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  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.
Duty to consider environmental impacts
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).
Is a decision by council to approve an activity invalid if it fails to consider the environmental impacts of an activity under Part 5?
In Palm Beach Protection Group Incorporated v Northern Beaches Council  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:
- Breached s 5.5(1) of the EP&A Act in considering and determining to approve on 19 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, and
- Breached s 5.7(1) of the EP&A Act in granting approval on 27 August 2019 to the activity of conducting a dog off-leash trial at Station Beach for a 12 month period, without having obtained or examined and considered an EIS in respect of that activity
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.
What do the duties under Part 5 entail?
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:
- The duty is imposed for the purpose of obtaining the objects of the EP&A Act relating to the protection of the environment and has effect notwithstanding any other provision of the EP&A Act or any other Act.
- The particular activity proposed by the proponent is the activity of which the environmental impacts are to be considered.
- The duty is to examine and take into account the impact of an activity and both verbs require positive action by the determining authority. Examination requires inspection, inquiry or investigation of the environmental impact but also some responsiveness and reflectiveness to the impacts in the determining authority’s decision-making.
- The phrase “to the fullest extent possible” in s 5.5 sets a high standard but the standard is to be tempered by reasonableness and the provision is to be read as if the word “reasonably” was inserted before “possible”.
- The duty is not restricted to any timeframe in relation to a determining authority that carries out an activity; any matter affecting or likely to affect the environment that first came to council’s attention after the activity commenced could not be ignored.
- The environment affected by the carrying out of the activity is not only the site on which the activity is carried out but also the geographic location in which it is to be carried out.
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.
- Section 5.7 imposes an implied duty on a council to determine whether an activity is likely to significantly affect the environment.
- The activity to be assessed is the activity described by the proponent, including any ameliorative measures incorporated in the description of the activity but does not include any conditions that might be imposed by the authority on any approval granted.
- Determining whether the activity is likely to significantly affect the environment requires consideration of both the potentially affected environment and the degree of the effects of the activity; and
- Whether an activity is likely to “significantly” affect the environment includes examining at least two factors:
- Firstly, the extent to which the action will cause adverse effects in excess of those created by existing uses in the area affected by it, and
- Secondly, the quantitative environmental effects of the action itself, including any cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.
Key points for councils, applicants and communities
- When considering any activity (to which Part 4 of the EP&A Act does not apply), the duty imposed under Part 5 is always present and obliges councils to consider to the fullest extent possible the environmental impacts or likely impacts of that activity.
- A council must be in receipt of an EIS and must have examined and considered it before granting approval to or carrying out an activity likely to significantly affect the environment. This requirement incorporates an implied duty on council to consider whether an activity may significantly affect the environment.
- Failure to consider the environmental impacts of an activity to which Part 5 applies is likely to compromise an approval in respect of that activity, and if challenged, the decision may be found to be invalid.