Dog on- and off-leash areas and the EPA Act

A recent decision of the NSW Land and Environment Court demonstrates that NSW councils need to carefully consider the provisions of both Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act) when making decisions about the creation of on- and off-leash areas for dogs under the Companion Animals Act 1998.

In Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 Preston CJ has provided a detailed and informative analysis of the way the two Acts interact. This article has been prepared to provide a brief summary of the decision, with a focus on the application of the EPA Act in relation to the establishment of dog on and off-leash areas in public reserves.

Background 

The former Pittwater Council had given an order pursuant to the Companion Animals Act that all dogs were prohibited on “all beaches” in its area. This position was revisited in 2019 when the Northern Beaches Council twice resolved to allow the public to use Station Beach with their dogs. The first decision concerned the use of part of the beach as an off-leash area on a trial basis for 12 months. The other decision, made some months later, concerned the use of part of the beach as a dog on-leash area.

Station Beach, on the Pittwater side of Palm Beach, and the adjacent Governor Phillip Park, comprise a reserve for public recreation and have been so for nearly a century. The local council, now Northern Beaches Council, had the care, control and management of the reserve.

The Palm Beach Protection Group Inc. challenged the Council’s decisions on two grounds:

  1. The Council breached s 4.2 or s 4.3 of the EPA Act when authorising the carrying out of development, being the use of the beach by the public with their dogs, as the use was either prohibited development or development permitted only with development consent, which had not been obtained (the unlawful development ground); and
  2. The use of the beach authorised by the Council’s decisions was an ‘activity’ within the meaning of Part 5 of the Act, that each of the Council’s decisions was an approval of that activity, and the Council, as the determining authority, had not considered the environmental impact of the activity before granting that approval (the inadequate EIA ground).

The Group also contended that the Council was required by s 5.7 of the EPA Act to consider an environmental impact statement prior to granting the approval as the activity was ‘likely to significantly affect the environment’.

The unlawful development ground

The crux of the Group’s complaint on these grounds was that the use of the reserve by people with their dogs was a separate and distinct use of the beach to that by people without dogs, and was a use that was either prohibited, or that required consent under the applicable environmental planning instruments.

The Council contended, amongst other things, that:

  • the use of land authorised by its decisions was use for the purpose of a “recreation area”, a land-use which was permitted with consent under the relevant land use zones, but which could be carried out without consent on a public reserve under the care and control of the Council under cl. 65(3) of the Infrastructure SEPP; and
  • alternatively, development consent was not required because the use of the land was a “continuing use” authorised by s 4.68(1) of the EPA Act.

The Court found that the use of Station Breach enabled by each Council decision was properly characterised as being development for the purpose of a recreation area.[1] His Honour observed that the detailed activities carried out before may be different to those carried out after the Council’s decisions, in that people used the beach and adjacent waters without their dogs before, but with their dogs after, the Council’s decisions, but that this did not constitute a change in the purpose of the use. The characterisation of the purpose of the use is to be done at the appropriate level of generality, sufficient to cover the individual activities, but not in terms of the detailed activities.[2]

The Court went on to find that development consent was not required because the use of the reserve for the purpose of a recreation area had lawfully commenced almost a century earlier, long before the introduction of any requirement to obtain development consent for that use under relevant planning instruments. In so doing, the Court held that the Council’s decision did not involve an enlargement, expansion or intensification of the use of the land for the purpose of recreation area, despite the Group adducing evidence of an increased number of dogs on the reserve following the Council’s decision. The Court reasoned that the use of the reserve, both before and after the Council’s decisions, was still for the purpose of public recreation and that, while the nature of the use may have changed, what mattered was whether the number of people using the beach and adjacent waters had increased or the area of the beach and adjacent waters being used had increased. The Court found that this was not established by the evidence.

The inadequate EIA ground

The Group also contended that each of the Council’s decisions constituted an approval of an activity, being the use of land, under Part 5 of the EPA Act. In doing so, the Group argued that Part 5 applied so as to impose a twofold duty on the Council. First, the Council had a duty under s.5.5 to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity”. Secondly, where the activity was likely to significantly affect the environment, before granting any approval, it had a duty under s.5.7 to examine and consider an environmental impact statement in respect of the activity. The Group presented expert evidence to show that the use of Station Beach by dogs was likely to significantly affect the environment because of its likely impact on the threatened seagrass population Posidonia australis and the threatened seahorse species Hippocampus whitei (White’s Seahorse).

The Council contested that its decisions constituted “an approval” of an “activity” under Part 5, submitting that the decisions merely involved exercises of power under the Companion Animals Act, being a revocation or variation of the former Pittwater Council’s order under that Act to prohibit dogs on all beaches. In the alternative, the Council contended that it had complied with Part 5 because:

  • it had carried out an environmental impact assessment of the dog off-leash area trial, in the form of a “Review of Environmental Factors” (REF);
  • it had considered the REF to the fullest extent possible, evident by its adoption of certain recommended mitigation measures;
  • it had concluded that the dog off-leash area trial was not an activity likely to significantly affect the environment, so that an EIS was not required; and
  • there was no additional requirement to consider the impacts on the environment in relation to the second decision concerning the dog on-leash area, as the Council’s assessment in relation to the off-leash area was adequate and its determination that that activity was not likely to significantly affect the environment was reasonable.

The Court, however, held that Part 5 of the EPA Act did apply to the Council’s decisions.[3]  It found that the Council had breached ss.5.5 and 5.7 in its consideration and approval of the activity of allowing dogs to use the reserve on-leash and had breached s.5.7 by granting approval to the use of the reserve by dogs off-leash without having obtained, examined and considered an EIS in respect of the activity.

The Court gave extensive reasons. Its key findings were that:

  • with respect to the on-leash area, the Council had not considered the environmental impacts of the activity. In this regard the Court observed that the report to the Council meeting approving the activity did not undertake any examination of any matters affecting or likely to affect the environment by reason of the activity. Although the report referred to the earlier approval of the off-leash activity, the Court found those references did not import the assessment of the environmental impact of that activity;[4]
  • the duty under s 5.5(1) to consider the environmental impact of an activity applies to each and every activity that a determining authority considers. An environmental assessment under 5.5(1) of one activity does not suffice to discharge the duty under s 5.5(1) to consider the environmental impact of another activity.[5] The activities or conducting a dog off-leash trial and allowing dogs on-leash were different.[6] The Council could therefore not rely on the REF for the dog off-leash trial to discharge its obligation to consider the environmental impact of the approval of the dog on-leash area; and
  • in respect of the breach of s.5.7:
    • the finding in the REF that the off-leash trial was not likely to have a significant effect on the environment was not adopted by the Council, so that the Council did not in fact find that the dog off-leash area trial was not likely to significantly affect the environment;[7]
    • the finding in the REF that the proposed trial was unlikely to have any significant or long-term negative environment impact was conditional upon all of the mitigation measures outlined with the REF being implemented. The Council had not implemented all of those measures;[8]
    • as a matter of jurisdictional fact, the activity of allowing both dogs on and off-leash at Station Beach approved by the Council was likely to significantly affect the environment by reason of a range of direct and indirect impacts on the environmentally sensitive seagrasses and White’s seahorse; and[9]
    • consequently, the Council had granted an approval to the activities without having obtained and considered an EIS in respect of that activity when it was required to have done so.[10]

Implications

There are several important lessons to be learned from this case. First and foremost, a council making decisions with respect to dog on- and off-leash areas under the Companion Animals Act should approach its task mindful that those decisions are subject to the EPA Act.  While it is likely that in most instances dog on- and off-leash areas will be within a public reserve for public recreation purposes for which continuing lawful use protections under the EPA apply, a council will nevertheless need to consider the environmental impacts of creating or varying dog on or off-leash areas of the activity under Part 5.

The Court’s decision will also be of broader interest for determining authorities under Part 5. First, the decision emphasised the need to consider the environmental impacts for each activity being contemplated. Although a determining authority might reasonably conclude that a particular activity has smaller environmental impact than a similar activity previously contemplated and assessed, that fact alone does not discharge the duty of a determining authority to properly consider the environmental impact of each activity under s.5.5(1).  Secondly, in order to properly discharge its duty under s.5.7(1), a determining authority should make an affirmative decision about whether the proposed activity will, or is likely to, have a significant effect on the environment. Finally, where a REF concludes that an activity is unlikely to have a significant impact but only if carried out in accordance with specified mitigation measures or controls, a determining authority must ensure that those measures or controls are implemented to avoid the risk of its approval being set aside.

If you have specific areas of concern relating to dog on- and off-leash areas in your local government area, please contact Andrew Brickhill or Alan Bradbury for further information and advice.

[1] At [131]

[2] At [134] citing Royal Agricultural Society (NSW) v Sydney City Council at 310; Chamwell Pty Ltd v Strathfield Council at [36].

[3] At [253].

[4] At [263]

[5] At [268]

[6] At [269]

[7] At [282]

[8] At [283 – 285]

[9] At [282, 345]

[10] At [322, 345]