Palm Beach Protection Group Incorporated v Northern Beaches Council (No 2)

[2020] NSWLEC 181

Land and Environment Court

New South Wales

Medium Neutral Citation:

Palm Beach Protection Group Incorporated v Northern Beaches Council (No 2) [2020] NSWLEC 181

Hearing dates:

15 December 2020

Date of orders:

22 December 2020

Decision date:

22 December 2020

Jurisdiction:

Class 4

Before:

Preston CJ

Decision:

The Court orders:

(1)   The notice of motion filed on 4 December 2020 is dismissed.

Catchwords:

INJUNCTIVE ORDERS – breach of planning law – declarations of breach – whether mandatory injunctive orders also needed

COSTS – judicial review of council decisions – success on some but not all grounds of review – whether partial costs order justified

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 5.5, 5.7

Companion Animals Act 1998 s 14

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Category:

Procedural and other rulings

Parties:

Palm Beach Protection Group Incorporated (Applicant/Respondent on the Motion)
Northern Beaches Council (Respondent/Applicant on the Motion)

Representation:

Counsel:
Mr N Williams SC, with Mr C Ireland (Applicant/Respondent on the Motion)
Mr A Galasso SC, with Mr M Staunton (Respondent/Applicant on the Motion)

Solicitors:
Dentons (Applicant/Respondent on the Motion)
Wilshire Webb Staunton Beattie Lawyers (Respondent/Applicant on the Motion)

File Number(s):

2019/313791

Publication restriction:

Nil

Judgment

A further hearing is sought

1. On 20 November 2020, I gave judgment in these proceedings and made certain declaratory orders. I declared the Northern Beaches Council (the Council) had breached s 5.5(1) and s 5.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in making two decisions to allow dogs off-leash and on leash at Station Beach, Palm Beach, and declared invalid and quashed the decisions.

2. I deferred granting injunctive relief to give the parties an opportunity to make submissions on whether the Court should grant injunctive relief, and, if so, on what terms and to request a further hearing on the issue of injunctive relief.

3. The parties have filed written submissions and affidavit evidence in support of their submissions and requested a further hearing on the issue of the injunctive relief that should be granted, which was held on 15 December 2020.

4. The applicant, Palm Beach Protection Group Incorporated (the Group), contends that there still is a need for the Court to grant injunctive relief, notwithstanding that the Council has taken steps after judgment was delivered to install signage and to notify the public that dogs are prohibited on Station Beach. The Council contends that the action it has already taken is sufficient and that there is no need for the Court to order the Council to take any further action.

5. The Council has also filed the notice of motion seeking a variation of the costs order I made, so that instead of the Council paying all of the Group’s costs, it should pay 60% or such other proportion as the Court thinks fit of the Group’s costs.

The Council’s actions in response to the Court’s decision

6. To understand the difference between the parties as to the need for the Court to grant injunctive relief, it is helpful to explain what actions the Council has taken after judgment was delivered on 20 November 2020. The Council has taken steps to install signage at Station Beach advising the public that dogs are now prohibited on Station Beach, to publish notifications to that effect on the Council’s website and in e-newsletters, and to enforce the prohibitions on dogs on Station Beach.

7. Mr Hedge, the Manager, Parks Operations at the Council, gave affidavit evidence that he was directed on 24 November 2020 to arrange for the removal of the current signage regarding the on-leash dog area at Station Beach together with the associated dog bag dispensers from Station Beach. Mr Hedge was also directed to erect “Dogs Prohibited” signage in place of the existing signage saying that dogs were allowed on-leash. Mr Hedge said the Council removed existing signage and dog bag dispensers from Station Beach on 25 November 2020 and in their place erected two signs stating “Dogs Prohibited”, one sign located at the entrance to the southern end of Station Beach from Beach Road and another sign at the entrance to Station Beach from the northern end near the Boathouse Café. The sign at the northern end was relocated on 30 November 2020 to the bottom of the stairs to ensure the sign was in a more prominent position.

8. Mr Hedge said he arranged for the Station Beach specific signs to be manufactured and installed by 18 December 2020. These new signs will replace the recently erected “Dogs Prohibited” signs at the northern and southern entrances to the beach. He has also arranged for a third sign to be installed on a new pole midway along Station Beach between the signs at the northern and southern ends of the beach. The new signs will state at the top of the sign “Station Beach” and at the bottom of the sign “Dogs prohibited on beach” and in the middle between these writings will be a symbol of a dog inside a red circle with a red line crossing the dog.

9. As an interim measure, until the new signs are manufactured and installed, Mr Hedge said he had arranged for temporary corflute signs to be installed in the location of the “Dogs Prohibited” signs at the northern and southern ends of Station Beach. These temporary signs state: “Station Beach. Changed Conditions. Dogs are not permitted on the beach at any time”. In the middle of the signs is the symbol of a dog inside a red circle with a red line crossing the dog. These temporary signs were installed on 4 December 2020.

10. In a later affidavit filed at the hearing on 15 December 2020, Mr Hedge advised that the new signs had been able to be installed earlier than 18 December 2020. The resultant signage at Station Beach is now as follows:

1. at the northern and southern ends of Station Beach are poles with the new sign at the top and the temporary corflute sign below the new sign; and

2. in the middle of Station Beach is a pole with the new sign, but no temporary corflute sign.

11. Ms Olivia Greentree, the Manager, Communications at the Council, gave affidavit evidence describing the actions the Council has taken to inform the public of the changed conditions for dog use on Station Beach.

12. On 24 November 2020, she prepared and distributed a media release regarding the Court’s judgment. A copy of the media release was published on the Council’s website on 24 November 2020. The media release was entitled “Council responds to Court decision on off-leash dog trial”. This is partly correct, as the Court’s decision did concern the Council’s decision to conduct a dog off-leash trial at Station Beach, but it is also incomplete as the Court’s decision also concerns the Council’s decision to allow dogs on-leash at Station Beach. The heading of the media release foreshadows the content of the media release as the Council’s response to the Court’s decision, which it is, rather than seeking to describe the result and reasons of the Court’s decision.

13. The text of the media release stated that the Council was reviewing the judgment and its implications. This is of course appropriate if the Council is considering whether or not it wishes to appeal the Court’s decision. However, it does convey to the public that the decision is not one which the Council has determined to implement.

14. The media release stated:

“Northern Beaches Council is reviewing the judgment of the Land and Environment Court relating to Station Beach dog areas while continuing to explore the feasibility of unleashed dog areas on parts of North Palm Beach and the southern-most end of Mona Vale Beach.

The Court’s decision last Friday means that the off-leash trial and current on-leash area may not continue on Station Beach at this stage. The Court found that development consent is not required. Council is further considering the need for an Environmental Impact Statement (EIS).

As a result of the judgement, Council will remove the signage allowing the current on-leash arrangements at Station Beach and replace this with ‘dogs prohibited’ signage.

Mayor Michael Regan said Council resolved at its meeting in July to prepare a report on the feasibility of off-leash arrangements at sections of North Palm Beach and Mona Vale Beach and this work is proceeding.

‘Station Beach has been explored as a site for an off-leash dog trial over many years and we believed we had followed a robust and appropriate process to ensure it could proceed in an environmentally safe way.’

‘Council is continuing to review the judgment and its implications.’

‘In the meantime I look forward to considering the feasibility study at North Palm Beach and the southern-most end of Mona Vale Beach.’”

15. Ms Greentree said she updated information on the Council’s website regarding Station Beach in the “dog parks” section under the “Things to do” tab on the Council’s website to state: “In response to the November 2020 judgment of the Land and Environment Court dogs are now prohibited on Station Beach at all times”. The introductory statement in the “dog parks” section was not updated, however, and still refers to “one on-leash beach” for dogs, which is Station Beach.

16. Ms Greentree said she also updated the Station Beach section in the “beaches” information section of the Council’s website, to state, in relation to “Station Beach (south)” that: “Dogs are not permitted at Station Beach (north) and please remember to keep your dog on-leash in the park and surrounding areas”. The reference to “Station Beach (north)” in this announcement is in error and will need to be corrected.

17. Ms Greentree said she updated the pages on the “Station Beach Dog Off-leash Area – Proposed Trial” in the “Community engagement projects” section in “Have your say” section of the Council’s website to state:

“In response to the November 2020 judgment of the NSW Land and Environment Court dogs are now prohibited from Station Beach at all times.

Read Council’s media release, Council responds to Court decision on off-leash dog trial…”

18. The reference to the media release is the same media release stating that the Council is reviewing the Court’s judgment and its implications.

19. Ms Greentree said she has also published on 3 December 2020 a short article in the “Latest News” section on the homepage of the Council’s website. The article repeated information given elsewhere on the Council’s website, advising that:

“Following a judgment of the Land and Environment Court dogs are no longer permitted at any time on Station Beach in Palm Beach.

For more information on the court decision please read the media release.’

20. The media release referred to is the same media release.

21. Ms Greentree said news of the Court’s decision has also been published by the Council in the Northern Beaches News e-Newsletter sent to Council ratepayers on 27 November 2020. Under the heading of “Latest News” was a news item “No dogs on Station Beach” and the statement that “Following a recent court decision, dogs are no longer permitted on or off-leash on Station Beach, Palm Beach”.

22. Ms Greentree said she has arranged for a further story regarding the prohibition of dogs on Station Beach to be included in the Northern Beaches News e-Newsletter on 4 December 2020.

23. Ms Greentree noted that two external media publications, Pittwater Life Magazine and the Daily Telegraph, have published articles on the Court’s decision.

24. Mr Crossan, the Manager, Rangers at the Council, gave affidavit evidence that a week after the Court delivered judgment on 27 November 2020, he advised the Ranger Coordinator that Station Beach was now a prohibited area for dogs and that new signage advising that dogs had been prohibited had been erected, and enforcement was now required. A patrol schedule was formulated. Initially, the rangers should use a warning and education approach but from 5 December 2020 the rangers should issue penalty infringement notices for contravention of the signage that dogs are prohibited on Station Beach.

The Group seeks injunctive orders

25. The Group submits that these actions taken by the Council are insufficient to publicise the Court’s decision, the prohibition on dogs on Station Beach, and the legal consequences for contravention of the prohibition. The Group submits that different and additional signage needs to be erected.

26. Starting with the three signs at the northern and southern ends and midway along the beach, the Group submits that the signs should use different language not only to that of the firstly erected “Dogs Prohibited” signs but also to that of the newly erected Station Beach specific signs. The signs need not only to state that dogs are prohibited in writing and by symbol, but also need to advise the public that contravention of the prohibition is an offence contrary to s 14(2) of the Companion Animals Act 1998 and is punishable by a penalty of $1,100 (10 penalty units).

27. The Group submits that the Council should also erect a public information sign at the northern end of Station Beach near the Boathouse Café explaining that “both on-leash and off-leash dogs are prohibited on Station Beach by reason of the presence of the beds of the threatened Posidonia australis seagrass adjacent to the shoreline and showing a map of the seagrass beds and advising that:

1. a contravention of the prohibition is an offence contrary to s 14(2) of the Companion Animals Act 1998 punishable by a penalty of $1,100 (10 penalty units); and

2. providing the telephone number and email address for Council’s rangers for the public to contact in the event of noncompliance.”

28. The Group submits that such public information signage would be in aid of ensuring compliance with the signs that have been erected prohibiting dogs, be consistent with the reasons and decision of the Court, and be of assistance to the general public. The Group submits that it is important for the signage to explain the penalties for breach and provide a telephone number to allow members of the public to contact Council rangers to ensure that breaches can be reported and appropriately actioned by the Council. The likely significant impact of dogs on the seagrass beds and the Council’s failure to comply with Part 5 of the EPA Act was a principal ground of the Court’s decision.

29. The Group submits that the Council should also be ordered to improve the notifications and information that the Council has already published on the Council’s website. The Group submits that the Council should publish on the first page of its website notification that dogs both on-leash and off-leash, are not permitted on Station Beach by reason of the presence of beds of the threatened Posidonia australis seagrass adjacent to the shoreline. The Group noted that the notifications and information currently published on the Council’s website are equivocal. There is no link on the Council’s website to the Court’s judgment. The media release and information on the Council’s website states that the judgment is being “reviewed” and the Council is “further considering” the need for an EIS for the off-leash or on-leash activities the subject of the Court’s judgment. There is no explanation in the information provided on the Council’s website of the significance of the seagrasses in the decision or orders of the Court.

30. The Group submits that, in order to publicise the orders of the Court and the prohibition on dogs on Station Beach, the Council should be ordered to publish a notice in the Manly Daily, the local newspaper circulating in the area, “advising the public that on-leash and off-leash dogs are prohibited on Station Beach by reason of the presence of the beds of the threatened Posidonia australis adjacent to the shoreline and showing a map of these seagrass beds and advising that the Council was required to publish the notice by reason of the judgment in these proceedings”.

31. The Group submits that the brief articles published in the Council’s e-Newsletter are insufficient, both in terms of their content as well as their distribution. The Group submits the publication of a map of the seagrass beds and an explanation of the importance of the seagrass and the likely significant adverse impact that dogs can have on the seagrass are of importance.

The Council opposes injunctive orders

32. The Council contests the need for the Court to grant injunctive relief. The Council noted that at the hearing it had submitted that, if the Court declared the Council’s decisions to be invalid and the Council to have breached the EPA Act, the Council would respect and take action to give effect to the Court’s judgment and orders. The Council submitted that it has done so. The Council has changed the signage at Station Beach, first by erecting the “Dogs Prohibited” signs then the temporary corflute signs and finally the Station Beach specific signs notifying the public that dogs are prohibited on Station Beach. The Council has now erected three signs at the northern and southern ends and midway along Station Beach.

33. The Council submits that the content of the signs already installed, both the temporary corflute sign and the new Station Beach specific sign, is adequate to inform the public that dogs are prohibited on Station Beach. The Council submits that it is not necessary to add the information suggested by the Group advising that contravention of the prohibition is an offence against s 14(2) of the Companion Animals Act 1998. However the Council did accept that it could, if the Court considered it to be desirable, add a note to the sign identifying the legislative source of the prohibition on dogs being on Station Beach, being s 14(2) of the Companion Animals Act 1998. This is commonly done by the Council with other signage in public places. The Council submits that it is not necessary for the Court to order the Council to do so as it will act on the Court’s findings.

34. The Council submits that the public information suggested by the Group is unnecessary and goes beyond the scope of the proceedings. On the Court’s findings, dogs are not prohibited on Station Beach by reason of the presence of the seagrass, but rather by reason of the decision of the former Warringah Council in 1997 prohibiting dogs on all beaches, including Station Beach, which decision the Court found was not validly revoked or varied. An order requiring such signage goes beyond and misrepresents the findings of the Court.

35. The Council submits that the claimed order for the Council to publish on its website notification that dogs are not permitted on Station Beach by reason of the presence of the threatened Posidonia australis seagrass adjacent to the shoreline also goes beyond the scope of the proceedings and the findings of the Court. The reason for the dogs being prohibited on the beach is the order under the Companion Animals Act 1998, not the presence of seagrass beds adjacent to the shoreline.

36. The Council submits that the claimed order for notice to be published in the Manly Daily is also beyond the scope of the proceedings and the findings of the Court. It is disproportionate to the circumstances of the case.

37. The Council further submits in response to the claimed orders for notification on the Council’s website and in the Manly Daily that the actions the Council has already taken to inform the public about the Court’s decision and the prohibition of dogs on Station Beach are sufficient.

38. The Council submits that the injunctive orders claimed by the Group are of no utility and are unnecessary. The actions already taken by the Council to erect signage and publish information about the prohibition of dogs on Station Beach are sufficient without there being a need to erect any further signage or erect any further notification. The Court’s judgment is a public document which is sufficient to convey the findings of the Court.

Injunctive orders not necessary

39. I find that it will not be necessary to make the injunctive orders sought by the Group, for three reasons. First, the Council has already taken steps to install appropriate signage and notify the public that dogs are prohibited on Station Beach. Such signage and notification reinstates the position that existed before the Council’s decisions of August and December 2019, which revoked or varied the prohibition on dogs on all beaches, including Station Beach.

40. Secondly, insofar as the signage and notification could beneficially be improved, the Council has indicated it would do so without the need for the Court to order it to do so. The signage at Station Beach should be amended to notify the public that contravention of the prohibition of dogs on Station Beach is an offence against s 14(2) of the Companion Animals Act 1998 with a maximum penalty of 10 penalty units or $1,100. The wording used to convey this information can be brief, in accordance with the practice of the Council for other signage in public places.

41. The notifications and information on the Council’s website should be amended in the following ways:

1. A new media release should be released after the appeal period has expired and if the Council has elected not to appeal the Court’s decision summarising, in the briefest of terms, the Court’s decision and reasons and provide a link to the Court’s judgment.

2. The cross references to the media release of 24 November 2020 in various announcements and pages of the Council’s website should be amended to refer to the new media release as this will ensure the public are referred to information on the Court’s decision rather than the Council’s response to the Court’s decision.

3. The pages on “dog parks” on the Council’s website should be amended to no longer refer to there being an on-leash dog beach (which was Station Beach) or to Station Beach at all. The current pages still convey the impression that Station Beach is a dog park, by its inclusion in the dog park section.

4. In the “beaches” pages, the misreference to “Station Beach (north)” in the section on “Station Beach (south)” should be corrected, so as to clearly state that dogs are not permitted on Station Beach (south).

42. If these steps are taken by the Council I consider that the signage and the notifications and information on the Council’s website will accurately and informatively notify the public about the prohibition of dogs on Station Beach, the legal consequences for contravention of the prohibition, and the Court’s decision and order.

43. Thirdly, I consider the additional signage and notification as sought by the Group will not be necessary if the signage and the notifications and information on the Council’s website are amended as I have indicated and may be beyond what the Court can order to remedy and restrain the breaches of the EPA Act found by the Court. These breaches concern failures of the Council to consider as required by ss 5.5 and 5.7 of the EPA Act, the environmental impact of the activities of conducting a dog off-leash area trial or allowing dogs on-leash on Station Beach, and to approve those activities without undertaking the required environmental impact assessment. Remedying and restraining these breaches of ss 5.5 and 5.7 of the EPA Act would not involve erecting a public information sign advising of the presence, location and ecological importance of the threatened Posidonia australis seagrass adjacent to the shoreline at Station Beach or publishing notification on the Council’s website or a notice in the local newspaper to that effect. Such information may well be useful information to convey to the public and users of Station Beach, but notification of this information does not remedy or restrain the breaches of the EPA Act committed by the Council.

Whether the costs order should be varied

44. The Council seeks for the Court to vary the costs order it made at the time of giving judgment that the Council pay the Group’s costs. The Council submits that it should only pay a proportion of the Group’s costs, which it proposes should be 60%, to reflect the fact that the Group succeeded on some but not all of its grounds of challenge to the Council’s decision. The Council notes that the Group did not succeed on any of its grounds that the Council breached Part 4 of the EPA Act, in that the developments of allowing dogs off-leash or dogs on-leash at Station Beach were prohibited, and in breach of s 4.3 of the EPA Act, or needed development consent but no consent was obtained, in breach of s 4.2 of the EPA Act. The Group succeeded only on the grounds that the Council breached Part 5 of the EPA Act, by failing to comply with the requirements for environmental impact assessment in s 5.5 and s 5.7 of the EPA Act.

45. In relation to the grounds of breach of Part 4 of the EPA Act, the Council noted that the Group raised shortly before and at the hearing new grounds, and counter-pleaded in response to the Council’s defence. The Court rejected all of these grounds and counter-pleadings.

46. The Council submitted that the grounds of breach of Part 4 of the EPA Act were separate from the grounds of breach of Part 5 of the EPA Act, so that it was appropriate to differentiate between the costs of the issues on which the Group was successful (the Part 5 grounds) and the costs of the issues on which the Group was unsuccessful (the Part 4 grounds): see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38].

47. The Group contested that there is any basis for severing the issues in the case and awarding costs only on the issues on which the Group was successful.

48. The Group submitted:

“a. An unsuccessful party will not be able to avoid liability for costs merely because it nearly succeeded and acted reasonably in commencing or defending proceedings: Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J (Dal Pont, 2nd Ed, Law of Costs, [7.8]).

b. The general rule is that the costs that follow the event include the costs of issues on which the ultimately successful party has failed: Best Care Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1673 at [24], Stevenson J.

c. In some rare cases partial costs orders may be justified where there has been success by litigants on different issues. The principles are discussed by Ward J (as her Honour then was) at [161]-[164] in In the Matter of Cheal Industries Pty Ltd – Fitzpatrick v Cheal [2012] NSWSC 932.

d. The issue that is the subject of the partial costs order, or carve-out from the overall costs order in favour of the other party, must be ‘clearly dominant or separable’: [163]. The principles are also set out in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 by the Court at [38]. The principle is that ‘where there are multiple issues in a case, the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed’.

e. The Respondent has not identified any ‘dominant or separable’ issue here that justifies the Respondent not securing its costs for the whole proceedings on the usual basis.

f. The partial costs order the Respondent seeks would set an undesirable precedent, encouraging unsuccessful parties to seek to disturb the usual costs order, post hearing and lead to unnecessary delays in the final resolution of such matters.”

49. I do not consider the Council has made out a case for departing from the general principle that a successful party should be awarded its whole costs of the proceedings, including the costs of an issue on which it has failed. I adopt the Group’s submissions on the principles for making a partial costs order and their application to the facts in this case.

50. The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost is when that issue is clearly dominant or separable.

51. In this case, I do not consider that the grounds relating to breach of Part 4 of the EPA Act were clearly dominant or separable to the grounds relating to breach of Part 5 of the EPA Act. Of course, the two parts of the EPA Act are separate legislative provisions, but there is a relationship between the parts in the circumstances of this case. Part 5 of the EPA Act only applies where Part 4 does not apply. This is evidenced in the definition of “activity” in s 5.1 of the EPA Act.

52. Hence, the Group could only establish breach of the provisions of Part 5 of the EPA Act once it failed to establish the application of the provisions of Part 4 of the EPA Act. The failure of the Group to establish the grounds of breach of Part 4 of the EPA Act therefore laid the foundation for the success of the Group in establishing the grounds of breach of Part 5 of the EPA Act.

53. There is another way in which the grounds of breach of Part 4 and Part 5 can be considered not to be separable. The central case of the Group was a judicial review challenge to two decisions of the Council. The grounds on which the Group challenged the decisions varied, some relating to Part 4 and some relating to Part 5, but the focus of the challenges remained the decisions. The fact that the Group succeeded on some grounds of review to the decisions but not others does not cause the different grounds of review to become separable. As the Group submitted, rarely does a judicial review challenge succeed on all grounds; far more common is for the challenge to succeed on some grounds of review but not others. The grounds of review are different but this alone does not make any ground clearly dominant or separable.

54. For these reasons, I reject the Council’s application to vary the costs order so as to award the Group only 60% of its costs. The Council’s motion should be dismissed.

The costs of this hearing

55. The question that now arises is the costs order that should be made regarding this hearing of the need for interlocutory relief and variation of the costs order. In result, each party has had some success. The Council has been successful in resisting the Group’s application that the Court should make injunctive orders. The Group has been successful in resisting the Council’s application for variation of the costs order. On balance, I consider it is fair and reasonable in the circumstances not to make any further costs order regarding the hearing of these competing applications. Each party should bear their own costs of this hearing.

Order

56. The only order the Court needs to make is:

1. The notice of motion filed on 4 December 2020 is dismissed.

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Decision last updated: 22 December 2020