21 May 2021

Court bares its teeth over breach of environmental law

A recent Court decision contains important findings for councils assessing applications pursuant to Part 5 of the Environmental Planning & Assessment Act 1979.

In Palm Beach Protection Group Inc v Northern Beaches Council [2020] NSWLEC 156, the Court found that Council failed to examine and take into account to the fullest extent possible, all environmental impacts when deciding to allow dogs on Station Beach, which was also a public reserve.

The Court held that the Council had breached two sections of the Act; namely:

  • section 5.5(1) by not examining and taking into account to the fullest extent possible all matters likely to affect the environment by virtue of the activity

  • its implied duty under section 5.7 to consider whether the activity was likely to have a significant effect on the environment.

Background

On 27 August 2019 Council passed a resolution to conduct a 12-month dog off-leash trial at Station Beach. The boundaries of the off-leash area, as recommended by a Review of Environmental Factors (REF), would be clearly signposted to mitigate the environmental impacts on nearby threatened species of seagrass and seahorse.

The Palm Beach Protection Group opposed the resolution and commenced judicial review proceedings on 8 October.

On 17 December Council passed another resolution to only allow dogs on-leash at Station Beach. In this case, no western boundary was defined, thus allowing dogs on-leash to enter the water and nearby seagrass.

Both decisions were the subject of judicial reviews.

The Court’s findings

The Court ruled that Council breached s 5.5(1) of the Act by failing to examine and take into account, to the fullest extent possible, all matters affecting or likely to affect the environment by allowing dog on-leash activities.

Section 5.5(1) imposes a duty on Council to determine whether an activity is likely to significantly affect the environment. This duty is imperative.

Council must first ask, is the activity likely to significantly affect the environment?

If the answer is yes, Council is under a strict duty to obtain and examine an Environmental Impact Statement before approving or carrying out the activity (s 5.7 of the Act). In doing so, Council must take into account all factors in clause 228 of the Environmental Planning and Assessment Regulation 2000. The Council in this case, did not obtain or examine an Environmental Impact Statement in respect of either activity.

The duty imposed by s 5.5(1) applies to every activity; an environmental assessment of one does not discharge the duty to consider the environmental impact of another. Rather, every activity requires a ‘particular and precise evaluation’ of its environmental impact.

The Second Decision did not consider any environmental impacts of dog on-leash activities and was inconsistent with the protective measures recommended in the REF.

Ultimately, the Court found that both the on-leash and off-leash activities, when properly assessed, were likely to significantly affect the environment. The activities were:

  • “likely” in the sense that there is a real chance or possibility of the effects occurring by reason of the activity, and;

  • 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 Court agreed with the incorporated association that there was likely to be a significant effect from the off-leash activities because:

  • the Council failed to adopt the REF’s recommendations for implementation and enforcement of all the mitigation measures. These measures were a condition of the finding of no likely significant effect. Accordingly, the Council did not find that conducting the approved activity was not likely to significantly affect the environment; and

  • as a jurisdictional fact, the approved activity was likely to significantly affect the environment when properly assessed.

The REF was an assessment of the environmental impact of off-leash activity only, and did not comply with the requirements of s 5.5(1) of the Act and cl 228 of the Regulation to assess the likely environmental impact of on-leash activity.

The REF for the off-leash area trial recommended several preventative and mitigative measures. The Council’s on-leash resolution imposed no requirements to implement or enforce any of these measures. No western boundary was fixed, so there was no restriction on dogs and their owners entering and harming the seagrass beds, and the southern boundary was moved, meaning dogs and owners could enter and harm the threatened seagrass.

Without limiting the boundaries of the area in accordance with the REF recommendations, adverse environmental impacts were likely.

Likewise, Council did not adopt other recommended mitigation measures including a management plan incorporating a monitoring program. The Court noted that in the absence of strict implementation and enforcement, the likelihood that many dogs would be allowed to roam off-leash was high.

Further, the Court said, “to approve the activity of allowing dogs on-leash in an area and on terms that are inconsistent with the REF, evidences a failure to take into account all matters affecting or likely to affect the environment by reason of the activity”.

The Court therefore declared the Council’s First Decision and Second Decision invalid.

This decision highlights the complexity surrounding the application of Part 5 of the Act and reaffirms the strict duty imposed on Councils to conduct a proper and precise examination of the likely environmental impacts of any activity carried out under this Part of the Act.

If you have questions or require further information, please do not hesitate to contact our team at Bartier Perry.

Authors: Dennis Loether & Gabrielle Ellis