'Man's best friend' or 'furry foe'? Councils should consider whether development consent or Part 5 assessment is required for off-leash dog areas

With increasing density comes smaller yards and more demand for public places that permit dogs off-leash. Off-leash dog activities have the potential for adverse interactions with people and impacts on the environment.

The recent decision delivered by Justice Pain in Narrawallee Beach Environmental Group Inc v Shoalhaven City Council [2023] NSWLEC 78 (Narrawallee) serves as a reminder to Councils that they may need to consider development consent or Part 5 assessment under the Environmental Planning and Assessment Act 1979 (EPA Act) when implementing or extending off-leash areas.

Background

In Narrawallee, the Narrawallee Beach Environmental Group Inc (the Applicant) challenged the validity of a decision made by the Council on 2 November 2021 to alter the boundaries of the off-leash area and allow on-leash dog access from the southern entry points of Narrawallee Beach (the Beach) as a transit area for dogs to access the off-leash area (the Decision).

Dogs were prohibited on the Beach until 2005 when a portion of the Beach was made an on-leash area. In 2015 an off-leash trial was implemented, and Council subsequently made numerous resolutions between 2015 – 2021 regarding the permissibility of dogs on the Beach in accordance with its Access Areas for Dogs Policy.

The Applicant argued the Decision made in November 2021 did not comply with Part 4, or alternatively, Part 5 of the EPA Act and sought orders that Council remove all dog faeces bins, bag dispensers and signage allowing off-leash use, and replace it with signage saying dogs were prohibited until development consent was obtained.

The Court granted leave to the Applicant under rule 59.10 of the Uniform Civil Procedure Rules to challenge the Decision even though the statutory time limit of three months had passed.

The intensification issue

The Applicant and Council agreed that the use of the Beach as an off-leash area for dogs was a development for the purposes of a “recreation area” and was permissible with development consent. The parties further agreed that the land could continue to be used as a “recreation area” without obtaining development consent under the “continuing use rights” provisions in s 4.68 of the EPA Act. The issue in dispute was whether the proposed use as an off-leash dog area constituted an “intensification” of the use of the Beach as a recreation area within the meaning of s 4.68(2)(c) of the EPA Act, in which case development consent would be required.

The Applicant bore the onus of proof in establishing that there had been an intensification of use and tendered lay evidence in the form of affidavits from residents detailing an increase in the number of dogs on the Beach and the associated impacts since the making of the Decision.

The Court determined, based on previous authorities, that it was necessary to consider whether there had been intensification of use from 3 February 1986, being the date on which s109(2) (now s4.68(2)) of the EPA Act commenced.

Ultimately Pain J, found that the Applicant had not established a factual baseline from which to assess the intensification of the use. While the Applicant had produced evidence of an increased number of dogs, the Court found that this did not equate to an increase in the number of people using the Beach. Pain J explained (at [101]):

“For intensification to be demonstrated there needs to be a factual baseline established for comparative purposes and arguably none is provided by the Applicant's evidence. The period over which intensification was alleged was not precisely defined by the Applicant's counsel ... General unsupported statements by lay witnesses some of whom have been using the Beach for recreation since the 1960’s and 1970’s that dog numbers had increased over time does not assist in undertaking the necessary comparison ...  Identification of a historic baseline use is lacking in evidence. For that reason alone the Applicant cannot succeed in its intensification argument.”

The Applicant failed to establish that intensification of the recreational use of the Beach had taken place and had not therefore demonstrated that development consent was required under Part 4 of the EPA Act at the time the Decision was made.

Relief

A Review of Environmental Factors (REF) was not before Council when the Decision was made. Council accepted that its Decision gave rise to an activity to which Part 5 applied and that there had been a non-compliance with s 5.5(1) of the EPA Act because it did not examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment before making the Decision.

After the Decision, a REF was considered by Council at its 28 March 2022 meeting. Council relied on the REF to argue that, as a matter of discretion, the relief sought by the Applicant was not warranted as a reasonable assessment of environmental impacts occurred with the preparation of the REF.

The Applicant argued that the REF did not adequately assess the actual or likely impacts of the activity (particularly in the context of shorebird disturbance) and was insufficient to satisfy the duty under s 5.5 of the EPA Act by a determining authority.

Pain J confirmed the previously established principle that the Council’s obligation under Part 5 of the EPA Act was to examine and take into account “to the fullest extent reasonably possible all matters affecting or likely to affect the environment”. Her Honour found that the REF was a reasonable assessment of all of the relevant matters – at [200]:

“The REF must be viewed as a whole and it is fair to describe it as comprehensive in relation to the impacts identified and considered. Overall, I consider the REF is capable of enabling the Council to take into account all matters affecting or likely to affect the environment such that the Council has the capacity to comply with Pt 5.”

Pain J ultimately declined to grant the relief sought by the Applicant but declared that the Decision was of no force and effect as there had been no compliance with s 5.5 of the EPA Act (as accepted by Council). The effect of this decision was that the dog access arrangements on the Beach reverted to those the subject of the previous Council resolution.

Implications

The decision in Narrawallee confirms that a Council must consider whether development consent or a Part 5 assessment under the EPA Act is required when making decisions about its use of land, including the use of recreation areas managed by Council. Failure to comply with the requirements of the EPA Act could leave any decision made by the Council concerning the use open to legal challenge. That challenge could be made some time after the actual decision is made, noting that in Narrawallee the Court allowed the matter to proceed, even though the statutory time limit of three months had passed.