Zoe is a legal information platform. Always consult the official source for authoritative text.
Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council - [2019] NSWLEC 202 - NSWLEC 2019 case summary — Zoe
(2013) 303 ALR 242
Haughton v Minister for Planning and Macquarie Generation
Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217
(2011) 185 LGERA 373
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
(2018) 359 ALR 1
Kruger v Commonwealth of Australia
Source
Original judgment source is linked above.
Catchwords
(2013) 303 ALR 242
Haughton v Minister for Planning and Macquarie GenerationHaughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217(2011) 185 LGERA 373
Hossain v Minister for Immigration and Border Protection [2018] HCA 34(2018) 359 ALR 1
Kruger v Commonwealth of AustraliaBray v Commonwealth of Australia (1997) 190 CLR 1[2016] FCAFC 28
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1[2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30(2018) 357 ALR 408
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611[1999] HCA 21
Norbis v Norbis (1986) 161 CLR 513[1986] HCA 17
North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27[1981] HCA 50
Parramatta City Council v Pestell (1972) 128 CLR 305[1972] HCA 59
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28
Sharples v Minister for Local Government [2010] NSWCA 36
(1994) 85 LGERA 92
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
[2003] FCA 977
Walsh v Parramatta City Council [2007] NSWLEC 255
Judgment (34 paragraphs)
[1]
Introduction
Although the Court received extensive evidence comprising approximately 3,000 pages of background material, and the amended summons itself comprised 84 paragraphs, it is clear that the essence of the applicant's case is that there was no rational or proper basis for the Minister and Council respectively certifying and adopting the CZMP which included the categorisation of coastal hazards at Blueys Beach and Boomerang Beach (collectively 'the Beaches') as "extreme or high risk" absent an evidential foundation. As such, the CZMP did not comply with the Coastal Protection Act 1979 (NSW) ('CP Act') or the Guidelines for Preparing Coastal Zone Management Plans ('Guidelines').
As the applicant pleads its case under four discrete yet overlapping grounds, and given that Council challenges the applicant's standing, I will summarise the background factual material, and given the importance of the statutory regime, I will then summarise the relevant sections of the CP Act and give consideration to the associated instruments. I will then consider the question of standing, and finally, I will address the four grounds pleaded by the applicant.
[2]
Background
An understanding of the background facts and the conduct of each of the parties, much of which is uncontroversial, provides context to consider the manner in which the applicant puts its claims.
[3]
The parties
The applicant is an association incorporated under the Associations Incorporation Act 2009 (NSW) and is located in Newcastle East.
The Minister is a Minister of the Crown in right of New South Wales having functions and powers under the CP Act.
Council, a body politic of the State of New South Wales with the legal capacity and powers of an individual by reason of s 220(1) of the Local Government Act 1993 (NSW), is the legal successor of the Great Lakes Shire Council, and was formed on 12 May 2016 from an amalgamation of the Great Lakes Shire Council, Gloucester Shire Council, and City of Greater Taree Council.
[4]
The Beaches
The Beaches are two small, adjacent embayment beaches on the mid-north coast of New South Wales, approximately 18 kilometres south of Forster. There are coastal communities, predominantly residential, at each of the Beaches. The Beaches are two of many beaches in the local government area of what was Great Lakes Council (now MidCoast Council post amalgamation in 2016).
Boomerang Beach is a long wide sandy barrier beach of about 1,400 metres in length between the headlands of Charlotte Head and Boomerang Point. Behind the beach is a vegetated dune of 10 to 24 metres in height along the length of the beach.
Blueys Beach is a sandy barrier beach of about 900 metres in length situated between Boomerang Point and Blueys Head. Behind the beach are two vegetated dunes.
[5]
Chronology and the decisions made by the Minister and Council
On 16 November 2010, WorleyParsons, a consulting and advisory company in the energy, chemicals and resources sectors, delivered a draft report to Council relating to the potential for coastal risks at the Beaches entitled "Boomerang Beach and Blueys Beach - Coastal Processes and Hazard Definition Study". The report was commissioned by Council for the purpose of examining coastal hazards to determine the immediate, 2060 and 2100 hazard lines to be used in formulating a Coastline Management Plan in accordance with the Coastline Management Manual (1990).
On 5 July 2011, WorleyParsons finalised the report entitled "Boomerang Beach and Blueys Beach - Coastal Processes and Hazard Definition Study" ('WP 2011 Report').
In connection with the preparation of the CZMP, Council also received the "Great Lakes Coastal Hazard Study" prepared by SMEC Australia Pty Ltd dated 23 October 2013.
On 4 April 2014, the Great Lakes Local Environmental Plan 2014 ('LEP 2014') commenced, which included the Coastal Risk Planning Map CRA_012A.
In June 2014, BMT WBM Pty Ltd, a design, engineering, science and risk management consultancy, prepared reports for Council entitled "Ground Penetrating Radar Investigation of Blueys and Boomerang Beaches" and "Bedrock Based Coastal Hazard Revision for Blueys and Boomerang Beach" ('GPR Reports').
In March 2015, Great Lakes Council (as Council then was) published a draft CZMP which was informed by a number of studies and reports, including the WP 2011 Report which Council had commissioned.
On 10 March 2015, Council passed a resolution to delegate authority to the Mayor and General Manager to adopt the then "final draft" of the CZMP to allow public exhibition and community engagement.
From 2 April 2015 to 15 May 2015, the draft CZMP was publicly exhibited. There were extensive submissions received which are summarised in Appendix B to the CZMP. The submissions include many of the concerns raised by the applicant in relation to the adequacy of the earlier reports relied upon in the preparation of the draft CZMP.
On 6 October 2015, Council passed a resolution to formally adopt the CZMP. Council also recommended formally adopting the "Great Lakes Coastal Zone Management Plan: Options Study" prepared by BMT WBM Pty Ltd for subsequent use in completion of the CZMP, as well as in interim planning and coastal management arrangements.
[6]
Evidence
The Court received extensive evidence much of which was not specifically referred to, including an evidence book comprising two volumes of material and separate tender bundles prepared by each of the parties. The applicant separately tendered the final CZMP dated October 2015 and a bundle of documents in relation to submissions and objections to the CZMP.
In addition, the applicant read the affidavits of Adrian Donald Hibberd, the applicant's Secretary/Public Officer, dated 4 May 2018, in relation to standing, and Michael John Francis Fox, President of the applicant, dated 4 May 2018, in relation to the engagement that members of the applicant had with others. Mr Fox also gave oral evidence.
The Minister read an affidavit of Samuel Kidman, Director, Ministerial Services in the Ministerial Services Branch of the OEH, dated 12 April 2019, in relation to the material before the Minister at the time of certification.
Council read the affidavit of Gerard Leo Tuckerman, Manager, Natural Systems at Council, dated 16 April 2019, in relation to the implications of challenges to Council's decisions to submit the draft and final draft CZMP to the Minister for certification in light of the changes to the coastal management legislation, and the work Council intends to carry out to prepare new coastal management programs. Mr Tuckerman also gave oral evidence. Council also read the affidavit of Alexandra Elizabeth Cannon Macvean, Senior Strategic Planner at Council, dated 16 April 2019, which attached two maps showing the "Coastal Risk Planning Area" for Blueys Beach and the "Coastal Risk Planning Area" for Boomerang Beach.
Each of the parties provided detail written and oral submissions.
[7]
Legislative framework and requirements for the preparation and certification of a coastal zone management plan
The CP Act has been repealed and replaced by the Coastal Management Act 2016 (NSW) ('CM Act') which came into force on 4 April 2018. However, at the time of certifying the CZMP, the CP Act was in force and is, for the purposes of these proceedings, the relevant legislation. The CZMP continues to have effect until replaced by a "coastal management program" under the CM Act pursuant to cl 4, Pt 2 in Sch 3 therein.
As detailed below, the legislative framework provides for a three-step process: first, Council is to prepare the plan and submit it to the Minister; second, the Minister determines whether to certify that the plan has been prepared in accordance with the requirements of the CP Act (which include the Guidelines and the Panel's recommendations); and third, if the plan is so certified, it can be made by Council by publication in the Government Gazette. As such, there is a division between Council (or the person who prepares plan) and the Minister in relation to certification.
For convenience, the relevant provisions in the CP Act are detailed below.
The objects of the Act are contained in s 3 of the CP Act, which provided:
3 Objects of this Act
The objects of this Act are to provide for the protection of the coastal environment of the State for the benefit of both present and future generations and, in particular:
(a) to protect, enhance, maintain and restore the environment of the coastal region, its associated ecosystems, ecological processes and biological diversity, and its water quality, and
(b) to encourage, promote and secure the orderly and balanced utilisation and conservation of the coastal region and its natural and man-made resources, having regard to the principles of ecologically sustainable development, and
(c) to recognise and foster the significant social and economic benefits to the State that result from a sustainable coastal environment, including:
(i) benefits to the environment, and
(ii) benefits to urban communities, fisheries, industry and recreation, and
(iii) benefits to culture and heritage, and
(iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, and
(d) to promote public pedestrian access to the coastal region and recognise the public's right to access, and
(e) to provide for the acquisition of land in the coastal region to promote the protection, enhancement, maintenance and restoration of the environment of the coastal region, and
(f) to recognise the role of the community, as a partner with government, in resolving issues relating to the protection of the coastal environment, and
(g) to ensure co-ordination of the policies and activities of the Government and public authorities relating to the coastal region and to facilitate the proper integration of their management activities, and
(h) to encourage and promote plans and strategies for adaptation in response to coastal climate change impacts, including projected sea level rise, and
(i) to promote beach amenity.
[8]
The Guidelines, in s 2.2.1, under the heading "Plan preparation process" state inter alia, that:
The following should be considered before commencing the planning process:
• the geographic area to be covered by the plan and the scope of the plan (i.e. the management issues to be considered)
• relevant time periods for long-term planning, implementation and review of the CZMP
• the management objectives that the plan is to help achieve (these may need to be determined early in the planning process), and
• the proposed community and stakeholder consultation process.
For CZMPs covering both coastal hazards and estuary issues, the basis for developing appropriate management actions is an understanding of the behaviour of the natural systems. The degree of understanding of natural coastal systems should be compatible with the information needs for making decisions under the CZMP. In many situations, extensive existing information is available and should be collected early in the CZMP preparation process. Only important data gaps need to be filled when preparing a CZMP. The CZMPs implementation schedule may include data collection actions to support future decision-making.
…
In s 2.2.2, the Guidelines provide further detail in relation to consultation.
Section 3.1 of the Guidelines sets out minimum requirements for assessment of coastal risks and specifies what should be included in a coastal zone management plan which addresses coastal risks, including:
• a description of:
- coastal processes within the plan's area, to a level of detail sufficient to inform decision-making
- the nature and extent of risks to public safety and built assets from coastal hazards
…
- property risk and response categories for all properties located in coastal hazard areas
• proposed actions in the implementation schedule to manage current and projected future risks from coastal hazards, including risks in an estuary from coastal hazards. Actions are to focus on managing the highest risks (section 55C(d) and (e) of the Coastal Protection Act 1979)
…
Section 3.2 of the Guidelines relates to risks from coastal hazards. At s 3.2.1, the Guidelines identify the minimum assessment criteria for assessing the extent of coastal hazards in Table 2 which provides:
Hazard Minimum assessment criteria
Beach erosion Storm bite due to a beach erosion event with an average recurrence interval (ARI) of approximately 100 years plus an allowance for reduced building foundation capacity
Shoreline recession Estimated recession due to sediment budget deficit and projected sea level rise*
Coastal lake or watercourse entrance instability Qualitative assessment of entrance dynamics based on historical records*
Coastal inundation (including estuaries) Estimate of wave run-up level and overtopping of dunes resulting from an extreme ocean storm event*
Coastal cliff or slope instability Slope stability assessment; see Australian Geomechanics Society (2007)*
Tidal inundation (including estuaries) Estimate of areas inundated from still water levels with a 500 or 100-year ARI*
Erosion within estuaries caused by tidal waters, including the interaction of those waters with catchment floodwaters Estimate of estuary foreshore erosion due to physical processes and flood events
[9]
assess under current conditions and projected future conditions.
Section 3.2.1 of the Guidelines further states:
The CZMP should include a map indicating the extent of each hazard present in the study area. For beach erosion and recession, the map should indicate the extent of the predicted beach erosion hazard, with predicted recession hazard areas indicated landward of this erosion hazard area. The plan should also include a table for each hazard indicating the number and type of buildings (e.g. residential, commercial and community) and significant infrastructure within each hazard area. The table should be used to assess the relative risks associated with these hazards, based on likelihood and consequences. It should include any additional relevant information on risks arising from these hazards (e.g. depth of inundation).
In s 3.2.4, under the heading "Property risk and response categories", the Guidelines state:
CZMPs are to categorise all private property subject to coastal hazards according to the degree of hazard, and, in the case of hazards due to erosion and recession, the category of council's intended response to managing the risks to the property (see Tables 5 and 6). This information is to be provided in a table in the CZMP. Where a property is located on the boundary between two hazard areas, the most seaward hazard area should be used, unless this area is less than approximately 25% of the block.
Tables 5 and 6 in s 3.2.4 of the Guidelines provide:
Table 5. Hazard vulnerability categories
Risk category Hazard area for property
1 Current hazard area
2 2050 hazard area (i.e. likely to be affected by erosion or recession in the next 40 years)
3 2100 hazard area (i.e. likely to be affected by erosion or recession in the next 40-90 years)
[10]
Table 6. Coastal hazard response category
Response category Intended public authority response
A Coastal protection works are considered technically feasible and cost-effective - funding is being sought for implementation
B Coastal protection works are considered technically feasible but not cost-effective for public funding - unlikely to be implemented by a public authority
C Coastal protection works are not considered technically feasible - no intended public authority works
[11]
Applicant's standing at common law
Council challenges the applicant's standing to bring these proceedings. The Minister does not.
In the absence of open standing provisions such as the former s 123 of the EPA Act, there is no automatic statutory right for a person to bring judicial review proceedings challenging decisions made under Pt 4A of the CP Act. Council contends that the Court's jurisdiction derives from s 20(2) of the Land and Environment Court Act 1979 (NSW) and as such, Council submits that the applicant is relying upon the common law principles of standing.
Council submits that the authorities concerning the standing of environmental groups are not directly applicable in circumstances where the applicant's main objective appears to be to oppose the imposition of environmental controls contemplated by the CZMP. Mr Lazarus submitted that the applicant is not an "environmental group", its cause is not an environmental cause, and it was not conducting its case through any concern for the environment, but was solely motivated by the self-interest of its members (in relation to a perception about the impact on property values arising from the CZMP). As such, Council contends that the authorities in relation to the standing of representative associations are more relevant.
Council cites the general principles which require consideration of the interests and activities of an incorporated association and the relationship between the association and the issues in the proceedings, and reminds the Court that one or more members having a specific interest does not permit the incorporated association to acquire standing.
Council submits that there is little information in the evidence about the applicant and that it appears to have been originally formed as an informal group in about 2011, but it was only incorporated in April 2015. Council submits that its objects are as broad as might be conceivable for such a group.
Council further contends that the evidence does not disclose how the making of the CZMP impacts particular members except to note that most of them are said to own properties at Blueys Beach or Boomerang Beach. Mr Lazarus submitted that writing letters in relation to various matters including the LEP 2014 map and commencing proceedings not by any individual member but by an incorporated association was not sufficient to confer standing upon the applicant. Mr Lazarus contended that the applicant has failed to discharge its onus in demonstrating that not only did individual members have an interest in setting aside the CZMP, but that the incorporated association did in the requisite sense.
[12]
Consideration
The principles in relation to standing are well established and are articulated in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 ('Australian Conservation Foundation') and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 ('Onus'). Relevant to the determination as to whether the applicant has standing, I adopt the analysis of those decisions by Sackville J in North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492 ('North Coast Environmental Council') at 512, as considered by Craig J in Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373 at [88]-[102] as follows:
(i) a "special interest" in the subject matter of the action must be demonstrated; a "mere intellectual or emotional concern" for preservation of the environment was insufficient to constitute such an interest; any asserted interest must extend beyond that of members of the public in upholding the law and involve more than genuinely held convictions;
(ii) a "special interest" in the preservation of a particular environment may be demonstrated and in that respect an intellectual or emotional concern is not a disqualification from standing to bring proceedings;
(iii) non-compliance with procedures ordained by statute are not themselves sufficient to confer standing on an applicant;
(iv) the fact that a submission was made in response to notification of an environmental impact statement or, in this case, an environmental assessment to aid the Minister's consideration of the application did not, of itself, confer standing to challenge the decision or decisions made by the Minister; and
(v) special interest of an organisation is not demonstrated simply by adopting objects demonstrating an interest in and commitment to the preservation of the physical environment.
It is accepted that merely taking up a particular cause, or having objects reflecting an interest in and commitment to particular subject matter does not mean that an incorporated association will automatically have standing in any proceeding relating to that cause or subject matter (North Coast Environmental Council at 512 and Alliance to Save Hinchinbrook v Cook [2006] QSC 084; (2006) 145 LGERA 32 at 105), and that most of the cases in which incorporated associations have been found to have standing have concerned challenges to administrative decisions affecting the environment and in many instances the association may have been the only entity with a special interest in the subject matter: Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594 at [130(c)], [135].
[13]
Applicant's position
The applicant seeks declaratory relief in respect of the impugned decisions on four primary and overlapping grounds, being unreasonableness; non-compliance with the CP Act and Guidelines; deficiency of information for the CZMP; and no rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP. The applicant also submits that each decision was an irrational exercise of power.
In essence, the applicant's complaint relates to the characterisation in the CZMP of the present extent of natural hazards at each of the Beaches. The applicant submits that it was a mandatory requirement for the extent of coastal hazards to be set out in a coastal zone management plan. The balance of a coastal zone management plan then proceeds on the basis of that assessment in setting out responses for managing those hazards. As such, the assessment of coastal hazards is a significant part of the preparation of a coastal zone management plan and one which, as the Guidelines reflect, requires an evidence based approach.
At the hearing, Mr Hutley put the applicant's case more compendiously and submitted that the draft CZMP was not in accordance with the CP Act and the Guidelines in two ways: first, the plan did not comply with the form of the Guidelines; and, second, to the extent that there was a purported compliance with the description of coastal risks arising from coastal hazards, it lacked a fundamental evidential foundation and was legally unreasonable because of the application of an algorithm which had no relationship to the requirements in either the CP Act or the Guidelines.
The applicant submits that at all material times, the Beaches were (and are) "stable and in balance" and that the properties at the Beaches are not presently subject to coastal hazards of erosion, recession or wave runup and overwash. In these circumstances, there was no basis for the categorisation in the CZMP as "immediate, intolerable risk" and "extreme or high risk" from coastal hazards.
The applicant contends that there was no rational or proper basis for Council and the Minister respectively approving and certifying the CZMP which included such a characterisation about the present degree of coastal hazard at the Beaches. As a result, the CZMP did not comply with the CP Act or the Guidelines, and the decision to certify the CZMP and Council's decision to adopt the CZMP (and presumably the antecedent decisions on or about 24 November 2015 and 22 August 2016) were unreasonable and irrational.
[14]
Ground 1 - unreasonableness
Notwithstanding the physical conditions and circumstances of the Beaches, the applicant notes that the CZMP characterises 11 unidentified lots at Boomerang Beach at "extreme or high risk" from coastal erosion at the present day and 21 unidentified lots at Blueys Beach at "extreme or high risk" from wave runup or overwash at the present day. Accordingly, the applicant says that each of the decisions to adopt and certify the CZMP and to so categorise the unidentified properties was so unreasonable that no decision-maker acting reasonably would have made those decisions and, as such, they were in jurisdictional error.
In circumstances where the assessment of the degree of the hazard as "extreme or high risk" was not a description of the hazard or the degree of hazard that had been assessed at either of the Beaches, the applicant submits that it was an assessment made in the absence of evidence or a justifiable basis and it was so unreasonable that no decision-making authority acting reasonably would have made.
[15]
Ground 2 - non-compliance with the CP Act and Guidelines
Prior to summarising the applicant's submissions in relation to ground 2, it should be noted that there was significant overlap in the applicant's submissions regarding grounds 2 and 3.
The applicant submits that the extent of the coastal hazards at the immediate, 2060 and 2100 timeframes in the draft CZMP was defined for the Beaches based on the WP 2011 Report and that a draft of the WP 2011 Report had been provided to Council in 2010 so by 2015, it was more than four years old.
The applicant submits that the WP 2011 Report itself was not sufficient to satisfy the requirements of the CP Act or the Guidelines in the following respects: the WP 2011 Report was prepared in 2010 and finalised in 2011, without further substantive work; the WP 2011 Report was a limited investigation only, being a desktop study; the WP 2011 Report relied on photogrammetric data only until 2006, although more recent data was available; because of the limited nature of the study, the WP 2011 Report also ignored the evidence available to WorleyParsons which WorleyParsons recognised was that the Beaches were accreting; the WP 2011 Report did not investigate the current position of the dunes at the Beaches in 2010 or at the time of the publication of the report; in applying maximum storm cut to average profiles after 1996 and 1964 respectively, the WP 2011 Report involved a double counting of the storm demand and ignored the ongoing accretion at both beaches; and an assessment of the position in 1996 or 1964 which ignored decades of subsequent accretion could not provide a proper basis for an assessment of the actual present hazard position at either of the Beaches in 2010.
The applicant submits that at all times from the delivery of the first draft of the WP 2011 Report to Council in 2010, both Council (and the relevant Minister) would have been aware of the suggested limitations of the report.
The applicant submits that in order to exercise the function of certifying the CZMP, the Minister must have had before her, at a minimum, materials which supported a conclusion that the CZMP had been prepared in accordance with the CP Act in relation to the assessment and categorisation of the degree of coastal hazards at the Beaches as immediate and extreme. The applicant contends that there was no evidence before the Minister that this was the case.
[16]
Ground 3 - deficiency of information for the CZMP
The applicant submits that the authors of the WP 2011 Report made it clear that their report was not sufficient for decision-making and identified further information which Council needed to obtain. At s 7.5 of the WP 2011 Report, the authors set out recommended data collection including directional wave data; pre and post storm beach profiling; repeat bathymetric surveys of the surf zone of the Beaches; and ongoing aerial photography and subsequent photogrammetry profiling and analysis.
The applicant submits that even with this "flawed" approach, the WP 2011 Report concluded that there was no immediate risk to Blueys Beach (Table 7-1). Ten dwellings south of Carramatta Close at Boomerang Beach were at immediate risk of coastal erosion and shoreline recession (Table 7-1).
The applicant contends that Council did not obtain any additional data of the recommended data collection set out in s 7.5 of the WP 2011 Report, and submits that no explanation has been provided by Council for its failure to obtain and analyse additional data as recommended by WorleyParsons in 2010.
The applicant notes that in March 2015, Council published a draft CZMP and in August 2016, a further draft was again submitted to the Minister for certification. The applicant submits that no action had been taken to do any more work or update the limited analysis of WorleyParsons in 2010 and the same characterisation of the degree of coastal hazards remained in place for the Beaches.
While Council obtained two subsequent reports in 2014, being the GPR Reports, these were limited in nature, confined to a Ground Penetrating Radar Investigation, and then to making revisions to the WorleyParsons 2011 Hazard Lines based on information about the present bedrock substrate at the Beaches obtained from the Ground Penetrating Radar Investigation. The applicant submits that neither of the reports support the characterisation in the CZMP that the degree of hazard presently existing was "immediate, intolerable risk" and "extreme or high risk".
The final report obtained by Council for the preparation and finalisation of the CZMP was the Options Study prepared by BMT WBM Pty Ltd published in draft form in November 2014 and finalised in December 2015. The applicant submits that the Options Study did not do any fresh modelling or assessment of coastal hazards at the Beaches, or address the deficiencies in the WP 2011 Report, however stated:
While the previous hazard studies adopted various assumptions and limitations (WorleyParsons 2011), they remain the best available information on coastal risk.
[17]
Ground 4 - no rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP
The applicant submits that notwithstanding the physical conditions of the Beaches and the lack of any physical hazards existing thereon, the CZMP contains: Table 1-3, which states that 11 lots of residential development at Southern Boomerang are at a present day "extreme or high erosion/recession risk"; and Table 1-4, which states that 21 lots at Southern Blueys are at a present day "extreme or high wave runup risk".
The applicant notes that the specific lots subject to this degree of hazard were not further specified, and submits that the characterisation of the degree of hazard in relation to the Beaches in the CZMP as being at a present day extreme or high risk from existing coastal hazards finds no support in the technical reports underpinning the CZMP, is incomprehensible in that all of the evidence points to there being no or only "unlikely" natural hazards existing at the Beaches and that the Minister and Council were so advised over a considerable period. As such, the applicant says that the decision to certify lacked any evident or intelligible justification.
The applicant submits that the absence of any materials about this issue was acute in circumstances where Minister Stokes (in January 2017) and Minister Upton (in June 2017) had been in meetings with members of the applicant and the Panel and there is no evidence before the Court about how, if at all, the Minister addressed the issue about the categorisation of natural hazards when she came to consider whether to certify the CZMP and did so.
Mr Hutley submitted due to a transposition of information error, Table 1-4 was intended to be based on the maps in Appendix F to the Options Study, but because of an error in its heading, the table does not correspond with the maps so the table lacks an evidentiary foundation. Mr Hutley submitted that similar errors appear in Table 1-3.
Mr Hutley further submitted that the Guidelines require an assessment of the relative risks associated with particular hazards and Council made no assessment of the actual extent of risk or consequences of a hazard in terms of physical ramifications in any of its draft plans or in any of their interactions. Council developed its own bespoke ("algorithm") process and made no substantive attempts to comply with the requirements.
[18]
Minister's position
Ms Duggan submitted that the CZMP is effectively a policy document, not an operational document like a local environmental plan, and that a coastal zone management plan is intended to be a document that sets the scene to achieve the objects of the CP Act in relation to a particular part of the coast. That is, it is not an instrument to control, but an instrument to guide. Despite the applicant's references to ss 55K and 55L of the CP Act to suggest otherwise, Ms Duggan submitted that those provisions merely state that if one is going to protect their property or try and prevent erosion, they have to do it in accordance with the relevant coastal zone management plan or development consent needs to be obtained, and those sections do not elevate the CZMP to anything higher than a policy document. Ms Duggan further noted that s 55L of the CP Act is merely a power to restrain rather than prosecute the offending conduct referred to in s 55K.
Ms Duggan referred to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ('Li') at [111] to submit that the Court is less inclined to find error in circumstances where the decision involves policy. Ms Duggan submitted that the only mandatory consideration that the Minister had to comply with was that she needed to exercise her functions having regard to the objects of the CP Act, and those objects involve matters of policy.
When looking at a policy document (rather than an instrument of control), Ms Duggan submitted that materiality is in a completely different context, and the applicant needs to demonstrate that the errors it asserts were material.
The Minister noted that the Court had not been taken to the Guidelines in any meaningful way by the applicant to demonstrate that they impose mandatory requirements which had not been met.
The Minister contends that the only decision of the Minister that is capable of review is the decision to certify and that the preparation and content of the CZMP are actions by Council (not the Minister).
The Minister submits that in the exercise of her discretion to certify the plan, the only stated mandatory requirement is contained in s 55A of the CP Act which requires the Minister to have regard to the objects of the CP Act (contained in s 3 therein).
The Minister says that the decision to certify is a statutory discretion that calls for a decision by the Minister as to whether she is satisfied that the plan has been prepared in accordance with the requirements of the CP Act and could therefore be certified.
[19]
Council's position
Council submits that the applicant's attack on Council's and the Minister's respective decisions is merits review under the guise of judicial review.
The role of Council is to prepare a draft CZMP in accordance with the Minister's Guidelines, to amend and resubmit a plan with any changes recommended by the Panel, and then to make the plan and publish it in the Gazette once it has received the Minister's certification.
Council submits that it had no discretion in any of these matters other than in respect of the preparation of the initial draft plan, and the making of any amendments as a result of its consideration of public submissions. Council says that once the draft CZMP had been submitted to the Minister, it had no choice but to make any changes recommended by the Panel, and to make the plan once the Minister had certified the draft. As such, Mr Lazarus submitted that the challenge to the ultimate making of the plan by Council hinges upon the applicant's success in arguing that the certification decision was invalid.
Council submits that aside from the mandatory content requirements in s 55C of the CP Act, and the obligation in s 55D(1) to prepare a draft CZMP in accordance with the "Minister's guidelines", Council's discretion in preparing the draft plan is unconfined. Council says that so long as the draft plan follows the Guidelines, how a council addresses each of the s 55C matters is left to Council's judgment and discretion.
[20]
Ground 1 - unreasonableness
Council submits that the primary complaint in this ground relates to Tables 1-3 and 1-4 of the CZMP, specifically to the references to 11 lots at Southern Boomerang in Table 1-3 and 21 lots at Southern Blueys in Table 1-4. To understand those references, Council says it is necessary to have regard to the relevant hazard mapping ("Coastal Hazard Risk Maps") contained in the Options Study, which is Appendix A to the CZMP, and described as a "companion document" to the CZMP. The Coastal Hazard Risk Maps are set out at Appendix F to that document, which identify the areas at the relevant beaches subject to the relevant levels of hazard relating to erosion and recession and coastal inundation as at the present day, 2060 and 2100. Council submits that it is also necessary to have regard to the tables containing the asset risk registers for the Beaches contained in the Options Study.
Council submits that the reference to 11 lots at Southern Boomerang in Table 1-3 of the CZMP is a reference to the properties shaded in orange in Fig A-08 of the Options Study (which are identified in more detail in Table 4-5 and in the full version of the asset register in Table 5-1). Taking that information together, Council submits that it is possible to identify the specific properties referred to in Table 1-3 of the CZMP.
Similarly, insofar as the reference to the 21 lots at Southern Blueys at "extreme or high risk from wave runup and overwash" in Table 1-4 of the CZMP is concerned, Council submits that Fig D-10 in the Options Study shows a number of orange ("high risk") lines extending over numerous lots, but without affecting the residential properties themselves. Council says that this accords with a number of entries in the relevant asset risk register (in Table 5-2 of the Options Study). Whether the reference to the 21 lots in Table 1-4 is a typographical error or not, Council submits that it plainly does not amount to jurisdictional error so as to invalidate the CZMP. That is, Council contends that Table 1-4 is merely a summary of the other information contained in the CZMP (or in the Options Study) and it is the hazard risk maps themselves, rather than the summary in Tables 1-3 and 1-4 that are significant.
Mr Lazarus submitted that the only "error" Council conceded related to the words "extreme or high" in both the heading to Table 1-4 and in the sub-heading to the third, fourth and fifth columns, noting that it should be "assets at risk from wave run-up and over wash" - that is, any level of risk. Despite this concession, Mr Lazarus submitted that the table was merely a summary of information contained elsewhere within the CZMP and that the error had no substantive impact as it was not a jurisdictional error, nor did it relate to any of the pleaded claims brought by the applicant. Mr Lazarus submitted that there was no requirement in the Guidelines or otherwise for any separate identification of assets which were at extreme or high risk and whether this is construed as a factual error or an administrative slip, it could not have the effect of invalidating the CZMP in circumstances where it was a mere transposition of information error. Mr Lazarus noted that nothing turned on the content of Table 1-4 because the substantive actions in the plan related to the maps in Appendix F and the detailed asset risk registers in the Options Study.
[21]
Ground 2 - non-compliance with the CP Act and Guidelines
Council submits that each of the requirements of the Guidelines was satisfied by the information in the tables and maps contained within the CZMP and its companion document, the Options Study. Although not determinative, Council submits that the Court ought to have regard to the conclusions of both the Panel and the OEH in this regard.
In relation to the Options Study, Mr Lazarus made cascading alternative submissions and referred to Chisholm v Pittwater Council [2001] NSWCA 104 ('Chisholm') at [37], [41]-[42], and submitted that the Options Study was part of the CZMP, or it was incorporated into the CZMP by reference, or the fact that some of the required content of the CZMP was contained within the Options Study (and not the CZMP) did not affect the validity of the CZMP. Mr Lazarus submitted that the Options Study was Appendix A to the CZMP; the Minister was informed that it was to be an appendix; and the Minister had the Options Study before her when she certified the plan. Mr Lazarus submitted that the Options Study was also considered by the Panel when it gave advice to the Minister. Mr Lazarus further contended that there were numerous cross-references to the Options Study in the CZMP, and that the CZMP could not be understood as a discrete document without reference to the Options Study. As such, Mr Lazarus submitted that whether the Options Study was considered part of the CZMP, or whether it was incorporated by reference therein, the Minister was entitled to certify the plan by reference to whether the requirements in the Guidelines had been satisfied in either the CZMP or the Options Study.
In relation to the Guidelines, Mr Lazarus again made cascading alternative submissions. Mr Lazarus submitted that strict compliance was not mandatory; that the relevant parts of the Guidelines said to have been breached were not mandatory; that there was full compliance with the Guidelines; that there was substantial compliance with the Guidelines; or that any breach was not such as to lead to invalidity.
Council submits that the applicant's criticism that it did not have "current" information does not carry any weight in circumstances where the Panel concluded that "[r]ecently updated photogrammetry and further investigations using ground-penetrating radar (GPR) have improved the robustness of the findings of that hazard definition work for these beaches" (see [28] above). Council contends that the requirements in the Guidelines for the relevant hazards to be assessed "under current conditions" does not mandate that the relevant scientific information must be absolutely up to date as at the date the plan is submitted for certification.
[22]
Ground 3 - deficiency of information for the CZMP
Council submits that deficiency of information is not itself a recognised ground of challenge to an administrative decision and that the criticisms of the WP 2011 Report are no more than complaints concerning the sufficiency of scientific work done to date. Council denies that the WP 2011 Report was not a proper basis upon which to formulate the hazard lines that subsequently were incorporated into the CZMP, and Council submits that the applicant has not adduced admissible evidence to support its argument. In any event, Council contends that it could not be suggested that there was readily available material which could have been easily deployed to fill any "gaps" in the scientific knowledge of the issues of the relevant coastal hazards.
Council notes that the expert advisory Panel did not consider that any such further investigative enquiries needed to be made as a precondition to the making of the CZMP. Council submits that the Panel recommended a number of further matters be included in the CZMP, and that there is no issue that those matters were included in the final version. Council submits that the Panel recommended an overall reassessment of the coastal processes having regard to "the information available" in a number of different reports and publications and it was not suggested that Council needed to commission any further expert reports itself.
[23]
Ground 4 - the "multiplication procedure" developed for the CZMP converted an "unlikely" risk of hazard to one of "extreme or high risk" in the absence of probative evidence
Council submits that the applicant's algorithm argument fails to understand the nature of the assessment undertaken by Council. Council notes that s 3.2.1 of the Guidelines provides that the table for each hazard in the CZMP "should be used to assess the relative risks associated with these hazards, based on likelihood and consequences" (emphasis added). That is, Council contends that the approach mandated by the Guidelines is that the risk analysis undertaken in the plan is not only to be based upon the likelihood of occurrence of various hazards, but also their consequence.
While Mr Hutley defined "risk" to mean the percentage chance of an event occurring, Mr Lazarus submitted that "risk" was a defined term in the Glossary in the Guidelines and meant "the effect of uncertainty on objectives, usually characterised by reference to potential hazards and their consequences, or a combination of consequences of a hazard and the associated likelihood of occurrence" (see [52] above). Mr Lazarus submitted that this definition removed the foundation for the algorithm argument at the centre of the applicant's case.
Council submits that there is a lengthy discussion in the Options Study of the consequences of the identified coastal hazards and that the Options Study explains what the applicant refers to as the "multiplication procedure". As such, Council submits that if the likelihood is relatively low but the consequence is potentially significant, the application of the risk matrix suggests that a particular hazard considered to be unlikely as at the present time may be assessed as "high" or "extreme" risk. Council says that that is the approach it has taken and it did not receive any criticism in that respect from the Panel.
In light of the above, Council submits that ground 4 amounts to an attack on the merits of Council's risk management approach which was not only authorised by the Guidelines, but mandated by them.
[24]
Applicant's reply
The applicant makes the following submissions in relation to a number of factual matters raised by the respondents:
1. neither respondent seeks to justify Tables 1-3 and 1-4 as a reasonable or rational assessment of the degree or likelihood of the coastal hazards, and as Council now admits errors in respect of Blueys Beach, even applying its own methodology of hazard and consequences, relief should be granted on that basis alone;
2. the latest advice to Council in the Options Study was that beach erosion and shoreline recession at the Beaches was "unlikely" at present, 2060 and 2100 and the Beaches were stable, and this assessment was excluded from the CZMP, although it was clearly required by the Guidelines;
3. the maps referred to by Council attached to the Options Study as Annexure F are not referred to in the CZMP and the maps do not depict residential property at the Beaches as subject to extreme or high likelihood of erosion or inundation in the immediate term; and
4. Council concedes that Tables 1-3 and 1-4 reflect a combined assessment for residential properties and all other assets both of the degree or likelihood of the hazard and the dollar value and other values of the consequences if the hazard were to occur and the asset entirely lost. Under this process, assets assessed as being exposed to an unlikely likelihood of a hazard were categorised as extreme or high risk based on the assessed consequences of a loss of the whole asset no matter how unlikely.
The applicant submits that assessments of the hazards as "unlikely" (and "stable") in the Options Study do not appear anywhere in the CZMP and that in the CZMP, the only assessments given are immediate extreme or high risk for the present, 2060 and 2100 in Tables 1-3 and 1-4.
Despite Council's reliance on the hazard maps at Appendix F of the Options Study, the applicant submits that there is no reference to these maps in the CZMP itself and the reader is neither directed to them, nor made aware of them. The applicant submits that the maps depict the likelihood or degree of the hazards; and the application of "a matrix to determine the level of risk from the combination of likelihood and consequence ascribed to the different assets".
The applicant contends that the maps in Annexure F which relate to the Beaches do not show any extreme or high immediate likelihood of coastal hazard in respect of erosion and recession or coastal inundation. In fact, the applicant submits that the maps depict the likelihood of a hazard between nil or "unlikely" and "rare", suggesting there is no basis for the categorisation of any of the assets at the Beaches listed in Tables 1-3 and 1-4.
[25]
Consideration
The essence of the applicant's case as presented at the hearing is that there was no rational or proper basis for Council and the Minister preparing, adopting and certifying respectively the CZMP which included the assessment of coastal hazards at the Beaches as immediate, extreme or high. The applicant contends that the evidence available to Council was that these hazards were "unlikely". The applicant says that this resulted in a CZMP that did not comply with the CP Act or the Guidelines, and the decisions to bring the CZMP into force were each unreasonable, irrational and without justification.
As the Minister's primary submissions dealt with jurisdictional fact, apart from ground 4, the Minister did not separately deal with the applicant's other pleaded grounds. As such, I shall first consider whether the impugned decisions are reviewable, then I will consider the specific grounds raised. Given the overlapping nature of the grounds, I intend on dealing with grounds 2 and 3, relating to non-compliance with the CP Act and Guidelines and deficiency of information for the CZMP; and then I will consider grounds 4 and 1, relating to no rational basis for the risk assessment in Tables 1-3 and 1-4 (including the "algorithm argument") and unreasonableness.
The following matters arise for the Court's consideration:
1. Whether the impugned decisions are reviewable;
2. Whether there was non-compliance with the CP Act and Guidelines;
3. Whether there was a deficiency of information for the CZMP;
4. Whether there was a rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP (the "algorithm argument");
5. Whether the impugned decisions were unreasonable; and
6. If any of the foregoing questions are answered in the affirmative, whether the Court should exercise its discretion to grant the relief sought by the applicant.
[26]
Whether the impugned decisions are reviewable
The decisions made by the Minister and Council respectively to certify and then to adopt the CZMP, and the antecedent decisions of Council, are legally unassailable except where it can be established that the relevant decision-maker made a legal error which was "jurisdictional" in the requisite sense. Whether those decision-makers made an incorrect decision, or one that lacked merit, is irrelevant to my consideration.
The distinction between merits review and judicial review was recently summarised by McColl JA (with whom Macfarlan JA agreed) in Wattie v Industrial Relations Secretary (No 2) [2018] NSWCA 124 at [127]-[129] (footnotes omitted):
[127] The "merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." Thus, the court's supervisory role should not become a review of the merits of an exercise of discretionary power. As is frequently emphasised, a court "should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."
[128] Accordingly, there are practical restraints on judicial review. Judicial review is not a basis for undertaking a complete re-evaluation of the findings of fact or a reconsideration of the merits of the case. It is concerned with whether the decision-maker's decision was one which that person was authorised to make, rather than "an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made." Thus, "'mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions' is not a sufficient reason for overturning a judicial decision upon a review."
[129] Rather, in order to demonstrate jurisdictional error, it is necessary to demonstrate error on the decision-maker's part. Such error may be identified, for example, in a failure properly to construe the statute investing, in this case, the [decision-maker] with jurisdiction, such as to lead the [decision-maker] to misunderstand the nature of the jurisdiction he was exercising. It may also be identified if, in giving a decision in exercise of his jurisdiction or authority, the [decision-maker] applied "a wrong and inadmissible test", misconceived his duty, failed to apply himself to the question the law prescribed, or misunderstood the nature of the opinion he had to form. Upon identification of such error, a decision will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised.
[27]
Whether there was non-compliance with the CP Act and Guidelines
For context, some further recitation of the statutory scheme and my findings (largely based on uncontroversial evidence) regarding the conduct purportedly undertaken pursuant thereto is necessary. In summary, the statutory scheme leading to the Minister's certification of the CZMP is relatively clear and provides that:
1. a council is to prepare a draft coastal management plan in accordance with the Guidelines: s 55D(1);
2. the council is to give public notice of the place, dates and times during which the draft may be inspected by the public, and council is required to publicly exhibit the draft plan in accordance with the notice: s 55E;
3. the council is to consider all submissions made during the period of public exhibition, and as a result of those submissions, the council may amend the draft coastal zone management plan: s 55F;
4. the council must then consult with other public authorities in a manner specified in the Minister's guidelines: s 55G(2);
5. the council is to submit the draft coastal zone management plan to the Minister for "certification": s 55G(1);
6. before certifying the draft coastal zone management plan, the Minister may refer the plan to the Panel for "advice" (s 55G(3)), and the Panel may recommend changes to the plan: s 55G(4)(b);
7. if the Minister has referred the plan to the Panel for advice and the Panel has recommended changes to the plan, the Minister may return the plan to the council and direct that the council amend and resubmit the plan with the recommended changes: s 55G(4)(b);
8. a council required to amend and resubmit a plan with recommended changes must do so within 90 days after being directed to do so by the Minister (s 55G(5)), and the Minister may thereafter certify that the draft coastal zone management plan submitted to the Minister has been prepared in accordance with the requirements of the CP Act: s 55G(4)(a);
9. if the Minister certifies that the draft coastal zone management plan has been prepared in accordance with the requirements of the Act, council is to make the plan: s 55H(1); and
10. the council is to thereafter publish it in the Gazette and the plan takes effect on that date or at any date specified in the plan for its commencement: ss 55H(1) and 55H(2).
It is clear that the role of Council is to prepare a draft CZMP in accordance with the Guidelines, to amend and resubmit the plan with the changes recommended by the Panel and thereafter to make the plan and publish it in the Gazette once it has received certification. I accept that Council has no discretion in these matters other than in respect of the preparation of the initial plan, and Council's conduct in the preparation thereof is now to be considered in light of the late amendment by the applicant to challenge the antecedent decisions. As far as Council is concerned, it is clear that the challenge to the ultimate making of the plan by Council hinges upon the applicant successfully arguing that the Minister's certification was invalid.
[28]
Whether there was a deficiency of information for the CZMP
The gravamen of the applicant's position is that the draft CZMP relied upon older reports (including the WP 2011 Report) which were out of date and insufficient to satisfy the requirements of either the CP Act or the Guidelines, and that Council (if not the Minister) would have or should have been aware of these "limitations" since at least 2010. In these circumstances, the applicant submits that the Minister did not have before her, at a minimum, materials which supported a conclusion that the CZMP had been prepared in accordance with the CP Act and Guidelines, particularly in relation to the assessment and characterisation of the degree of coastal hazards at the Beaches. Put simply, and noting the overlap between grounds 2 and 3, the applicant submits that there was no evidence that would enable the Minister to form the view that there had been compliance with either the CZMP or the Guidelines, particularly in light of the fact that WorleyParsons had recommended that further material be obtained.
Although I have real doubt as to whether this ground is a recognised ground of challenge to an administrative decision, I consider that the applicant's complaints simply relate to the adequacy and sufficiency of work that may have been done prior to the finalisation of the CZMP. To the extent that this ground is available, a matter about which I have doubt, I do not consider it to be compelling or persuasive. I have made findings above in relation to what I consider was required by the Guidelines and the manner in which the requirements therein have been addressed, and I adopt that analysis in considering this ground. To the extent that this ground is rooted in concerns regarding the sufficiency or otherwise of the WP 2011 Report, it is notable that that report, along with further later reports (the GPR Reports), informed the draft CZMP.
Further, the Panel, in undertaking what it described as a "thorough review" of the draft CZMP, also considered further material in addition to the WP 2011 Report (noted at [28] above) and, whilst indicating that the draft plan was "particularly comprehensive", noted as follows:
...Recently updated photogrammetry and further investigations using ground-penetrating radar (GPR) have improved the robustness of the findings of the hazard definition work for these beaches...
[29]
Whether there was a rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP
In considering whether there was a rational basis for the risk assessment in Tables 1-3 and 1-4 of the CZMP, I will consider whether Council and the Minister had before them any rational or probative basis or justification for the categorisation in the CZMP of the degree of hazards as "extreme or high risk" of coastal erosion or recession at the present day for 11 unidentified properties at Boomerang Beach; and the degree of hazards as "extreme or high risk" of wave runup and overwash at the present day for 21 unidentified properties at Blueys Beach. I will then consider whether Council and the Minister had before them any rational or probative basis or justification for the decisions to make and certify the CZMP with those natural hazard characterisations.
The applicant submits that Tables 1-3 and 1-4 are not only non-compliant with the Guidelines, but are in error, are not a reflection of the assessment of likely hazards, and do not provide a rational basis for the CZMP because: first, Council has deployed a process which is contrary to that contemplated by the CP Act and Guidelines which emphasise the need for an assessment of the hazards sufficient to inform decisions; second, Council has embarked on its own specially developed process for the CZMP using guidelines for corporations to manage risk; third, Council has made errors in recording the results of that assessment in Tables 1-3 and 1-4 which are not consistent with the maps which Council now says are the most relevant; fourth, combining the assessment of hazard and the consequences if an unlikely event were to occur into a single rating does not provide a rational basis to develop coastal management action plans, and managing an area zoned as immediate to extreme high risk is very different from managing an area zoned low, rare or unlikely risk; and, fifth, the Guidelines emphasise the need for an accurate assessment of the hazard present in the area sufficient to make informed decisions and specify how this is to be done, and Council has not complied with that core requirement.
As I have noted above, the Coastal Hazard Risk Maps are Appendix F to the Options Study, and it is clear that these maps identify areas at the Beaches subject to varying levels of hazards, including erosion and recession and coastal inundation for various timeframes. In relation to each of the Beaches, the maps are entitled "erosion and recession risk map immediate planning horizon", "erosion and recession risk map 2060 planning horizon" and "erosion and recession 2100 planning horizon".
[30]
Whether the impugned decisions were unreasonable
On the applicant's case, the Minister either had no evidence before her because the Options Study was not part of the CZMP, or Council adopted a bespoke matrix which had a multiplication feature unknown to risk management, science or society such that there was no justification for the Minister and Council to prepare, certify and adopt the CZMP. That is, the applicant submits that each of the impugned decisions which brought about the adoption of the CZMP, and the categorisation of the unidentified properties as "extreme or high risk", was so unreasonable that no decision-maker acting reasonably would have made those decisions.
The legal unreasonableness ground of judicial review, which is specifically raised in grounds 1 and 4, is frequently called Wednesbury unreasonableness in reference to the decision of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 682-683.
When a discretionary power is statutorily conferred, the power must be exercised reasonably for the legislature is taken to have intended that the discretion be so exercised: Kruger v Commonwealth of Australia; Bray v Commonwealth of Australia (1997) 190 CLR 1; [1997] HCA 27 at 36, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at 650 and Li at [23]-[29], [63]-[76], [90].
The bar is set high to establish legal unreasonableness, as confirmed by French CJ in Li at [28], [30]:
[28] [The concept of unreasonableness] reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
…
[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." (Citations omitted)…
…
[31]
Severance
While the Court received detailed submissions in relation to severance, given my finding that the applicant has not made out any of its grounds for relief, I do not consider it necessary or appropriate to address severance.
[32]
Conclusion
As the applicant has not established any of its grounds for relief, the applicable order is that the Class 4 application be dismissed. As the usual course in Class 4 proceedings is that costs follow the event, unless an application is made by notice of motion for any alternate order within seven weeks (on or before 11 February 2020), I will order that the applicant pay the respondents' costs.
[33]
Orders
The Court orders that:
1. The proceedings are dismissed.
2. Unless an application is made by notice of motion before 11 February 2020 for an alternate order, the applicant is to pay the respondents' costs of the proceedings.
[34]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 December 2019
Parties
Applicant/Plaintiff:
Boomerang & Blueys Residents Group Inc
Respondent/Defendant:
New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50
Parramatta City Council v Pestell (1972) 128 CLR 305; [1972] HCA 59
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287
South Australia Housing Trust v Development Assessment Commission (1994) 63 SASR 35; (1994) 85 LGERA 92
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594
Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Wattie v Industrial Relations Secretary (No 2) [2018] NSWCA 124
Texts Cited: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters)
Category: Principal judgment
Parties: Boomerang & Blueys Residents Group Inc (Applicant)
New South Wales Minister for the Environment, Heritage and Local Government (First Respondent)
MidCoast Council (Second Respondent)
Representation: Counsel:
N Hutley SC with R White (Applicant)
S Duggan SC with N Hammond (First Respondent)
J Lazarus (Second Respondent)
Judgment
Before the Court is a Class 4 application filed by Boomerang & Blueys Residents Group Inc ('applicant') seeking declaratory relief primarily in relation to the certification by the first respondent, the New South Wales Minister for the Environment, Heritage and Local Government ('Minister') and the subsequent adoption by the second respondent, MidCoast Council ('Council') of the Great Lakes Coastal Zone Management Plan ('CZMP'). The CZMP was certified by the Minister on 16 November 2017, adopted by Council on 20 December 2017, and gazetted on 29 December 2017.
On the first day of the hearing, I granted leave to the applicant pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) to rely upon the amended summons attached to its notice of motion filed 10 April 2019: see Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government [2019] NSWLEC 201.
On 24 November 2015, Council passed a resolution confirming that the final "Great Lakes Coastal Zone Management Plan: Options Study" as amended was adopted and had informed the preparation of the CZMP, and that the final draft CZMP as amended (being the October 2015 CZMP) was adopted for lodgement and certification by the Minister for the Environment.
In December 2015, BMT WBM Pty Ltd finalised the "Great Lakes Coastal Zone Management Plan: Options Study" ('Options Study'), referred to as a "companion document" to the CZMP on p 10 thereof. The Options Study outlined the management options for treating risks to assets and land from erosion, recession and coastal inundation on Council beaches in the Great Lakes area. The Options Study presented the risk assessment for coastal hazards, then risk treatment options to manage coastal hazards for each asset at intolerable risk by 2100. It included the relevant legislation, a summary of community survey results, submissions and responses on the draft CZMP, a summary of coastal hazards, various coastal management options, and coastal hazard risk maps. The Options Study stated that it comprised the following steps in the process being followed to prepare the CZMP:
…
(3) Adopt a Risk Management Approach to assessing the level of risk from coastal hazards (now and at 2060 and 2100);
(4) Identify and evaluate management options to treat the priority coastal risks, considering the technical and financial viability and the social, economic, aesthetic, recreational and ecological costs and benefits of the options, and prepare a Coastal Risk Management Study documenting the recommended management options;
(5) Prepare a draft Coastal Zone Management Plan consisting of the best combination of options for reducing the risks from coastal hazards and achieving the plan objectives, including an implementation schedule to implement the preferred actions;
(6) Review the draft Plan through public exhibition and consultation;
…
On 23 December 2015, Council submitted the draft CZMP to the Minister for Planning, Rob Stokes for certification. That letter stated, inter alia:
Council completed a final draft of the Great Lakes CZMP in October 2015. It was tabled for Council's consideration and adoption at the Ordinary Meeting held on Tuesday, 24 November 2015. It is noted that the final CZMP now includes the Options Study at Appendix A.
Inter alia Council resolved at the above Meeting to:
Confirm that the final Great Lakes Coastal Zone Management Plan - Options Study, as amended, is adopted and has informed the preparation of the Great Lakes Coastal Zone Management Plan (CZMP).
Confirm that the final Great Lakes Coastal Zone Management Plan, as amended, is adopted for lodgement and certification by the Minister for the Environment.
Great Lakes Coastal Hazards Study was completed by SMEC Australia Pty Ltd in October 2013 and was subsequently adopted by Council for use in the revision of the Coastal Risk Planning Area map. Along with additional geotechnical investigation undertaken at Boomerang Beach and Blueys Beach, the SMEC Study informed the development and prioritisation of actions presented within the Great Lakes CZMP - Options Study. The Options Study was directly used in the completion of the CZMP proper and appears as Appendix A of that final document.
On 5 February 2016, Minister Stokes wrote to the New South Wales Coastal Panel ('Panel') and the Office of Environment and Heritage ('OEH') referring the draft CZMP and requesting advice regarding the adequacy of the CZMP.
On 30 March 2016, the Panel wrote to Minister Stokes recommending that the Minister proceed with the certification of the CZMP and noting:
…The Panel has considered the Draft CZMP, including a thorough review of the CZMP itself, forming its opinion based on the following furnished documents:
• Great Lakes Coastal Zone Management Plan (Version: 3, dated 22 December 2015);
• Great Lakes Coastal Zone Management Plan - Options Study (Version: 3, dated December 2015); and
• OEH Regional Operations Group assessment of draft CZMP against the statutory requirements of the Coastal Protection Act 1979 and minimum requirements of the Guidelines for Preparing Coastal Zone Management Plans (2013).
The submitted plan is particularly comprehensive, providing a practical, adaptive approach to managing the coastline hazards along the Great Lakes coastline into the future. The Plan provides a good balance between managing threats posed to residential development, improving outcomes for the natural environment, enhancing amenity and public access whilst also putting in place a range of strategies to manage public infrastructure assets within the dynamic confines of the coastal zone.
…
The Panel is however mindful that there remains an incomplete understanding of the overall sediment budget underpinning the coastal process of the region and that it is highly desirable this be resolved. Along with the limitations of this incomplete understanding is the as yet unresolved matter of the most appropriate, and viable management strategy for Blueys and Boomerang beaches. Recently updated photogrammetry and further investigations using ground-penetrating radar (GPR) have improved the robustness of the findings of the hazard definition work for these beaches. The reconsideration of available geological data to underpin such understandings is, in the opinion of the Panel, a more urgent and beneficial imperative than has been prioritised to date within the furnished plan. Further, although the CZMP recognises there is a need to determine a detailed management strategy for dealing with the issues affecting development at these beaches the Panel believes this needs to be more clearly and specifically expressed in the CZMP along with a timetable for resolution.
…overall the Coastal Panel was satisfied with the proposed approach and would recommend the Plan as being suitable for certification contingent on the Plan being re-submitted with some revisions concerning more specific detail and clarity around the studies to improve understanding of the overall sediment budget of the region and a specific program for the development of a detailed management strategy for Blueys and Boomerang Beaches….
On 9 June 2016, the Minister for Planning wrote to Council regarding amendments to the CZMP suggested by the Panel and endorsing the CZMP subject to revisions to address the Panel's advice.
On 31 August 2016, Council wrote to the Minister for Planning enclosing the CZMP which included amendments to address the Panel's advice. The amended CZMP was thereafter provided to the OEH for consideration of the amendment made by Council to reflect the Panel's advice ('August 2016 CZMP').
On 28 June 2017, representatives of the applicant met with the then Minister for the Environment, Heritage and Local Government, Gabrielle Upton; Stephen Bromhead MP; and Sharon Molloy, Director of Hunter Central Coast at the OEH.
On 16 November 2017, the Panel advised Minister Stokes that the revised CZMP was suitable for certification.
On 16 November 2017, Minister Upton certified the August 2016 CZMP. In a letter to the General Manager of Council, Minister Upton noted:
I am pleased to certify the CZMP in accordance with section 55G of the Act…
On or around 2 December 2017, the August 2016 CZMP was uploaded to Council's website.
On 20 December 2017, Council made the following resolution:
Council adopt (make) the certified Great Lakes Coastal Zone Management Plan August 2016 in Attachment A to this report.
Council forward the adopted Great Lakes Coastal Zone Management Plan to Parliamentary Counsel for notification in the Government Gazette, as per direction from NSW Minister for the Environment in Annexure A in this report.
On 29 December 2017, NSW Government Gazette No 141 was published with a Council Notice stating:
Mid-Coast Council has prepared and adopted the Great Lakes Coastal Zone Management Plan in accordance with section 55 of the Coastal Protection Act 1979. The Plan was duly certified by the Minister for the Environment, The Honourable Gabrielle Upton on the 16th November 2017.
…
Relevantly, in s 4 of the CP Act, the following terms are defined:
4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
…
coastal hazard means the following:
(a) beach erosion,
(b) shoreline recession,
(c) coastal lake or watercourse entrance instability,
(d) coastal inundation,
(e) coastal cliff or slope instability,
(f) tidal inundation,
(g) erosion caused by tidal waters, including the interaction of those waters with catchment floodwaters.
Coastal Panel means the NSW Coastal Panel established under Part 2A.
…
coastal zone means:
(a) the area within the coastal waters of the State as defined in Part 10 of the Interpretation Act 1987 (including any land within those waters), and
(b) the area of land and the waters that lie between the western boundary of the coastal zone (as shown on the maps outlining the coastal zone) and the landward boundary of the coastal waters of the State, and
(c) the seabed (if any) and the subsoil beneath, and the airspace above, the areas referred to in paragraphs (a) and (b).
Note. The coastal zone consists of the area between the western boundary of the coastal zone shown on the maps outlining the coastal zone and the outermost boundary of the coastal waters of the State. The coastal waters of the State extend, generally, to 3 nautical miles from the coastline of the State.
…
public authority means a Minister of the Crown of the State, a department or instrumentality of the State, a council and any other public or local authority constituted by or under any Act, and includes any prescribed body.
…
Section 6 of the CP Act described "Coastal Authorities" as follows:
6 Coastal Authorities
(1) For the purposes of this Act, each of the following is a Coastal Authority:
(a) the Minister,
(b) the Minister administering the Crown Lands Act 1989,
(c) a council whose area, or part of whose area, is included within the coastal zone or whose area includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries,
…
(2) A Coastal Authority:
(a) may exercise the functions of an authorised officer, and
(b) when exercising those functions, has all the immunities of an authorised officer.
…
The constitution and functions of the Panel are described in ss 12 and 13 of the CP Act as follows:
12 Constitution of NSW Coastal Panel
(1) There is to be a NSW Coastal Panel.
(2) The Coastal Panel is to consist of 7 members appointed by the Minister of whom:
(a) one is to be a person nominated by the Chief Executive, and
(b) one is to be a person nominated by the Secretary of the Department of Planning and Environment, and
(c) three are to be nominated by the Local Government and Shires Association of New South Wales, and
(d) one is to be a person nominated by the Secretary of the Department of Industry, Skills and Regional Development, and
(e) one is to be appointed by the Minister with the concurrence of the Local Government and Shires Association of New South Wales.
(3) The person appointed under subsection (2) (e) is to be the Chairperson of the Coastal Panel. The person appointed under subsection (2) (a) is to be the Deputy Chairperson of the Coastal Panel.
(4) A person appointed under subsection (2) (a)-(d) must have qualifications and experience relevant to coastal planning, coastal engineering, coastal geomorphology, coastal environmental management or estuary management.
(5) The Coastal Panel is a NSW Government agency.
Note. By virtue of section 13A of the Interpretation Act 1987, a NSW Government agency has the status, privileges and immunities of the Crown.
…
13 Functions of Coastal Panel
(1) The Coastal Panel has the following functions:
(a) to provide advice to the Minister on any matter referred to the Coastal Panel by the Minister relating to the coastal zone or otherwise in connection with the operation of this Act,
(b) to provide advice to local councils in relation to such other matters as the Minister determines and notifies to the Coastal Panel,
(c) such functions conferred or imposed on it by or under the Environmental Planning and Assessment Act 1979 relating to the granting of development consent,
(d) any other function conferred or imposed on it by or under this Act, the Environmental Planning and Assessment Act 1979 or any other Act.
(2) In exercising its functions, the Coastal Panel is to have regard to the objects of this Act.
(3) The Coastal Panel may delegate the exercise of any function of the Coastal Panel under this or any other Act (other than this power of delegation) to:
(a) any member of staff of the Office, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
…
Part 4A of the CP Act relates to coastal zone management plans and relevantly provided:
55A Minister to have regard to objects of Act
In exercising his or her functions under this Part, the Minister is to have regard to the objects of this Act.
55B Requirement for coastal zone management plans
(1) A council whose area, or part of whose area, is included within the coastal zone may, and must, if directed to do so by the Minister, make a coastal zone management plan in accordance with this Part.
…
(4) A coastal zone management plan may be made in relation to the whole, or any part, of the area included within the coastal zone.
(5) A council must, if directed to do so by the Minister, review the council's existing coastal zone management plan and make a new plan in accordance with this Part to replace the existing plan.
(6) A council required under this section to review its existing coastal zone management plan and make a new plan to replace that existing plan must do so:
(a) within 12 months after being directed to do so by the Minister, or
(b) within such longer period as may be agreed to by the Minister.
(7) If a council fails to comply with this section, the Minister may:
(a) review the council's existing plan and make a new plan to replace that existing plan, and
(b) recover from the council the costs of doing those things, and
(c) publish the new plan in the Gazette.
Such a new plan is taken to have been made by the council in accordance with this Part.
(8) For the avoidance of doubt, the Minister may give a direction under subsection (1) or (5) in relation to part of an area included within the coastal zone.
…
55C Matters to be dealt with in coastal zone management plans
(1) A coastal zone management plan must make provision for:
(a) protecting and preserving beach environments and beach amenity, and
(b) emergency actions carried out during periods of beach erosion, including the carrying out of related works, such as works for the protection of property affected or likely to be affected by beach erosion, where beach erosion occurs through storm activity or an extreme or irregular event, and
(c) ensuring continuing and undiminished public access to beaches, headlands and waterways, particularly where public access is threatened or affected by accretion, and
(d) where the plan relates to a part of the coastline, the management of risks arising from coastal hazards, and
(e) where the plan relates to an estuary, the management of estuary health and any risks to the estuary arising from coastal hazards, and
(f) the impacts from climate change on risks arising from coastal hazards and on estuary health, as appropriate, and
(g) where the plan proposes the construction of coastal protection works (other than temporary coastal protection works) that are to be funded by the council or a private landowner or both, the proposed arrangements for the adequate maintenance of the works and for managing associated impacts of such works (such as changed or increased beach erosion elsewhere or a restriction of public access to beaches or headlands).
…
55D Guidelines for preparation of draft coastal zone management plans
(1) A council is to prepare a draft coastal zone management plan in accordance with the Minister's guidelines.
(2) Without limiting the power of the Minister to determine the guidelines, the Minister may adopt as guidelines a manual referred to in section 733 (5) (b) of the Local Government Act 1993.
(3) The Minister is to ensure that notification of any guidelines is published in the Gazette.
(4) A copy of the Minister's guidelines must be available for public inspection on the Internet website of the Office.
55E Public consultation
After preparing a draft coastal zone management plan, the council is:
(a) to give public notice in a newspaper circulating in the locality of the place at which, the dates on which (comprising a period of not less than 21 days), and the times during which, the draft coastal zone management plan may be inspected by the public, and
(b) to publicly exhibit the draft plan at the place, on the dates and during the times set out in the notice.
55F Submissions
(1) During the period of public exhibition of a draft coastal zone management plan, any person may make a submission in writing to the council with respect to its provisions.
(2) The council must consider all submissions so made.
(3) The council may amend the draft coastal zone management plan as a result of the submissions.
55G Certification by Minister
(1) After considering any submissions, the council is to submit the draft coastal zone management plan to the Minister for certification under this section.
(2) Before submitting the draft coastal zone management plan to the Minister under subsection (1), the council must consult with other public authorities in the manner specified in the Minister's guidelines.
(3) Before certifying the draft coastal zone management plan submitted to the Minister under subsection (1), the Minister may refer the plan to the Coastal Panel for advice.
(4) The Minister may:
(a) certify, or refuse to certify, that a draft coastal zone management plan submitted to the Minister has been prepared in accordance with the requirements of this Act, or
(b) if the Minister has referred the plan to the Coastal Panel for advice under subsection (3) and the Coastal Panel has recommended changes to the plan - return the plan to the council and direct the council to amend and resubmit the plan with the recommended changes.
(5) A council required to amend and resubmit a plan with recommended changes must do so:
(a) within 90 days after being directed to do so by the Minister, or
(b) within such longer period as may be agreed to by the Minister.
…
55H Gazettal and commencement of coastal zone management plans
(1) If the Minister certifies that a draft coastal zone management plan has been prepared in accordance with the requirements of this Act, the council is to make the plan and publish it in the Gazette.
(2) A coastal zone management plan takes effect on the date on which it is published in the Gazette or, if a later date is specified in the plan for its commencement, on the later date so specified.
…
Division 2 in Pt 4A of the CP Act relates to enforcement and provided:
55K Breach of coastal zone management plan: offence
(1) A person must not carry out work for the purpose, or that has the effect, of preventing or remediating beach erosion, or for protecting property affected or likely to be affected by beach erosion, unless the work is:
(a) in accordance with the relevant coastal zone management plan, or
(b) development for which consent has been granted or exempt development under the Environmental Planning and Assessment Act 1979 or an approved project within the meaning of Part 3A of that Act or approved State significant infrastructure within the meaning of Part 5.1 of that Act, or
(c) temporary coastal protection works.
Maximum penalty: 4,500 penalty units (in the case of a corporation) or 2,250 penalty units (in any other case).
…
55L Breach of coastal zone management plan: restraint
(1) The Minister or a council may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of a coastal zone management plan.
(2) If the Land and Environment Court is satisfied that a breach of a coastal zone management plan has been committed or that a breach of a coastal zone management plan will, unless restrained by an order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(3) The functions of the Land and Environment Court under this section are in addition to and not in derogation of any other functions of the Court.
(4) In this section, a breach of a coastal zone management plan means:
(a) a contravention of or failure to comply with a coastal zone management plan, and
(b) a threatened or apprehended contravention of or a threatened or apprehended failure to comply with a coastal zone management plan.
(5) This section does not apply to a breach of a coastal zone management plan that is an act or omission that is:
(a) development for which consent has been granted, exempt development or development that does not need consent under the Environmental Planning and Assessment Act 1979 or an approved project within the meaning of Part 3A of that Act or approved State significant infrastructure within the meaning of Part 5.1 of that Act, or
(b) temporary coastal protection works.
(6) Despite subsection (1), a council may not bring proceedings under this section to remedy or restrain a breach of a coastal zone management plan by the State or a NSW Government agency.
In July 2013, the Minister published the Guidelines pursuant to s 55D of the CP Act. The Guidelines were "intended to provide guidance to local councils, their consultants and coastal communities on the preparation of a Coastal Zone Management Plan (CZMP)" and, "specify the minimum requirements that are to be met when preparing a draft CZMP…in addition to the requirements in the Act": s 1.1. In essence, the Guidelines provide "a framework for preparing a CZMP, including matters that should be considered in CZMP preparation": s 1.1.
Relevantly, the Glossary in the Guidelines provides the following definitions:
'Coastal hazard' is defined in the Coastal Protection Act 1979 (section 4) and means the following:
a) beach erosion
b) shoreline recession
Coastal hazard c) coastal lake or watercourse entrance instability
d) coastal inundation
e) coastal cliff or slope instability
f) tidal inundation
g) erosion caused by tidal waters, including the interaction of those waters with catchment floodwaters.
… …
Consequence The outcome of a hazard which affects objectives.
… …
Hazard Occurrence or change in a set of circumstances relating to the physical aspects of coastal processes. To constitute a hazard, the change gives rise to a potential negative impact on life or property located within close proximity to the coastline.
… …
Risk Effect of uncertainty on objectives, usually characterised by reference to potential hazards and their consequences, or a combination of these. It is also expressed as a combination of consequences of hazard and the associated likelihood of occurrence.
… …
Further, Mr Lazarus disputed the applicant's interest in challenging the entirety of the CZMP and submitted that Mr Fox accepted (in his oral evidence) that there was no proposal for anything to happen at the Beaches other than the carrying out of further scientific work and a cost-benefit analysis on the basis of that further scientific work.
In light of the above, Council submits that the Court should reject the applicant's assertion that it has standing to challenge the relevant decisions and dismiss the proceedings.
The applicant submits that it is apparent from the many meetings over the years between representatives of the applicant and the government (including Council) that it has never been suggested that the applicant was not engaging on behalf of the local community, or that the applicant lacked standing. The applicant rejects the submission that its objectives are designed purely to protect the value of some individual members' properties and contends that its membership does not just comprise owners or tenants at the beachfront itself. Mr White's primary submission was that the applicant is a bona fide body interested in issues of general public interest, particularly in relation to the preservation and management of beaches and the coastal environment in the Great Lakes area (particularly the Beaches) and that so long as the Court found that the applicant had those interests, it did not matter that the applicant was partly motivated by the preservation of property rights. Mr White's further submissions may be summarised as follows:
First, the applicant's objects are concerned with engaging with all levels of government in relation to environmental and risk management issues. This includes formulating and responding to policy proposals with respect to environmental and risk planning issues and having "…the right to engage in litigation to advance the interests of residents, land and business owners, and operating generally".
Second, the applicant's activities on coastal environment issues are not confined to this CZMP and the particular issues the subject of these proceedings. The applicant's activities have extended over a long period and the evidence of Mr Fox shows that the applicant has, since 2011, undertaken a range of activities in relation to coastal environmental issues generally, as well as in relation to particular issues at the Beaches.
Third, objections and submissions have been made in relation to the relevant instrument both by the applicant and its solicitors during the exhibition period, including objections in relation to coastal management insofar as it affected the Great Lakes and Boomerang and Blueys area.
Fourth, the applicant is a member of the New South Wales Coastal Alliance ('NCA'), an alliance of community groups along the coastline of New South Wales dealing with coastal protection and coastal management issues.
Fifth, the protection and management of the coastal environment is an important environmental issue for the benefit of present and future generations as provided for in the objects in s 3 of the CP Act, particularly ss 3(a), (b), (c)(ii) and (f) (noted at [45] above) which recognise the importance of urban communities and their role in relation to issues concerning the coastal environment.
Sixth, public consultation is required by s 55E of the CP Act and the importance of consultation with the community is also recognised in the Guidelines (at ss 2.2.1 and 2.2.2 therein). Further, the Options Study also acknowledges that the stakeholders in a CZMP include visitors, residents, private and public landholders. In assessing coastal hazards, the authors of the Options Study refer to the "aesthetic, recreational, ecological, cultural and economic values" associated with the coastal zone, noting that a "loss of houses would affect the wellbeing of the local community in the short term". Mr White noted that the CZMP itself states that the Beaches are at the heart of the coastal villages involved and submitted that the applicant is and has been the association representing their interests for many years.
Seventh, the applicant brings attention to what it regards as a serious miscarriage and errors in relation to the CZMP for the communities at the Beaches. The applicant submits that it has been seeking to resolve issues relating to the CZMP and the protection of the coastal environment for several years and its efforts have failed in respect of the CZMP.
Eighth, the applicant contends that Tables 1-3 and 1-4 in the CZMP represent a misstatement of the degree or likelihood of hazard which are matters that affect the entire communities at the Beaches and are not limited to particular property owners of particular lots.
In summary, the applicant submits that it has undertaken the role of representing the community in relation to coastal protection issues for many years and it has standing to bring these proceedings, particularly in light of the objects of the CP Act.
While Australian Conservation Foundation is instructive, I am conscious of the fact that the plaintiff in that case had no private right or equity at risk. In those circumstances, the plaintiff had to show a "special interest" in the subject matter, as distinct from "a mere intellectual or emotional concern". While the plaintiff submitted that it held strong ideological interests, that its members had their own strong interests, that the objects of association covered the dispute, and that they had lodged objections in relation to the proposal, the Court ultimately rejected its claim for standing. The Court also emphasised that the incorporated body's interests were to be assessed apart from those of its individual members.
In Onus, the plaintiffs sought to protect their spiritual and cultural connections to significant relics. The plaintiffs were found to have standing, notwithstanding the fact that their connections were "accompanied by an emotional or intellectual concern". Stephen J noted at 42, that "the distinction between this case and the Australian Conservation Foundation case is not to be found in any ready rule of thumb, capable of mechanical application: the criterion of "special interest" supplies no such rule." He went on to state that determinations of standing "…involve in each case a curial assessment of the importance of the concern which a plaintiff has with the particular subject matter and of the closeness of that plaintiff's relationship to that subject matter".
I also note that in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [11.120], the learned authors state that while it is possible for a "…group to base a claim for standing to challenge an environmental concern on the alleged effect the decision may have on their commercial interests, this appears to be an increasingly rare basis for standing". The authors go on to state that under common law tests, "[r]esidents and landowners nearby to land threatened with environmental degradation are usually accepted to have standing…"
It is necessary in the present matter to determine the nature of the group and the interest claimed by it. I consider that whether or not the applicant has standing turns upon its connection to the decisions in question. I am conscious of the fact that in making this determination, the relevant interest of the applicant does not necessarily equate with the combined interests of its members, and that an incorporated association does not acquire standing merely because some of its members possess it: Australian Conservation Foundation at 53.
I note that the applicant's submissions in relation to coastal protection and coastal management are difficult to reconcile with its position in opposing the imposition of environmental controls contemplated by the CZMP. As such, I accept Council's submission that the principles relating to standing of representative associations (rather than environmental groups) are more relevant in the present circumstances. Despite this, it is clear from the evidence, including the affidavits of Mr Fox and Mr Hibberd, Mr Fox's oral evidence and Exhibit A containing emails and letters authored by the applicant to Ministers, Councillors and Council, and detailing the applicant's attendances at various meetings, that the applicant has been actively involved and concerned with coastal management in the Great Lakes area over several years.
In his affidavit, Mr Fox deposes:
In furtherance of its objects, BBRG has engaged in the following activities:
(a) Making submissions to the State Government and MidCoast Council (and formerly the Great Lakes Council) in relation to and behalf of its members;
(b) Meeting and liaising with representatives of the Government and local council;
(c) Obtaining peer reviewed reports as required;
(d) Representing the interests of the BBRG in the NSW Coastal Alliance (an alliance of similar groups located from Byron to Bega);
(e) Preparing and submitting objections to the Great Lakes Local Environmental Plan 2014 and to the Great Lakes CZMP; and
(f) Keeping BBRG members aware of developments.
Mr Fox also deposes that the applicant engaged expert engineering expertise to assist in preparing its consideration of the draft CZMP; the applicant holds annual general meetings, as well as regular committee meetings; and he is a co-convenor of the NCA.
Mr Fox further deposes that "…Council and the Minister have acknowledged, met with, and corresponded with the BRRG in relation to coastal planning at Boomerang and Blueys Beaches", and that he attended a meeting with representatives from WorleyParsons. Mr Fox notes that in April 2014, "following consultations with the BBRG", he wrote to the New South Wales Government outlining the applicant's concerns with the LEP 2014, and in September 2014, he attended a meeting with Minister Stokes, Stephen Bromhead MP, Robyn Parker MP and Richard Fry, a member of the applicant. Mr Fox deposes that he attended further meetings with Minister Stokes, representatives of the OEH and the NCA, and corresponded with Angus Gordon, the then Chair of the Panel.
Mr Fox notes that he also met with members of Great Lakes Council, representatives of BTM WBM, and members of the applicant to discuss the draft CZMP Options Study on exhibition. Mr Fox deposes that in February 2015, the applicant (although I note that the applicant was only incorporated in April 2015) submitted objections to the CZMP then on exhibition, and thereafter further engaged with the Great Lakes Council in relation to the status of the Beaches. Mr Fox notes that further meetings were held with members of the applicant, the OEH and Great Lakes Council, and that the applicant and others made 65 submissions in response to the March 2015 draft CZMP. Mr Fox deposes that the applicant corresponded with Minister Stokes in relation to the draft CZMP, and Mr Fox met with Minister Upton and Ms Molloy of the OEH in June 2017. Mr Fox deposes that in December 2017, he emailed Council on behalf of the applicant requesting that Council defer the decision of whether to approve the CZMP. Finally, Mr Fox notes that in December 2017, he attended a Council meeting and addressed Council, Ms Schiff, the Mayor and Councillor Roberts.
Although it was suggested to Mr Fox in cross-examination that these proceedings were commenced to protect the value and security of all properties at the Beaches, he gave the following evidence (Tcpt, 16 April 2019, p 101(3-4)):
Q. It's all about adverse impacts on the value of property. Do you agree?
A. No, it's the adverse impact on the total community.
In response to Mr Lazarus putting that the applicant had not made any submissions to the draft CZMP, in re-examination, Mr Fox was taken to correspondence including an email he wrote (with his signature, being "Chair Boomerang & Blueys Residents Group Inc.") to the General Manager of the Great Lakes Council dated 15 May 2015 attaching the applicant's submission and objections to the draft CZMP and associated documents, and Mr Fox gave evidence that the correspondence was a document that he, as president of the applicant or as part of the committee of the applicant, instructed the applicant's solicitors to write as a submission to the draft CZMP.
Mr Hibberd made detailed submissions to Council including a presentation in September 2015 in relation to the then draft CZMP which included concerns that the WP 2011 Report was an "inadequate basis" for the CZMP particularly because it was a hazard definition study only and ignored existing regional data which Mr Hibberd brought to the attention of Council. Mr Hibberd requested that Council amend the LEP 2014 by deletion of the Boomerang and Blueys Coastal Risk Planning Map CRA_012A and defer the draft CZMP "until sufficient information is available to proceed". Further, Mr Hibberd deposes that in January 2017, he attended a meeting with Mr Fox, Steve Papadopoulos, a member of the applicant, the then Chair of the Panel and Minister Stokes.
While I consider that the determination of standing at common law is, in the present matter, attended with considerable difficulty, I have concluded that the applicant does have standing. My reasons may be shortly stated.
The extent and degree of the applicant's engagement in relation to matters of public interest is clear from its membership of and participation, through Mr Fox, at various teleconferences of the NCA. I also find that the applicant's interests are closely connected with the impugned decisions in the present matter.
There is no doubt that the applicant has had consistent and historical concerns in relation to the treatment of the hazards at the Beaches. The evidence shows that the applicant and its representatives have consistently maintained such concerns. It is clear that the applicant (and the body known as Boomerang & Blueys Residents Group) has been providing commentary and submissions to Council and at least earlier to Minister Stokes for some period of time. Adopting the principles and the evidence summarised above, I accept the applicant's submissions and find that the applicant's various engagements and activities demonstrate that not only did individual members have an interest in the matter, but that the incorporated association did in the requisite sense. In reaching this conclusion, I have assessed the importance of the concern which the applicant has with the subject matter of these proceedings, and the closeness of the applicant's connection to the impugned decisions. The nature of the applicant and the interest claimed is sufficient to satisfy me that the applicant possesses a "special interest" insofar as it is relevant, and it follows that the applicant has standing.
Finally, while I do not consider the applicant to be a "peak environmental organisation" in the sense considered in North Coast Environmental Council, in light of the evidence summarised above, the applicant is not a "mere busybody" and is well placed to put forward a viewpoint.
The applicant submits that these are serious matters in circumstances where the CZMP provided that based on those categorisations, planning controls would be imposed and Council could take other coastal management steps.
As considered in further detail below, the applicant submits that:
1. there was no evidence or other probative material to support the existence of a "coastal hazard" to the private properties on the dune barrier at the Beaches;
2. each decision-maker failed to have regard to the fact that the study comprised in the WP 2011 Report was limited, based on earlier historical information and did not reflect the current position;
3. each decision-maker failed to take the "legally necessary step" of commissioning further research to update the WP 2011 Report for the purpose, inter alia, of seeking to identify any real hazards to ensure compliance with s 55D(1) of the CP Act;
4. each decision-maker failed to have regard to the assessment in the Options Study that coastal hazards were "unlikely" in the "present timeframe", the conclusion of WorleyParsons that there were no immediate hazards at Blueys Beach and the "known fact" that the properties at the Beaches had not been affected by any coastal hazards in 2010 or thereafter;
5. the CZMP did not comply with s 55D(1) of the CP Act or the Guidelines in respect of the categorisation of present natural hazards at either of the Beaches; and
6. the decision of the Minister to certify the CZMP was in jurisdictional error.
The applicant submits that if the Minister's decision to certify is found to be invalid, then the CZMP should be set aside in whole or in part in order to remedy the failures set out below.
The applicant contends that the only documents the Minister had before her when certifying the CZMP were: a briefing note styled "Briefing Note to the Minister for the Environment and Heritage for Approval"; and three documents annexed thereto, being the Panel's advice to the Minister on the revised CZMP; a summary of the OEH's assessment of the revised CZMP against the Panel's requirements for certification; and a letter to Council from the Minister.
The applicant submits that none of the documents before the Minister addressed the issue of the existence or degree of present day coastal hazards at the Beaches or how that had been treated in the draft CZMP.
The applicant submits that on the evidence available to the Court, the Minister had no evidence in front of her at the time of certifying the CZMP, or at any other time, which would enable her to form a view that there had been compliance with the CZMP and the Guidelines in relation to the description of coastal hazards required by the Guidelines.
Mr Hutley submitted that a failure to prepare the CZMP in conformity with (rather than in harmony with) the Guidelines would be an improper exercise of power, citing La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151 at 158. Mr Hutley contended that the draft CZMP did not meet the minimum requirements of the Guidelines in that it did not assess the extent of coastal hazards, it did not include maps indicating the extent of coastal hazards or a table for each hazard, nor did it provide a table categorising all private properties subject to coastal hazards according to the degree of the hazard.
Mr Hutley further submitted that the CZMP, on its face, did not meet the requirements of the Guidelines (with particular reference to s 3.2.4) which were mandatory, having regard to the provisions of the CP Act. Analogous to Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 ('Smoker') having regard to the mandatory language (that Council is to prepare in accordance with the Minister's Guidelines, and the Minister is to certify they have been applied), the Guidelines are intended to be rules which circumscribe the discretion given to Council.
Mr Hutley noted that even if, contrary to the applicant's principle submission, the Options Study formed part of the plan that was published in the Gazette, the draft plan was still not prepared in accordance with the Guidelines as there was nothing in the Options Study with tables and maps as required by the Guidelines.
Mr Hutley contended that if the Court concludes that the draft CZMP and the ultimate plan were not prepared in accordance with the Guidelines, the plan and either the certification by the Minister or the implementation by Council consequent upon certification would be outside jurisdiction and each act would be invalid. This is because one of the statutory preconditions for the exercise of power would not have been met, referring to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [23]-[29], [39]-[40], [46], [66], [72].
Mr Hutley submitted that whether the draft plan was in accordance with the Guidelines was a jurisdictional fact, the satisfaction of which enlivened power of the decision-maker (the Minister) to certify. Mr Hutley submitted that the absence of that jurisdictional fact stripped the Minister's communication of certification of any mandatory obligation upon Council to enact it.
The applicant contends that the authors had no better information than the WP 2011 Report undertaken in 2010 which was a desktop study. The applicant submits that by this stage, four years had gone by and Council and the Minister had been put on notice of the deficiencies of the WP 2011 Report.
The applicant submits that it has been endeavouring, since about 2011, to draw the deficiencies in the preparation and basis of the CZMP to the attention of both Council and the Minister.
The applicant submits that the limited and incomplete nature of the information in the CZMP was noted by the Panel in its letter to the Minister dated 30 March 2016 (at [28] above).
On or about 10 January 2017, members of the applicant and Professor Bruce Thom (the then Chair of the Panel) met with Minister Stokes, and on 28 June 2017, a further meeting was held with Stephen Bromhead MP, Minister Upton and Ms Molloy (of the OEH).
The applicant notes that in the Options Study, the "immediate" (being 2010) beach erosion hazard at the Beaches was assessed as "unlikely".
The applicant submits that Council only points to the WP 2011 Report, the two GPR Reports and the Options Study and/or the CZMP itself, and that no other evidence is identified as having been available to Council. The applicant contends that those reports did not support the existence of a present extreme or immediate degree of hazard to the private properties on the dunes at the Beaches, and the conclusions to be gleaned from those reports are "quite the opposite".
Mr Hutley submitted that the methodology in the CZMP for analysing risk did not comply with the requirements of the CP Act and the minimum requirements in the Guidelines to describe the nature and extent of risks to public safety and built assets from coastal hazards. The approach involved combining the likelihood of a natural hazard coming to pass with the economic and social consequences if the event did eventuate and the asset was lost in its entirety forever. For example, if there were two houses on the same beach, one worth $500,000 and the other $5 million, the risks associated with coastal erosion are the same to both but under Council's risk matrix, the risk is higher for the latter property merely because it is of higher economic value. That was the result purportedly set out by Council in Tables 1-3 and 1-4. Mr Hutley submitted that this approach was inherently irrational as Council added a further metric (in addition to risk and hazard) into the exercise by multiplying the risk by the consequence.
Mr Hutley submitted that in determining the risk to an asset, a risk which is unlikely to fall in in a risk matrix becomes a risk which is likely if the economic impact of the risk falling in is above a certain level, contrary to the Guidelines and the CP Act. On this view, Mr Hutley submitted that one is not actually measuring risk arising from a coastal hazard, but the economic consequences of a risk falling in, and the algorithm Council adopted does not accord with the definition of "Risk" in the Glossary to the Guidelines as it is expressed as a combination, not a matrix.
Mr Hutley submitted that all the actual assessments of the hazards and the risks of the hazards falling in were unlikely when regard is had to the Options Study.
Mr Hutley also disputed the Minister's characterisation of the CZMP as a policy document, noting that it is an instrument under an enactment which is intended to have legal operation such that it can be the subject of enforcement, and departures from it can give rise to criminal liability.
In relation to the Minister's certification, Mr Hutley submitted that conformity with the CP Act is a jurisdictional fact. Mr Hutley further submitted that non-compliance with the Guidelines included more than non-compliance with just the minimum requirements.
The Minister submits that the applicant has not identified in its summons or submissions the basis upon which it says the Minister's opinion is reviewable, except to assert in ground 1 that the decision was unreasonable. The Minister contends that the other grounds pleaded need to be identified as reviewable errors in a legal sense and that the applicant has not done so.
For example, having regard to the nature of the discretion being exercised by the Minister, the Minister submits that the question that must be determined is whether her satisfaction is reviewable. That is, whether her factual determination that the CZMP was prepared in accordance with the CP Act is a jurisdictional fact. If this question is answered in the negative, the Minister says that it is not reviewable. The Minister contends that the applicant did not plead jurisdictional fact. Ms Duggan submitted that if the applicant was asserting that something was a jurisdictional fact, one would expect a submission that dealt with the underlying and mandatory principles of that assertion, as set out by Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 ('Timbarra') at 64.
Ms Duggan submitted that the Minister's discretion to certify is not a jurisdictional fact in the sense that the applicant can go behind it, with the effect that the arguments advanced in relation to the Guidelines, what was before the Minister at the time, the administrative slips in Table 1-4, the algorithm et cetera, are moot. That is, the Minister submitted that the applicant has not discharged its onus to establish that the questions it seeks to ask are jurisdictional facts.
In these circumstances, the Ms Duggan submitted that the applicant's case is a plain complaint on merit and fails to identify a reviewable error.
Ms Duggan submitted that other than allegations made in respect of s 55D of the CP Act, there had been no allegations that other provisions had not been met, with the effect that the totality of the material in the summons that dealt with the WP 2011 Report, the adequacy of evidence and the complaints in relation to whether or not there was compelling material, had in fact been abandoned. Ms Duggan submitted that the proposition that the applicant's primary case is that the plan was that which was published in the Gazette, was not the pleaded case, and it is not an issue for determination. To the extent that it is, Ms Duggan adopted Mr Lazarus' submissions in relation to whether or not the gazettal would be an error that would be reviewable, jurisdictional or material (even if it was jurisdictional).
In response to Mr Hutley's submission that no evidence had been led to demonstrate that the Options Study was attached to the plan when the Minister certified it and that a Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 inference is available that that which was the plan was that which was published (Tcpt, 16 April 2019, p 131(20-23)), Ms Duggan submitted that that issue was not part of the applicant's case, that the Minister did not have to prove that a physical attachment was before her, and in any event, that proposition is wrong in circumstances where the totality of the material, including the Options Study, was before the Minister. Further, Ms Duggan submitted that the document that was adopted by Council was the CZMP with the Options Study, and the document that was sent to the Minister on 22 August 2016 for certification made express reference to the fact that the CZMP included the Options Study as Appendix A. While the applicant bears the onus of establishing reviewable error, Ms Duggan submitted that there is no other reasonable finding open to the Court other than what Council adopted and what the Minister certified included the Options Study.
The Minister submits that the discretion must be exercised in conformity with the limitations of the CP Act as to its subject matter, scope and purpose.
Ms Duggan submitted that the applicant has to demonstrate that the decision (the reasonableness question) was not open to the Minister, and that in exercising a discretion, the decision need not be to a state of perfection.
Ms Duggan also cited Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [54]-[60], [62] to submit that even if the applicant is able to challenge the Minister's decision, they need to prove more than an error or mistake. Ms Duggan submitted that the Minister could get it "horribly wrong", but provided she acts lawfully insofar as taking into account the relevant matters, asking herself the relevant question and exercising the power that is conferred upon her, she can make "gross mistakes" in the exercise of that power, and that only if the mistake is so great that there is no plausible justification for the decision (the Wednesbury category), then the Minister has duly exercised her power.
The Minister submits that almost all of the applicant's complaints suggest that the Minister acted "unreasonably" in the administrative law sense, and it is a significant burden to establish error of law on the basis of unreasonableness as it requires the decision to be so outside the bounds of the jurisdictional power conferred that it cannot be said to be an exercise of that power.
The Minister contends that unreasonableness is linked to rationality and logicality in decision-making and that the applicant has to establish that the Minister's decision "lacked an evident and intelligible justification": Li at [76].
Here, the Minister submits that the decision under s 55G(4) to certify that the draft CZMP submitted to the Minister had been prepared in accordance with the requirement of the CP Act is the only decision capable of being the subject of the allegation of unreasonableness. The Minister says that the correctness of content of the plan and the scientific findings contained therein are irrelevant to the Minister's decision as the Minister's decision relates to process, not content.
The Minister contends that the requirements of the CP Act for the preparation of the CZMP were, relevantly: that it makes provision for the matters set out in s 55C; that it has been prepared in accordance with the Guidelines: s 55D; that public consultation has occurred: s 55E; that Council has considered the public submissions: s 55F; and that Council has consulted with other public authorities as specified in the Guidelines: s 55G(2).
The Minister submits that there is no evidence upon which the Court could find that the Minister acted unreasonably, in the legal sense, in certifying these matters.
In relation to ground 4, the Minister noted that while the applicant submits that there was no evidence or no probative evidence for the risk assessment in Tables 1-3 and 1-4, those complaints only survive if the Court finds that the algorithm was not open to be adopted by Council, not that the Court would have favoured a different calculation, or that there was too much weight given to one element of the calculation. That is, the only question is whether it was open at all for Council to formulate the formula in the manner it did and whether it was open to the Minister to certify a plan that adopted that formula as being in accordance with the CP Act (which included the Guidelines).
The Minister noted that the applicant's argument focuses on the calculation and expression of risk in the CZMP and submitted that the way in which the applicant identifies that is by reference solely to the Guidelines. The Minister submitted that there is good reason for this as the CP Act does not dictate how the issue of risk is to be determined. Ms Duggan further submitted that as per s 2.3.2 of the Options Study, a working party (comprising consultants, Council and various government agencies) was convened where all of the assets in the area covered by the CZMP were listed, and the consequences were assessed separately for various coastal hazards. Ms Duggan noted that the working party calculated between themselves what they considered to be the separate social, economic and environmental consequence for each asset type, worked out a weighting between those three considerations, and then worked out the consequence ranking. Ms Duggan submitted that even if the approach was new or bespoke, it could not be suggested that the adoption of the matrix in the CZMP was Wednesbury unreasonable in the sense that it lacked plausible justification.
While the applicant contended that the CZMP would be a mandatory matter in the consideration of any future development application pursuant to s 79C(1)(a)(v) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'), Council submits that that is no longer the case as a result of the deletion of that subparagraph in s 4.15 (the renumbered s 79C) consequent upon the repeal of the CP Act.
Council notes that the process by which the hazard risk maps were generated was a complex one and that both the Options Study (at Appendix C - "Submissions and Responses on the Draft CZMP - Options Study report") and the CZMP (at Appendix B - "Table of Submissions on the CZMP") contain a detailed treatment and discussion of the relevant science, and the issues which had been raised over time and in response to the public exhibition by the applicant concerning the allegedly accreting state of the Beaches. Council submits that most if not all of the arguments being agitated by the applicant, including the criticisms of the investigations that had been carried out, as well as the current state of the Beaches, were the subject of detailed consideration by Council. Council contends that pursuant to the CZMP, it was obliged to act reasonably on the basis of the best information available, and that it had legal duties to take action in the event that it formed the view that there could be a risk to properties at the various beaches.
In light of the above, Council submits that the evidence is insufficient for the Court to set aside the CZMP on the basis of unreasonableness and that the applicant's criticism that the Beaches are "in balance" and could not rationally be considered to be at "high or extreme risk" of coastal hazards is answered in part by reference to the consideration of the "consequence scale" (that is, the "multiplication procedure"), also referred to as the "algorithm" in oral address by Mr Hutley.
Council submits that even if the applicant were able to demonstrate that the CZMP did not comply with the Guidelines in some way, that is not the end of the enquiry and the Court would need to determine whether any breach of s 55D of the CP Act should lead to the invalidity of the CZMP in its entirety.
Council submits that no breach of the Guidelines pleaded by the applicant would warrant the conclusion that the CZMP in its entirety is invalid as:
1. there is no express provision within the statute rendering compliance with s 55D(1) of the CP Act an essential precondition to the validity of the making of the plan;
2. guidelines do not normally have binding force, and they generally only provide a "guide" to their subject matter;
3. although a council "is" to prepare a draft plan "in accordance with" the Guidelines, there is a distinction between "in accordance with" and "in compliance with": Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129 ('Sharples') at [89(a)]. It is only in the latter case that the Guidelines would have mandatory effect; and
4. the statutory scheme leaves the issue of whether the draft plan has been prepared in accordance with the requirements of the CP Act to the Minister, to be assessed as part of the Minister's decision whether or not to certify the draft plan. That is, unless the Minister has made some legal error in the process of making her certification decision, whether the CZMP complies with the Guidelines as a matter of fact is irrelevant. As such, it is not the proper function of the Court in judicial review proceedings to second guess the certification decision of the Minister.
In light of the above, Council submits that the preparation of a draft plan strictly in accordance with the Guidelines is not a jurisdictional precondition to the making of a valid CZMP.
Council submits that embedded within ground 2 is what appears to be a separate allegation that there was no evidence or other probative material to support the existence of a "hazard" to the private properties on the barrier dune at the Beaches. Council submits that to the extent that that is a separate ground of challenge, it may be noted that the "no evidence" ground is usually difficult to establish as it requires a challenger to show there was no probative material at all to support the finding. Council submits that it is impossible to address this argument without referring to the reports prepared by and on behalf of Council.
Contrary to Council's position that its assessment is in conformity with another requirement of the Guidelines, the applicant submits that ss 3.1 and 3.2 of the Guidelines have very prescriptive requirements that specify that it is the extent of the hazards which are to be assessed and set out in the CZMP in a table and maps. After this has been done, the applicant submits that the Guidelines stipulate that "the table should be used to assess the relative risks associated with these hazards, based on likelihood and consequences. It should include any relevant information on risks arising from these hazards…".
The applicant submits that Tables 1-3 and 1-4 only provide an assessment based on a holistic valuation of the consequences if an asset were lost (even if that were unlikely), and for this assessment, Council used different guidelines, being Risk Management Principles and Guidelines (AS/NZS 150 31000:2009) which are guidelines for organisations about risk management.
In response to the Minister's position, the applicant submits:
1. the applicant has pleaded jurisdictional error in its summons, and whether the CZMP was prepared and made in accordance with the CP Act and the Guidelines is a jurisdictional fact going to whether it is capable of existing in law;
2. the role of the Minister in certifying the CZMP under s 55G of the CP Act was not the exercise of the discretion. The Minister was required to take steps to assess whether or not there had been compliance with the Act and Guidelines before certifying. At the hearing, Mr Hutley submitted that the Minister had a binary discretion to either certify or refuse to certify that the draft CZMP had been prepared in accordance with the requirements of the Act and her role was restricted to certification, that is, vouching the truth, not an opinion. Prior to certifying, that satisfaction had to be achieved by a justifiable opinion - not the exercise of a discretion;
3. if the certification of the Minister cannot be justified on any reasonable grounds, then the requisite satisfaction required before the Minister proceeded to certify was lacking and the Minister should not have proceeded to certify, citing Parramatta City Council v Pestell (1972) 128 CLR 305; [1972] HCA 59 ('Pestell') (specifically at 323);
4. it is the core of the applicant's case that the Minister had no rational or intelligible justification to allow her to proceed to certify the CZMP; and
5. no evidence has been adduced as to how the Minister, alerted with that advice, came to certify a CZMP that stated that unidentified properties at each of the Beaches were at extreme or high risk of coastal erosion, recession or inundation. The applicant submits that the Minister has not pointed to any evidence to justify her satisfaction that the CZMP was in accordance with the Act and Guidelines.
The primary limit to all grounds of judicial review is "essentiality": Timbarra at [37]. Simply stated, the decision-maker's misjudgment or error, if there was one, must either have been contrary to the scope of the exercise of the discretion or it must have been so substantial as to take the impugned act or omission beyond the realm where reasonable minds may differ.
The applicant bears the onus of establishing reviewable error.
I accept the Minister's submission that the only basis upon which the Minister's decision could be challenged is if the Minister's consideration of whether the CZMP had been prepared in accordance with the requirements of the CP Act (including the Guidelines) was legally flawed. That is, in determining whether the Minister's decision is reviewable, the issue is not whether the CZMP was prepared in accordance with the requirements of the CP Act (and Guidelines), but whether it was reasonably open for the Minister to have drawn that conclusion.
While I accept the Minister's submission that the applicant has not articulated concerns which raise the usual heads of administrative legal review, I consider that it can be argued that the satisfaction of the Minister of a condition precedent to the discharge of an obligation can be classified as a "jurisdictional fact" in the sense that it is a criterion upon which the exercise of authority is conditioned.
Remembering that, subject to establishing a proper legal foundation, the only decision of the Minister capable of review is the decision to certify, and that the preparation and content of the CZMP are actions of Council and not the Minister, I accept that the only stated mandatory requirement is that contained in s 55A of the CP Act which requires the Minister in exercising her functions to have regard to the objects of the Act. I consider that the decision of the Minister to certify is a statutory discretion. The Minister is to decide whether she is satisfied that the plan has been prepared in accordance with the requirements of the CP Act so as to make it certifiable.
I consider that the applicant, apart from asserting that the decision was not reasonably open, has not properly identified reviewable errors in the usual sense. Although in its written submissions the applicant points to a number of paragraphs in the amended summons (see pars (48), (61), (74(b)), (77(c)) and (83)) where the words "jurisdictional error" and "jurisdictional foundation" are used, the applicant's primary enduring claim relates to unreasonableness.
I also accept that Council's decision to adopt the CZMP (on 20 December 2017) is not amenable to challenge on the usual administrative law grounds except on the basis of legal unreasonableness because I consider that Council had no choice but to make the plan with the changes recommended by the Panel once the Minister had certified the resubmitted draft plan (on 16 November 2017): s 55H(1) of the CP Act. That is, Council had the statutory obligation to resubmit the draft plan with the recommended changes, and to make and thereafter gazette the CZMP once the Minister had given her certification. Similarly, I have some doubts as to whether Council's antecedent decisions are amenable to judicial review except on the basis of legal unreasonableness.
Irrespective of my views in relation to whether the impugned decisions are reviewable, I shall consider grounds 2 and 3 (in relation to whether there was non-compliance with the CP Act and Guidelines, and whether there was a deficiency of information for the CZMP) as they apply to the impugned decisions, in addition to grounds 1 and 4 (in relation to unreasonableness).
Council submits that each of the requirements of the Guidelines was satisfied by the information in the tables and maps contained in the CZMP and, relevantly, its "companion document", the Options Study. Council also submits that the Court ought to have regard to the conclusions of both the Panel and the OEH referred to above in relation to the adequacy of the CZMP, noting again that in forming its view, the Panel considered, inter alia, the Options Study, the Guidelines, and the OEH assessment of the requirements of both the CP Act and the minimum requirements of the Guidelines (see [28] above).
The Minister submits that in the exercise of her discretion, which was to certify the plan, the only stated mandatory requirement contained in s 55A of the CP Act was for the Minister to have regard to the objects of the CP Act. The Minister further noted that the decision to certify called for a decision that the Minister was satisfied.
The evidence before the Court indicated that the following steps were undertaken:
1. In accordance with s 55D(1) of the CP Act, Council prepared a draft CZMP. Authority was delegated to the Mayor and General Manager to adopt the draft plan to allow public exhibition by resolution on 10 March 2015. Thereafter, in accordance with s 55E, Council gave public notice of the place, dates and times during which the plan could be inspected by the public, and such exhibition took place from 2 April to 15 May 2015. In accordance with s 55F, Council considered the submissions made during the period of the public exhibition and the draft plan was adopted by resolution dated 24 November 2015.
2. In accordance with s 55G(2) of the CP Act, Council consulted with other public authorities in the manner specified in the Guidelines, and thereafter, pursuant to s 55G(1), on 23 December 2015, Council submitted the draft CZMP to the Minister for certification. In accordance with s 55G(3), on 5 February 2016, before certifying the draft CZMP, the Minister referred the plan to the Panel for "advice". In accordance with s 55G(4)(b), the Panel recommended changes to the plan in correspondence of 30 March 2016 and thereafter, in accordance with s 55G(4)(b), on 9 June 2016, having referred the plan to the Panel for advice, and the Panel having recommended changes to the plan, the Minister returned the plan to Council and directed Council to amend and resubmit the plan with the recommended changes.
3. In accordance with s 55G(5) of the CP Act, Council amended the plan and resubmitted it with the recommended changes on 22 August and 31 August 2016. On 16 November 2017, in accordance with s 55G(4)(a), the Minister certified that the CZMP submitted to the Minister had been prepared in accordance with the requirements of the CP Act. On 20 December 2017, pursuant to s 55H(1), after the Minister certified that the draft CZMP had been prepared in accordance with the requirements of CP Act, Council adopted the plan. Pursuant to ss 55H(1) and 55H(2), on 29 December 2017, the CZMP was published in the Gazette.
I accept the position adopted by Council that, apart from the mandatory content requirements in s 55C of the CP Act and the obligation in s 55D(1) to prepare a draft CZMP in accordance with the Guidelines, Council's discretion in preparing the draft plan was unconfined. I find that so long as the draft plan adhered to the Guidelines, a matter which I consider below, the manner in which Council chose to address the discrete matters in s 55C was a matter for Council's judgment and discretion.
In determining whether there was non-compliance with the CP Act and Guidelines as claimed by the applicant, I will consider whether the Guidelines imposed mandatory requirements, then I shall consider whether the Options Study is "part" of the CZMP, and finally, I will consider whether there has been compliance with the requirements therein.
The nature and status of the Guidelines was the subject of much debate. With emphasis upon the commentary in Smoker, the applicant submitted that the Guidelines imposed rules, and because there was non-compliance with the Guidelines, any subsequent conduct by the Minister or implementation by Council prior to or consequent upon the Minister's certification would be outside jurisdiction because the statutory precondition for the exercise of the power had not been met. In the alternative, the applicant submitted that whether the draft plan was in accordance with the Guidelines was a jurisdictional fact, the satisfaction of which enlivened the power for the Minister to certify. As recorded above and considered below, the applicant alleged that the Guidelines required, but did not properly address, an assessment of a number of matters, including the relative risks, and Council's bespoke process (summarised above in the applicant's submissions and considered further below under ground 4) did not comply with the requirements.
The applicant submitted that the Guidelines are highly prescriptive and have a rule-like quality, particularly in ss 3.1 and 3.2, and the Minister is required to certify that there has been compliance with the Guidelines. The applicant also submitted that to the extent that there was a lack of conformity between the CZMP and the Guidelines, this would amount to an improper exercise of power.
In relation to the use of the word "should" in the Guidelines, Mr Hutley referred to South Australia Housing Trust v Development Assessment Commission (1994) 63 SASR 35 to note that words of a normative variety (such as "should") cannot be divorced from the context in which one is considering a case. Mr Hutley submitted that if "should" meant that the Guidelines were optional, then the whole concept of the plan being in accordance with the Guidelines would "evaporate in substance".
Further, Mr Hutley submitted that the Guidelines set out the "architecture" to be met, without specifying the "content of each aspect of that architecture", and that determining whether the Guidelines were mandatory and concentrating on the word "should" could be a diversion as the Court has to determine whether the plan accords with (setting aside minor and insubstantial departures) the CP Act and the Guidelines. The question is ultimately one of statutory construction as to what is sufficient to be in accordance with the Guidelines.
The Minister and Council submitted that the Guidelines, when properly considered, did not impose mandatory requirements that had not been complied with.
For the reasons that follow, I do not consider that the Guidelines, when considered both textually and contextually, have a rule-like quality so as to make them mandatory.
While the Guidelines specify the "minimum requirements that are to be met when preparing a draft plan" (which are in addition to the requirements in the CP Act), they were also merely "intended to provide guidance to local councils". I consider that the Guidelines simply provide a "framework" for preparing a coastal zone management plan, and there was a legislative intent for them to be directory, rather than mandatory: Smoker at 289, 290, 298-301 and Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 at 519-520. In this regard, the Guidelines do not contain words such as "must comply with" (as considered in Smoker at 293) and I consider that they are not to be understood in the "special sense" considered by Burchett J in Smoker at 290.
I consider that although Council is required to prepare a draft coastal zone management plan "in accordance with" the Guidelines, as considered in Sharples at [89(a)], there is a distinction between "in accordance with" and "in compliance with". The absence of words such as "in compliance with" (or indeed "strict compliance with") leads me to the view that the Guidelines were not mandatory, and although they specify "minimum requirements" in relation to some discrete aspects, contrary to the applicant's submission, I do not consider that they have a sufficiently "rule-like" quality to support a conclusion of invalidity.
In making my findings, I have had regard to Gummow J's comments in Australian Capital Television Pty Ltd v Minister for Transport & Communications (1989) 86 ALR 119 ('ACTV') at 147-148:
I turn to the first issue mentioned above, viz the statement in s 94L(5) that an implementation plan be "in accordance with any guidelines made by the Minister"...
...
What then is meant by the phrase in s 94L(5) "shall be in accordance with the guidelines"? The context is one which, in my view, indicates that the words "in accordance with" are more akin to "pursuant to" than "in strict compliance with" (cf Re Claye; Ex parte Hestelow (1967) 87 WN (Pt 1) (NSW) 184 at 198 per Jacobs JA). There will be non-compliance with s 94L(5) if a plan cannot be said to have been prepared pursuant to the guidelines; it may still have been prepared "in accordance with" the guidelines although it is not in strict compliance with them in every particular. That then is the content of the requirement. One then may ask whether, so understood, the requirement is mandatory because if it is not met, the consequence is to render what has been done ineffective for the purposes of the Act.
... The Minister is required by s 94M(1) to have regard to the guidelines when determining whether to approve the plan in question; this includes, in my view, having regard to whether there has been such non-compliance with the guidelines in one or more particulars that one can say that the plan was not prepared pursuant to the guidelines. If it does appear to the Minister that the plan is not in accordance with the guidelines in this sense, then that is a matter to which he will have regard in the exercise of his discretion. When the matter is seen in this light, it will be apparent that the great conceptual divide between the effective and ineffective, valid and invalid, which is suggested by the dichotomy between the mandatory and directory, is not really present with legislation of the present character.
Given my findings above, irrespective of the 'elusive' mandatory/directory distinction (ACTV at 146), as considered further below, I find that there has been compliance with the Guidelines in any event.
There was also a not unrelated significant dispute in relation to the nature and status of the Options Study which has been variously described as "Appendix A" to the CZMP and/or a "companion document" to the CZMP. This is relevant because Council suggests that a number of alleged shortcomings in the body of the CZMP (that is, matters that are required by the Guidelines), are addressed in the Options Study.
Having considered the parties' respective positions in relation to the status of the Options Study, I find that the Options Study is properly considered to be part of the CZMP. I am of this view because of the various direct references to it in the CZMP, not the least of which includes the reference to the Options Study as a "companion document" and, more relevantly, the fact that it was specifically provided to the Minister and the Panel as part of the draft CZMP, and it is attached to the CZMP itself, being Annexure A thereto. In addition, the Options Study comprised approximately 275 pages of detailed scientific, photographic and analytical material, including maps and plans, with cross references to the Guidelines and the CZMP on numerous occasions. The sheer detail must be seen as being complementary and intimately related to the CZMP. Further, the Minister was informed that the Options Study was to be an appendix to the CZMP, and I accept that the Options Study comprised part of the material that was before the Minister when she certified the plan. In these circumstances, the CZMP cannot be understood as a discrete document without reference to the Options Study.
I take some comfort in my view above from the comments of Ipp AJA (with whom Meagher and Powell JA agreed) in Chisholm at 42, albeit in relation to what constituted a "conservation plan", where his Honour took the view that a conservation plan could be made up of a document to which other documents were attached or one document that refers specifically to paragraphs in other documents or indeed it could be constituted by part of a document that refers to and incorporates parts of another document in such a way that all the parts are readily identifiable as making out a single entity. Whilst in Chisholm his Honour found that it was a matter of fact and degree whether a set of documents could satisfy a particular description, on the matters before me, I consider that the Options Study may be similarly described, whether it is considered as part of the CZMP or whether it is incorporated by specific reference therein. I find that the Minister was entitled to certify the plan by reference to whether the requirements in the Guidelines had been satisfied in either the CZMP or the Options Study, its "companion document".
In passing, I note that Ms Duggan reminded the Court that it was not part of the applicant's claim, and not pleaded, that the plan, with an appendix, was not published in the Gazette. Ms Duggan also pointed out that this issue was not raised in the document styled "Real Issues for Determination" filed by each of the parties. Despite not being pleaded, Ms Duggan and Mr Lazarus separately expressed concerns that the applicant was attempting to argue that there was a problem with the gazettal because the Options Study itself was not gazetted. Ms Duggan submitted, and I accept, that this claim did not form part of the pleading. To the extent that such an argument was sought to be raised, I do not entertain it.
Further, I accept Mr Lazarus' submission that if it is an "essential component of the applicant's case" that "part of the CZMP was not gazetted", it does not follow that this affected the validity of the anterior decisions of the Minister to certify and Council to make the plan. Mr Lazarus submitted, and I accept, that the primary challenge is to the certification decision, and in those circumstances, gazettal was "something that follows".
In light of my findings that the Guidelines were directory rather than mandatory, and that the Options Study was part of the CZMP, it is then necessary to assess whether the CZMP (which includes the Options Study) complied with the CP Act and the Guidelines.
I will now consider the discrete aspects of the Guidelines which the applicant submits were not complied with. The applicant and Council provided tabular formulations with references to sections in the Guidelines and there is extensive evidence before the Court in relation to what was required and what Council undertook (or did not undertake). In summary, the Court was referred to and has considered the tabular formulations as follows:
1. Section 3.2.1 (at [56]-[57] above) provides that a coastal zone management plan is to assess the extent of coastal hazards; include minimum criteria for assessing the extent of coastal hazards as set out in Table 2; include a map indicating the extent of each hazard, including the extent of beach erosion hazard; and include a table for each hazard indicating number and types of buildings and infrastructure within each hazard area. Section 3.2.1 also requires the table to be used to assess the relative risks associated with these hazards based on likelihood and consequences, including any additional relevant information on risks arising from these hazards. The parties' respective positions in relation to s 3.2.1 are:
2. According to the applicant, the CZMP did not assess the extent of the hazard but only assessed the degree of risk arising from coastal hazards; Council provided no assessment of coastal hazards in the CZMP; there are no maps included in the CZMP; and the CZMP does not include a table of hazards. Further, Tables 1-3 and 1-4 in the CZMP purport to value the consequence relative to each asset of coastal erosion, recession and inundation if the hazard, however unlikely, occurs, and assuming that the asset is lost forever as a result. These tables are not assessments of the physical risks from the hazard - the tables assume property or assets are lost forever, and value that loss.
3. According to Council, Council fully addressed the extent of each of the relevant coastal hazards; all the relevant maps are contained in the Options Study; the tables are set out in the Options Study; and the tables summarise the result of the risk matrix assessment.
4. The applicant notes that s 3.2.4 (at [58]-[59] above) provides that a coastal zone management plan is to categorise all private property subject to coastal hazards according to the "degree of the hazard" (while Council notes that the categorisation should be according to "degree of likelihood") and in the case of erosion and recession, the category of Council's intended response (which Council says should be based on Tables 5 and 6), and that this information is to be provided in a table. Section 3.2.4 further provides that where a property is located on the boundary between two hazard areas, the most seaward hazard area should be used, unless this area is less than 25% of the block (a requirement which the applicant appeared to label a "Rule"). The parties' respective positions in relation to s 3.2.4 are:
5. According to the applicant, there is no categorisation according to the degree of hazard and no table of the nature required by s 3.2.4, and Table 1.3 was not prepared applying the Rule.
6. According to Council, it complied with s 3.2.4, and it says that is unclear how the requirement therein differs from the 'table' requirements in s 3.2.1. Council submits that the whole purpose of the table is to provide Council's response to managing the risk, which the tables clearly do. In relation to what the applicant deemed a "Rule", Council submits that no breach of this aspect of the Guidelines has been pleaded, and in any event, adoption of the most seaward categorisation of hazard is consistent with the precautionary principle and in many cases, the seaward side is where the relevant dwellings and other improvements are located.
7. The applicant notes that s 3.1 (at [55] above) provides that a coastal zone management plan should include a description of the nature and extent of risks to public safety and built assets from coastal hazards, and should include a description of property risk. In this regard, the applicant submits that Council's description of the extent of risks (using its risk matrix to identify assets at extreme or high risk in Tables 1-3 and 1-4) was misconceived.
Having closely considered the extensive documentation, and considering the requirements summarised above, I am comfortably satisfied that the requirements of the Guidelines have been properly met.
As I have noted above, although the Guidelines provide, at s 3.1, that a CZMP in addressing coastal risks "should" include certain matters (see [55] above), the word "should" does not indicate an intention that it is mandatory to so include.
In light of my findings regarding the relationship between the Options Study and the CZMP and despite my findings that the Guidelines are not to be considered as having a "rule-like" quality, I find that in relation to s 3.2.1 of the Guidelines, the CZMP does, to the requisite extent, assess the coastal hazards set out in Table 2 to the Guidelines at pp 14 and 30-33 of the CZMP itself and in s 2 ("Risk Assessment for Coastal Hazards") of the Options Study, particularly in ss 2.1, 2.2.2.2, 2.2.3.2, 2.2.4, 2.2.4.2 and 2.2.5 thereof. Considered together, this material addresses s 3.2.1 of the Guidelines and provides relevant maps and tables which, as Council submits, summarise the result of the "risk matrix assessment".
Further, in relation to the provision of the map indicating the extent of each hazard, including the extent of beach erosion hazard with recession hazard areas, I consider that the maps at Appendix F to the Options Study depict (using dotted lines) the extent of the hazard and address the requirements in s 3.2.1 of the Guidelines.
To the extent that the CZMP "should" include a table for each hazard indicating the number and type of buildings and significant infrastructure within each hazard area, I consider that the tables set out in the Options Study, in particular Table 5-1 ("Erosion and Recession Asset Risk Register") and Table 5-2 ("Wave Runup Risk Register"), considered with Appendix F ("Coastal Hazard Risk Maps"), and in particular Map A-08 (in relation to Boomerang Beach) and Map D-10 (in relation to Blueys Beach), address the "minimum criteria" for assessing the extent of coastal hazards. Further, I consider that Table 5-1 and Table 5-2 adequately summarise the result of the risk matrix assessment.
In relation to s 3.2.4 of the Guidelines, I accept Council's submission summarised at [232(2)(b)] above and I find that Tables 5-1 and 5-2 in the Options Study reflect the requirements in s 3.2.4 (as well as s 3.2.1) of the Guidelines.
Leaving to one side the determination of whether each of the requirements in the Guidelines was satisfied by information in the CZMP (which I have found they were), I consider that the statutory scheme leaves the issue of whether the draft plan has been prepared in accordance with the requirements of the CP Act to the Minister, and, as I have noted separately, this is assessed when the Minister determines whether or not to certify the plan. Unless the Minister has made some justiciable legal error in the process of making her certification decision, whether the CZMP is in accordance with (or even in the alternative complies with) the Guidelines is, as a matter of fact, irrelevant.
Even if, contrary to my findings, there had been some non-conformity, invalidity will only result where there can be "discerned a legislative purpose to invalidate any act that fails to comply". The appropriate test for determining validity is to "ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid" and there is "no decisive rule" in making this discernment: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky') at [91]-[96]. In Project Blue Sky, the Court identified a number of factors as leading to a conclusion that non-compliance resulted in invalidity, including: first, whether the process was an "essential preliminary" to the "exercise of a statutory power", rather than a "breach of a procedural condition"; second, the presence or absence of a "rule-like quality" to the process, whether the process involves questions of policy or administration or a judgment to be formed about whether the process has met a policy standard; and third, whether the process involves goals that are indeterminately framed.
I accept Council's submission that on the applicant's case, even if there was some minor non-compliance with the Guidelines (that is, information was in a map rather than a table, information was put into an appendix or a companion document to the CZMP rather than the CZMP itself, or some of the requirements which were not minimum requirements but were nevertheless set out in the Guidelines were not fully complied with), the CZMP would be invalid in its entirety, together with all important environmental programs. Further, I accept Council's submission, and find that it could not have been intended that if part of the CZMP was not gazetted, that that would affect the validity of the anterior decisions to certify and make the plan.
In summary, given my finding that the Guidelines were not mandatory, strict compliance with the terms therein was not necessary. Even if, contrary to my finding above, the Guidelines imposed mandatory requirements, given my finding that the Options Study was part of the CZMP, there was compliance with the Guidelines.
Despite recommending that there was a need for further work to be done, the Panel was "satisfied with the proposed approach..." in the CZMP. As noted above, while the Panel required "some revisions" to improve the studies which related to the development of a "detailed management strategy for Blueys and Boomerang Beaches...", these revisions were later attended to to the satisfaction of the OEH. I also note that the CZMP itself provided that it was to be reviewed every 5 to 10 years to undertake technical revision of supporting documents.
The applicant submits that the assessment in Table 1-3 and Table 1-4 of the CZMP, leaving aside the "algorithm argument", has altered the assessment of risk, and that the categorisation of certain sites or property as "extreme or high risk" was made in the absence of any probative evidence. While also relevant to ground 3, being whether there was a deficiency of information for the CZMP, I do not accept this argument. I consider that it is both appropriate and likely necessary to have regard to the Coastal Hazard Risk Maps as well as, as submitted by Council, the tables containing the asset risk registers for the Beaches contained in the Options Study. I have already considered and determined that the Options Study is in fact part of the CZMP.
Although it is not abundantly clear on its face, the reference to 11 lots at Southern Boomerang in Table 1-3 of the CZMP and the reference to the 21 lots at Southern Blueys in Table 1-4 of the CZMP is relevantly a reference to the property shaded in orange on the relevant hazard mapping in Fig A-08 and Fig D-10. This understates the question of the relevance of the Options Study in consideration of the CZMP and the manner in which the Minister was able to certify the CZMP.
As submitted by Council, the relevant hazard mapping in the Options Study (Appendix A to the CZMP) styled "Coastal Hazard Risk Maps" identifies each of the Beaches and the relevant hazards. Notwithstanding my finding in relation to the manner in which the material in the Options Study and the CZMP relate to each other, it is clear from the evidence that the Hazard Risk Maps were determined from earlier material, including the WP 2011 Report which provided hazard lines for 2010, 2060 and 2100, and that these were considered and discussed in s 2.5.1 of the Options Study which dealt with "limitations to risk mapping" in some detail. This analysis also considered the limitations in the then available risk mapping.
The Options Study and the CZMP each contain detailed analysis and deal with risk assessment and risk management options for coastal hazards, and within those categories, consider and deal with the likelihood of coastal hazards, the consequence of coastal hazards, analysis of existing controls, and risk assessment for discrete areas including the Beaches. Although there has been criticism of what the applicant terms the "multiplication procedure", the Options Study adopted an analysis of the likelihood of beach erosion hazards at the Beaches having regard to a "likelihood scale" detailed in Table 2-1 (and dealt with within s 2.2.1). That "scale" provides that the "likelihood" or probability of occurrence of coastal hazards has been determined through an analysis of coastal processes and historical beach responses and accounts for uncertainty in both the occurrence of hazards and shoreline response to sea level risk.
As submitted by Council, Table 2-1 assesses the "risk likelihood" of coastal hazards in various categories, including "almost certain", "likely", "unlikely" or "rare" in light of the history of occurrences, and Council chose that to base its likelihood scale on the Australian Standard for Risk Management (AS-NZS ISO 3100:2009) and its companion document. Section 2.2.1 of the Options Study states that the scale is tailored to both the long time frames for coastal planning and accounts for the potential for relatively infrequent but damaging events that can occur. The applicant's complaint is that if the risks of the relevant hazards are assessed as "unlikely", it follows that it is irrational or unreasonable to describe the relevant assets at the Beaches as being at "extreme or high risk". I accept Council's submission that this argument fails to understand the nature of the assessment undertaken by Council.
At s 3.2.1 of the Guidelines, it is suggested that the table for each hazard "should be used to assess the relative risks associated with these hazards, based on likelihood and consequences" (emphasis added). I consider that the primary question is whether that particular approach, which uses "consequences" as a component in determining risk, is one that is illogical and irrational in the circumstances. On the material before me, and considering the Guidelines and the manner in which the risks have been determined, I accept Council's submission that the risk analysis undertaken in the plan did not necessarily have to be based only upon the likelihood of an occurrence of various hazards, but could also deal with the consequences thereof.
I do not consider that the applicant's criticism renders Council's approach illogical and/or unreasonable so as to invalidate that approach. To the extent that the applicant suggests that Council's approach is "bespoke", I consider the analysis of the level of risk as detailed in s 2.5 of the Options Study (explained by reference to the risk matrix detailed in Table 2-6 therein) is not such as to render the approach illogical and/or unreasonable. I also accept Council's submission that the approach taken in the CZMP in this regard did not appear to receive any criticism from the Panel (nor the OEH).
For completeness, I also take into account that Council has accepted (and presumably will take into account in any further consideration relating to the CZMP) that there was a "transpositional" error in the headings to Table 1-4 on p 14 of the CZMP (as noted at [171] above). In the circumstances, I do not consider that "error" to be in any way determinative in my consideration of the applicant's claims.
In the circumstances, I consider that the decisions to certify and adopt the CZMP (and the antecedent decisions) which in effect categorise the properties at "extreme or high risk" from coastal erosion and/or wave runup or over wash, given the detailed material before Council at the time (more particularly, the Options Study and the other reports referred to in the Options Study) and the Panel's consideration thereof (and the OEH's further consideration of the draft CZMP), were decisions determined based upon the significant and detailed background material. I consider the process by which the hazard risk maps were generated, although somewhat complex, was properly considered by Council. Even if there was a discernible mistake, it would not lead to invalidity.
In making my findings, I am conscious of the fact that if the statute does not mandate a particular methodological approach to be taken, it will be difficult to establish that a decision-maker's methodology is legally flawed: Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977 at [573], [604].
Given the above, I accept the submission made on behalf of the Minister that the CP Act itself does not dictate how the issue of the risk is to be determined. Further, the manner in which risk was determined (detailed in s 2.3.2 of the Options Study) involved an explanation of how the "consequence values" were assessed (being part of risk assessment workshops conducted with representatives from various sections within Council and various government agencies). These values considered the separate social, economic and environmental consequence of each asset type the subject of consideration, and the manner in which risk and consequence was determined was on an asset by asset basis. While this approach may be considered "novel" or "bespoke", considered in the light of the definition of "risk" in the Glossary in the Guidelines (at [52] above), it could not be said to be, in a Wednesbury sense, unreasonable in the sense that it lacked plausible justification. I do not consider that it was not open to Council to adopt the approach that it adopted.
Further, I accept Council's contention that pursuant to the Guidelines, the risk analysis is not only to be based on the likelihood of an occurrence of an event but also its consequence. While I accept that the algorithm argument formulated by Mr Hutley has some weight, given the definition of "risk" in the Guidelines, and on the material before Council, the methodology adopted is not indicative of illogicality or unreasonableness.
Legal unreasonableness was more recently considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 wherein Kiefel CJ stated at [10]-[11]:
[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational…
[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies (citations omitted).
At [78]-[79], Nettle and Gordon JJ said:
[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.
[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.
In determining whether a decision is legally irrational or unreasonable, the nature and quality of the decision should be evaluated by reference to the subject matter, scope and purpose of the relevant statutory power and the attendant principles and values of the common law, including whether the decision is "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification" and "obviously disproportionate": Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [7], [11] and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [65].
I am also conscious of Menzies J's comments in Pestell at 323 wherein his Honour notes the distinction between a justifiable opinion and a sound opinion:
The definition of the land that may be subjected to a local rate is determined by the council's justifiable opinion of special benefit so that, if the so-called opinion could not be justified on any reasonable ground, then, the requisite opinion is lacking. There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.
Mr Hutley referred to D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 ('D'Amore') in relation to the means by which one can achieve an error of law. In D'Amore at [75]-[76], [78], Beazley P stated:
[75] A decision which has no basis in the evidence or which is contrary to the overwhelming weight of the material will also involve jurisdictional error: see Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777, cited in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23] and [24] per Gummow ACJ and Kiefel J.
[76] In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ stated, at [37]-[38]:
"The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned ...
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith." (emphasis added; citations omitted)
…
[78] In SZMDS, Crennan and Bell JJ accepted, at [119], that whilst every instance of illogicality or irrationality in reasoning did not give rise to jurisdictional error, jurisdictional error would be established if the illogicality or irrationality occurred at the point at which a decision maker was required to be satisfied of a fact or matter specified by the legislation. There was a question, however, in their Honour's consideration, as to the scope of illogicality and irrationality constituting jurisdictional error. As their Honours observed, at [129], labelling a decision as irrational or illogical involved more than an emphatic disagreement with the decision reached by the decision maker.
In light of the aforementioned authorities, for the reasons above and below, I do not consider that the decision of the Minister to certify the CZMP lacked an "evident and intelligible justification". To this end, the statutory source of the power exercised by the Minister is clear. The scope, purpose and objects of the power are also clear. It could not be said that the Minister abused the power, or that the decision to certify was beyond power. Further, I do not consider that the Minister took into account an irrelevant consideration, failed to take into account a relevant consideration, or exercised the power to certify for any other purpose. While I accept that grievous error could result in a finding of unreasonableness, I do not consider that the Minister's certification decision may be so characterised.
I consider that the decisions reached were ones that were reasonably open to both Council and the Minister. As is well accepted, whether an opinion of a decision-maker is sound or not is not a question for decision by a court. In reaching this view, I note the distinction between a justifiable opinion and a sound opinion in Pestell at 323.
While I accept the applicant's submissions that there were references in the background reports to the Beaches having been "stable and in balance", and there were references to certain risks being "unlikely" (in the "risk likelihood" table), there was material in the Options Study (s 2.2.3.2) regarding the use of various scientific and engineering criteria, including the Bruun Rule (where recession is considered using the sea level rise multiplied by the slope of the beach profile), and different criteria was also referred to in the WP 2011 Report. There was also consideration of the limitations to the use of those criteria and those reports. The expressions significantly relied upon by the applicant (being "stable" and "unlikely"), considered in the context of the whole of the material in the CZMP (which included the Options Study), and the earlier reports, lead me to the view that references to "unlikely" and "stable" are not determinative and do not satisfy the burden upon the applicant to establish an error of law on the basis of unreasonableness. I find that the applicant has not established that the impugned decisions "lacked an evident and intelligible justification" (Li at [76]) or are contrary to the "overwhelming weight of the material" such as to involve jurisdictional error: D'Amore at [75].
In the amended summons, the applicant seeks two additional declarations in relation to antecedent decisions, being a declaration that the decisions made on or about 24 November 2015 by Council to adopt and submit the then current draft of the CZMP to the Minister for certification were invalid; and a declaration that the decision made on or about 22 August 2016 by Council to submit the then current draft of the CZMP to the Minister for certification was invalid ('antecedent decisions').
The hearing proceeded for three days from 15 to 17 April 2019, with Mr N Hutley of senior counsel appearing with Mr R White of counsel for the applicant, Ms S Duggan of senior counsel appearing with Ms N Hammond of counsel for the Minister, and Mr J Lazarus of counsel appearing for Council.
For the reasons that follow, I have determined that the applicant, although it has standing to bring these proceedings, has not made out any of its grounds of challenge, with the consequence that the proceedings must be dismissed.