, 2011).

An appropriately designed study that specifically collects data for these factors would be needed to determine the level of disturbance by dogs within the DSA at Station Beach compared to control areas. During three site visits made to Station Beach for this report, dogs and their owners were observed on the beach despite the fact that there are signs prohibiting dogs on the beach. The number of dogs observed per visit over a three hour period was 2, 3 and 3 and there was evidence of other dogs based on fresh footprints in the sand along the beach. Dogs were medium to large in size and all the dogs were off their leash. This indicates that compliance to the rules of a DSA might be a significant issue. There are approximately 50,000 dogs in the Pittwater area (Northern Beaches Council pers.comm.) so the potential for more dogs to be using this area is substantial.” (pp 11-12)

311. As Ms Astles was unable to determine the level of disturbance caused by the activity, she was unable to assess the likely significance of the effects of the activity on any threatened population or threatened species.

312. For the threatened species of White’s seahorse, Ms Astles merged the questions raised by two factors (paragraphs (a) and (d)) but did not directly answer the questions raised by the factors, instead engaging in a general discussion of the subject matter of the factors. Again, Ms Astles’ discussion of the factors is qualified by her statement that the likely impact “depends on the level of disturbance (see section 4.3 above)”. That section, as earlier noted, does not determine the level of disturbance but instead merely raises questions about what is the level of disturbance.

313. Nowhere in the discussion of either the threatened Posidonia australis seagrass population in Pittwater or the threatened species of White’s seahorse does Ms Astles directly answer the question of whether the activity of conducting the dog off-leash area trial is likely to significantly affect the threatened population or the threatened species. The discussion skirts around that threshold question.

314. There is, however, some indication that Ms Astles considered the activity might have a sufficiently significant effect on the threatened population and the threatened species as to be unacceptable. In her conclusion in the report, Ms Astles recommends:

“(a) Given the widespread damage to the seagrass bed from other human disturbances off Station Beach, any further damage from disturbances by dog swimming should be avoided. This would be consistent with the conservation advice for P. australis ecological community in Pittwater from the Commonwealth of Australia Department of the Environment (2015)…

(b) Serious consideration should be given to whether the introduction of a dog swimming area at Station Beach adjacent to the largest seagrass bed in the Pittwater Estuary is consistent with the intent of the legislative and policy commitments provided in section 2.1.1. of this report and Northern Beach Council own Draft Pittwater Waterway Strategy.” (p 27)

315. Ms Astles recommended implementation of mitigation measures, summarised in paragraph (e), only if the “dog swimming/activity” is permitted, a course Ms Astles had recommended against in paragraphs (a) and (b).

316. Dr Cummins undertook her own assessment of whether the activity of conducting the dog off-leash area trial is likely to significantly affect the environment and concluded that it would:

“In my opinion the impacts associated with access to sediment/seagrass habitats within the proposed Trial Area by dogs (set out above) are very likely to have a significant impact on many species, including P. australis, Zostera and White’s seahorse, in those habitats immediately adjacent to Station Beach. By contrast, the sediment/seagrass habitats found in adjacent areas at similar depths that are not exposed to such activities will not suffer this impact. A key reason for me coming to this opinion is that the on-leash [sic off-leash] use will in my opinion by very likely to significantly alter the distribution (ie percentage cover and size of patches of mostly P. australis and Zostera) and species composition (eg diversity and the presence/absence of non-native species such as Caulerpa taxifolia) of sediment/seagrass habitats and their ecological communities (including the White’s seahorse), in relation to sediment/seagrass habitats found in adjacent areas at similar depths that are not exposed to such activity. Based on the literature I refer to in this affidavit, in my opinion, this is very likely to diminish the capacity of the soft sediment and seagrass habitats within the Trial Area, and the ecological communities to recolonise after disturbance (if at all) and affect the stability of the P. australis meadow further from the shore.” ([62] of Dr Cummins’ affidavit of 27 March 2020]).

317. Dr Cummins later applied the seven part test in s 221ZV of the Fisheries Management Act to assess whether each activity of conducting the dog off-leash area trial or allowing dogs on-leash at Station Beach is likely to significantly affect the threatened Posidonia australis seagrass population in Pittwater or the threatened species of White’s seahorse. Dr Cummins concluded:

“Considering the ‘seven part tests’ set out in Annexure A, together with the matters set out in my affidavit of 27 March 2020, does not cause me to change any reasoning or conclusion of my earlier affidavit, but rather confirms, for me, the conclusions I have expressed in that earlier affidavit that the on-leash use and the proposed off-leash use are each likely to have a significant impact on the environment by reason of the potential impacts on each of the following:

(a) The Posidonia australis seagrass population in Pittwater;

(b) The seahorse species Hippocampus whitei (White’s seahorse).” ([7] of Dr Cummins’ affidavit of 2 April 2020).

318. In both her written and oral evidence, Dr Cummins maintained that this likely significant effect on the threatened population and threatened species would occur, notwithstanding that the boundaries of the dog off-leash area are clear of the Posidonia australis meadows, because off-leash dogs will not stay within the boundaries of the off-leash area. Dr Cummins referred to studies reporting low rates of compliance with dog access areas, days and times, which accorded with her own observations at Station Beach.

319. As I have earlier noted, Dr Lincoln-Smith did not expressly state that the activity of conducting the dog off-leash area trial would not be likely to significantly affect the environment generally, or the threatened Posidonia australis population in Pittwater or the threatened species of White’s seahorse particularly. Dr Lincoln-Smith’s opinions about the environmental effects of the dog off-leash activity were based on his understanding that the activity involved implementation and enforcement of all of the mitigation measures recommended in the REF and by the Department of Primary Industry (Fisheries), which was not the case.

320. Finally, the intensity of the impacts of the activity of conducting the dog off-leash area trial is also increased by the impacts being cumulatively significant, both in terms of aggregation of the direct and indirect impacts of the activity as well as in terms of the impacts of that activity being accumulated with the impacts of other existing uses, including propeller, mooring and anchoring scarring and shading. Ms Astles noted in her report that:

“The potential impacts of dogs and their owners in seagrasses and soft sediment intertidal habitats listed above would add to these existing impacts. Therefore, the overall cumulative impact on these intertidal habitats off Station Beach from multiple human activities needs to be taken into consideration… when assessing the effects of allowing dogs swimming on the beach” (p 8).

321. Unfortunately, neither Ms Astles nor the REF assessed this overall cumulative impact on these intertidal habitats off Station Beach.

322. In conclusion, on all of the evidence, the activity of the dog off-leash area trial approved by the Council is likely to significantly affect the environment. In these circumstances, the Council breached s 5.7(1) of the EPA Act by granting approval to the activity without having obtained or been furnished with, and having examined and considered, an EIS in respect of the activity.

The Council breached s 5.7 of the EPA Act with respect to the dog on-leash activity

323. I have earlier found that the Council breached s 5.5(1) of the EPA Act by failing, in its consideration and approval of the activity of allowing dogs on-leash at Station Beach, to examine and take account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. This finding also means that the Council breached the implied duty under s 5.7(1) of the EPA Act to consider whether that activity was likely to significantly affect the environment. The Council simply never addressed the environmental impact of that activity. The report to the Council meeting on 17 December 2019 did not consider the environmental impact of the activity or assess whether the activity was likely to significantly affect the environment generally or the threatened Posidonia australis seagrass community in Pittwater or the threatened species of White’s seahorse particularly. No other information assessing the environmental impact of the activity was put before the Council at the meeting and there is no evidence that the Council discussed that topic at the meeting.

324. The Council thereby breached the implied duty in s 5.7(1) by not considering whether the activity of allowing dogs on-leash at Station Beach, to which the Council granted approval on 17 December 2019, is likely to significantly affect the environment.

325. I also find that, as a matter of jurisdictional fact, the activity of allowing dogs on-leash at Station Beach, that was approved by the Council, is likely to significantly affect the environment.

326. First, the activity that was approved by the Council is in an area and on terms that are inconsistent with the mitigation measures recommended in the REF and by the Department of Primary Industries (Fisheries) for the dog off-leash area trial. The REF, adopting the recommendations of Ms Astles, and the Department of Primary Industries (Fisheries) recommended that the western boundary of the dog off-leash area be moved 3 metres landwards of the eastern extent of the seagrass beds and the southern boundary be moved northwards to be clear of the Posidonia australis seagrass meadow, that these boundaries be clearly signposted and delineated, that dog owners be warned not to allow their dogs to move outside of the boundaries of the dog off-leash area, and that compliance with the dog off-leash area be strictly enforced. These protective and mitigative measures relating to the boundaries of the dog off-leash area were seen to be fundamental to mitigating the risk of harm to the seagrasses and their soft sediment habitat off Station Beach.

327. The Council’s decision of 17 December 2019 approved the dog on-leash activity in an area that is inconsistent with these protective and mitigative measures. The on-leash area has no western boundary at all, so that there is no restriction on dogs and their owners trampling, damaging or disturbing seagrasses and their soft sediment habitat off Station Beach, and a southern boundary 110 metres south, so that the Posidonia australis seagrass meadow close to the shore is within the area and readily able to be accessed by dogs and their owners. Without limiting the boundaries of the area as recommended by Ms Astles, the REF and Department of Primary Industries (Fisheries), the adverse environmental impacts on individual seagrass plants and beds and their soft sediment habitat, and on the threatened Posidonia australis seagrass population in Pittwater and White’s seahorse, are very likely to occur.

328. The activity of allowing dogs on-leash at Station Beach approved by the Council also did not adopt the other mitigation measures recommended by Ms Astles, the REF and the Department of Primary Industries (Fisheries), including preparation of a management plan (incorporating a monitoring program); installing informative signage not only notifying of the dog on-leash access areas, days and times but also educating site visitors about the ecological significance and endangered status of seagrass in Pittwater and the threats to it; monitoring of water quality, seagrass and White’s seahorse to assess the impacts of the activity; increasing compliance patrols by Council officers to ensure compliance with permitted dog access areas, days and times; and stopping the activity if monitoring records environmental damage or there is noncompliance with dog access areas, days and times. None of these mitigation measures recommended for the dog off-leash activity were adopted for the dog on-leash activity. The Council approved the activity of allowing dog on-leash in the area and on the days and times described in the report to the Council meeting on 17 December 2019, but otherwise did so unconditionally.

329. Secondly, the effects of the activity as approved will include all of the direct and indirect impacts of the activity of conducting the dog off-leash area trial that have earlier been identified. Insofar as the boundaries of the dog on-leash area do not exclude dogs and their owners accessing and hence trampling, damaging or disturbing areas of seagrass and its soft sediment habitat, including the threatened Posidonia australis seagrass beds, the impacts of the dog on-leash activity may be greater than those of the dog off-leash activity.

330. The fact that the activity requires dogs to be on-leash, rather than off-leash, may not be a mitigating factor. There is no evidence that dogs on-leash will have less impact than dogs off-leash. Indeed, the impact might be greater because not only the dog but also the dog owner holding the dog on-leash will access the marine environment, doubling the impact of trampling, damaging or disturbing seagrass and its soft sediment habitat.

331. It is possible that the requirement that dogs be on-leash might limit the western extent to which dogs on-leash might move, as the water becomes deeper to the west and the dog owner holding the leash may not wish to enter deeper water, but this assumes compliance with the restrictions that dogs be on-leash. As both Ms Astles in her report and Dr Cummins in her evidence record, noncompliance with restrictions that dogs be on-leash is prevalent.

332. This has been the experience of allowing dogs on-leash at Station Beach so far. Dr Cummins observed in her inspections of Station Beach in January and March 2020 that compliance with the dog leashing requirement was “low”. Over the five survey days in January and March 2020, Dr Cummins observed that of the 299 dogs observed on the beach, 53% were off-leash. She estimated 40% of the 299 dogs walked or swam (depending on the tide) on-leash or off-leash in the seagrass meadows with their owners (at [69], [70] of Dr Cummins’ affidavit of 27 March 2020). Dr Cummins observed owners walking their dogs, both off-leash and on-leash, into the water when the tide allowed this. At other times, she observed dog owners leading their dogs, both off-leash and on-leash, onto the seagrass beds beyond the 3 metre buffer zone that had been proposed for the dog off-leash area trial (but not for the dog on-leash activity). She observed dogs, both off-leash and on-leash, walking and swimming within the seagrass beds ([66], [67] of Dr Cummins’ affidavit of 27 March 2020).

333. These observations of noncompliance were corroborated by Dr Cummins’ later surveys, over 4 days, in May and June 2020. Dr Cummins observed 338 dogs on the beach over 4 days in May and June 2020, of which 77% of dogs did not comply with the dog on-leash access area, day or time requirements. Specifically, 65% of dogs were off-leash on the beach and 9% were on-leash but outside the on-leash area access days and times. Of the 338 dogs she observed at Station Beach in May and June 2020, she estimated that 42% entered the water and 14% walked, ran or swam (depending on the tide) on-leash or off-leash within seagrass and surrounding soft sediment habitat, sometimes with their owners ([8], [9] of Dr Cummins affidavit of 4 August 2020).

323. Dr Cummins concluded, from these observations in January, March, May and June 2020, that:

“The results show that compliance to the rules of the Station Beach On-Leash Dog Area Concept Plan is a significant issue. Of the total number of dogs (638 dogs) that I observed on Station Beach over the 9 survey days, 77% (484 dogs) did not comply with the regulations of the Station Beach On-Leash Dog Area Concept Plan. Moreover, the number of off-leash dogs I observed on the beach each day has increased significantly since the January/March 2020 survey period. Similarly, when McGuire et al (2018) examined differences in space use of dogs along multiple beaches west of Melbourne, she found that regardless of the dog management regulations, unleashed dogs were more common that leashed dogs on beaches (overall, 23.8% were leashed of 2,698 dogs observed).” (at [15] of Dr Cummins’ affidavit of 4 August 2020).

335. In the absence of conditions of approval of the dog on-leash activity requiring strict implementation and enforcement of the on-leash requirement (the approval of the dog on-leash activity did not impose such conditions), the likelihood is that many dogs will be allowed to roam off-leash, with no limitation on their accessing seagrass beds and their soft sediment habitats anywhere off Station Beach.

336. Adverse effects on these seagrass beds and the soft sediment habitats are therefore to be expected by reason of the dog on-leash activity. Impacts observed by Dr Cummins of dog use of Station Beach in her surveys in January and March 2020 and again in May and June 2020, include numerous dog and human footprints on the sand at low tide, often as deep indentations in soft sediment and seagrass habitat, and dogs defecating on the sand, in the water and on seagrasses ([71]-[72] of Dr Cummins’ affidavit of 27 March 2020, and [9]-[10] of Dr Cummins’ affidavit of 4 August 2020).

337. The other direct and indirect impacts of dogs and humans trampling, damaging and disturbing individual seagrass plants and beds and their soft sediment habitats, which I have earlier described, are likely to occur.

338. Thirdly, these adverse effects of the activity of allowing dogs on-leash at Station Beach are “likely”, in the sense that there is a real chance or possibility of the effects occurring by reason of the activity.

339. Fourthly, these adverse effects are likely to be “significant”, in the sense that they are “important”, “notable”, “weighty” or “more than ordinary”, for the same reasons that the adverse effects of conducting the dog off-leash area trial are likely to significantly affect the environment. The reasons I gave for reaching that conclusion are equally applicable here. I note that Dr Cummins in her evidence found that the dog on-leash activity is likely to significantly affect the environment:

“For the reasons above, it is my opinion that dogs on-leash at Station Beach, with the ability of those dogs to access the sediment and seagrass areas off the beach, are highly likely to have a significant impact on many species, including P. australis, Zostera and White’s seahorse in those habitats immediately adjacent to Station Beach. By contrast, the sediment/seagrass habitats found in adjacent areas at similar depths that are not exposed to such activities will not suffer that impact. A key reasons for me coming to this opinion is that the on leash use will in my opinion be very likely to significantly alter the distribution (ie percentage cover and size of mostly P. australis and Zostera) and species composition (eg diversity and the presence/absence of non-native species such as Caulerpa taxifolia) of sediment/seagrass habitats and their ecological communities (including the White’s seahorse), in relation to sediments/seagrass habitats found in adjacent areas at similarly depths that are not exposed to such activity.

Given the widespread damage to the seagrass meadow off Station Beach from numerous human disturbances, and that seagrasses are important foundation species in shallow marine ecosystems and provide critical ecosystem services (including stabilising sediments, sequestering carbon and providing habitat and an energy source for a diverse fauna), and that recovery after disturbance is not assured and may take a long time to occur (if at all), the current use of Station Beach by dogs, in my opinion, should cease to avoid any further harm to the seagrass and the White’s seahorse. This would be consistent with conservation advice for the P. australis ecological community in Pittwater from the Commonwealth of Australia Department of the Environment and Energy (2018).” (at [73], [74] of Dr Cummins’ affidavit of 27 March 2020).

340. As earlier quoted, Dr Cummins also found, after applying the seven part test in s 221ZV of the Fisheries Management Act, that the dog on-leash activity is likely to significantly impact the threatened Posidonia australis seagrass population in Pittwater and the threatened species of White’s seahorse ([7] of Dr Cummins’ affidavit of 2 April 2020).

341. Dr Lincoln-Smith queried some of the statements of opinion of Dr Cummins, but he did not positively assert that the dog on-leash activity is not likely to significantly affect the environment. At most, he said that he had not seen information establishing that the dog on-leash activity at Station Beach has caused environmental impacts. For example, Dr Lincoln-Smith said:

“In my opinion, dogs on-leash currently have potential to affect seagrasses within the available designated for on-leash access, but at this stage there is no information available to demonstrate any impact” ([99] of Dr Lincoln-Smith’s affidavit of 12 June 2020).

342. In oral evidence, Dr Lincoln-Smith similarly said:

“I do accept that the field studies that Dr Cummins undertook this year show extensive use of Station Beach by dogs, many of which were off-leash. I think that is really useful information. However, there were no concurrent ecological studies, other than taking photographs of trampling. So we don’t actually know what impact that had to the seagrasses in terms of a quantitative assessment.” (T 21/10/20 p 101).

343. Of course, this lack of information on the impact of the current dog on-leash activity at Station Beach is an inevitable consequence of the Council not having obtained, examined and considered any environmental assessment of the impact of that activity on the environment before granting approval to the activity and the Council having approved the activity without imposing any conditions requiring monitoring of the impact of the activity on the environment. It is a case of “if you don’t look, you will not find”.

344. Dr Lincoln-Smith’s opinions about the potential impact of the dog on-leash activity in the future are also qualified by his belief that the mitigation measures proposed in the REF and by the Department of Primary Industries (Fisheries) will be implemented and enforced, see for example his conclusion at [103] of his affidavit of 12 June 2020). This belief is incorrect, as the Council approved the on-leash activity with no conditions requiring implementation and enforcement of these mitigation measures.

345. I find, therefore, as a jurisdictional fact, that the activity of allowing dogs on-leash at Station Beach, which was approved by the Council on 17 December 2019, is likely to significantly affect the environment generally and the threatened Posidonia australis seagrass community in Pittwater and the threatened species of White’s seahorse particularly. The Council breached s 5.7(1) of the EPA Act in granting approval to this activity without having obtained or been furnished with, and having examined and considered, an EIS in respect of the activity.

Conclusion and orders

346. I have found that the Council:

1. has not breached s 4.2 or s 4.3 of the EPA Act by making the decision on 27 August 2019 to conduct the dog off-leash area trial at Station Beach or the decision on 17 December 2019 to allow dogs on-leash at Station Beach;

2. has breached s 5.5(1) of the EPA Act, in considering and determining to approve on 17 December 2019 the activity of allowing dogs on-leash at Station Beach, by not examining and taking into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity;

3. has breached s 5.7(1) of the EPA Act, in granting approval on 27 August 2019 to the activity of conducting the dog off-leash area trial at Station Beach without having obtained or been furnished with, and having examined and considered, an EIS in respect of that activity;

4. has breached s 5.7(1) of the EPA Act by:

1. not determining whether the activity of allowing dogs on-leash at Station Beach is likely to significantly affect the environment; and

2. granting approval on 17 December 2019 to the activity of allowing dogs on-leash at Station Beach without having obtained or been furnished with, and having examined and considered, an EIS in respect of that activity.

347. Declarations to the effect of these findings in paragraphs (b), (c) and (d) should be made.

348. The Group also seeks orders quashing or setting aside the Council’s decisions of 27 August 2019 and 17 December 2019 as being invalid for jurisdictional error and being of no legal force or effect. The Council does not contest the Court making such orders if a breach of the EPA Act be found by the Court. Such orders are appropriate. The decisions were made in breach of s 5.5 and s 5.7 of the EPA Act and are invalid.

349. The Group seeks injunctive orders restraining the carrying out of each activity. Such injunctive orders are problematic. The use of Station Beach for either the dog off-leash activity or the dog on-leash activity is carried out primarily by the public, an undifferentiated and changing group of people. An injunction restraining the carrying out of either activity needs to be directed to some identifiable persons, but this is not possible where the persons carrying out the activity are simply members of the public.

350. At best, a prohibitory injunction might be directed to the Council restraining it from carrying out either activity, although this would only operate to restrain the Council from doing those acts, matters and things that the Council was intending to do, such as installing signs, bins, bag dispensers and marker buoys.

351. Alternatively, an injunction might be issued against the Council ordering it to take specified action to prevent the public carrying out either activity. The Council submitted that, if the Court is minded to make such a mandatory injunction against the Council, the parties should be given the opportunity to address the Court on the appropriateness of doing so and the terms of any mandatory injunction, as care needs to be taken in crafting a workable order. I agree.

352. In these circumstances, I find that it is appropriate to make declarations of breach of the EPA Act and orders setting aside the Council’s decisions of 27 August 2019 and 17 December 2019, but defer deciding whether to make any prohibitory or mandatory injunctions until the parties have had an opportunity to address the Court.

353. The Court:

1. Declares that Northern Beaches Council has breached s 5.5(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) in considering and determining to approve on 17 December 2019 the activity of allowing dogs on-leash at Station Beach, Palm Beach by not examining and taking into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity;

2. Declares that Northern Beaches Council has breached s 5.7(1) of the EPA Act in granting approval on 27 August 2019 to the activity of conducting the dog off-leash area trial at Station Beach, Palm Beach for a period of 12 months, without having obtained or been furnished with, and having examined and considered, an environmental impact statement in respect of that activity;

3. Declares that Northern Beaches Council has breached s 5.7(1) of the EPA Act by:

1. not determining whether the activity of allowing dogs on-leash at Station Beach, Palm Beach, is likely to significantly affect the environment;

2. granting approval on 17 December 2019 to the activity of allowing dogs on-leash at Station Beach, Palm Beach, without having obtained or been furnished with, and having examined and considered, an environmental impact statement in respect of that activity;

4. Declares invalid, and quashes, the decision of Northern Beaches Council made on 27 August 2019 to conduct a dog off-leash area trial at Station Beach, Palm Beach for 12 months;

5. Declares invalid, and quashes, the decision of Northern Beaches Council made on 17 December 2019 to allow dogs on-leash at Station Beach, Palm Beach;

6. Directs the parties to file and serve submissions on the orders that the parties contend the Court should make by way of prohibitory or mandatory injunctions (if any) in accordance with the following timetable:

1. The applicant to file and serve its submissions by 27 November 2020;

2. The respondent to file and serve its submissions by 4 December 2020;

3. The applicant to file and serve its submissions in reply by 11 December 2020;

7. Grants leave to each party to relist the matter in order to fix a date for a hearing if a party wishes to have a hearing on the issue of the injunctive orders the Court should make.

8. Orders the respondent to pay the applicant’s costs of the proceedings.

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Decision last updated: 20 November 2020