Dogs on beach – Environmental impact assessment duties of councils examined in recent case – JD Supra

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A recent case challenging a council’s decision to permit dogs on a beach takes a close look at a council’s duty to assess the environmental impact of activities it approves.
In Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156, the Chief Judge of the Land and Environment Court, Preston CJ, found that a council did not properly consider the environmental impacts when deciding to allow dogs on a beach which contained threatened seagrass and seahorse habitat.
A council has two separate duties, imposed under Part 5 of the Environmental Planning and Assessment Act (EP&A Act), when considering the environmental impacts of an activity it authorises or approves.
Firstly, a council must examine and take in account, to the fullest extent possible, all matters affecting or likely to affect the environment by reason of that activity in the attainment of the objects of the EP&A Act relating to the protection of the environment (under s 5.5).
Secondly, a council must not carry out or grant approval to an activity that is likely to significantly affect the environment unless it is in possession of and has examined and considered an Environmental Impact Statement (EIS) that has been prepared in the prescribed manner (under s 5.7).
An “activity” is defined under Part 5 by adopting the definition of development under the EP&A Act (excluding development for which consent is required under Part 4).
In Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156, the Court reaffirmed the duty imposed on councils to consider the environmental impacts of every activity to which Part 5 applies.
Preston CJ held that two decisions made by the council under the Companion Animals Act 1997 to allow dogs on the beach were invalid for breaches of sections 5.5 & 5.7 under Part 5 of the EP&A Act. The Court declared that council:
The Court heard expert aquatic ecology evidence that dog access (irrespective of whether the dogs were on-leash or off-leash) to proposed areas of Station Beach would be likely to significantly affect the threatened Posidonia australis seagrass population and White’s seahorse and its habitat. The evidence indicated that when dogs access the beach, their footprints create small holes in the seabed surface interfering with seagrass seed distribution and germination, the dogs spread invasive species and the dogs and their owners trample on invertebrate habitat and compact sediment thereby significantly affecting the environment.
Although the level of environmental impact assessment will vary depending on the activity, the Court found that every activity must be subject to environmental impact assessment. Importantly, where more than one activity is considered, environmental impact assessment of one activity does not suffice as environmental impact assessment of another activity.
In forming his decision, Chief Justice Preston critically analysed the two overarching duties under Part 5 of the EP&A Act.
Regarding the duty to consider the environmental impacts of an activity under s 5.5 of the EP&A Act, his Honour held that:
In relation to the duty to obtain and consider an EIS for an activity under s 5.7 of the EP&A Act, the Court confirmed:
The duty on the determining authority (or council in this case) is mandatory and gives rise to a jurisdictional fact that the council must determine for itself on the evidence whether the activity is likely to significantly affect the environment. In doing so, the council must be furnished with the relevant information regarding the activity so that it may make a fully informed and well-considered decision, and, ensure that the relevant information will be made available to the public in conformance with the objects of the EP&A Act.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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