Palm Beach Protection Group Incorporated v Northern Beaches Council

Land and Environment Court (NSW)|2020-12-15|Before: Preston CJ

A further hearing is sought

On 20 November 2020, I gave judgment in these proceedings and made certain declaratory orders. I declared the Northern Beaches Council (the Council) had breached s 5.5(1) and s 5.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in making two decisions to allow dogs off-leash and on leash at Station Beach, Palm Beach, and declared invalid and quashed the decisions.
I deferred granting injunctive relief to give the parties an opportunity to make submissions on whether the Court should grant injunctive relief, and, if so, on what terms and to request a further hearing on the issue of injunctive relief.
The parties have filed written submissions and affidavit evidence in support of their submissions and requested a further hearing on the issue of the injunctive relief that should be granted, which was held on 15 December 2020.
The applicant, Palm Beach Protection Group Incorporated (the Group), contends that there still is a need for the Court to grant injunctive relief, notwithstanding that the Council has taken steps after judgment was delivered to install signage and to notify the public that dogs are prohibited on Station Beach. The Council contends that the action it has already taken is sufficient and that there is no need for the Court to order the Council to take any further action.
The Council has also filed the notice of motion seeking a variation of the costs order I made, so that instead of the Council paying all of the Group's costs, it should pay 60% or such other proportion as the Court thinks fit of the Group's costs.

The Group seeks injunctive orders

The Group submits that these actions taken by the Council are insufficient to publicise the Court's decision, the prohibition on dogs on Station Beach, and the legal consequences for contravention of the prohibition. The Group submits that different and additional signage needs to be erected.
Starting with the three signs at the northern and southern ends and midway along the beach, the Group submits that the signs should use different language not only to that of the firstly erected "Dogs Prohibited" signs but also to that of the newly erected Station Beach specific signs. The signs need not only to state that dogs are prohibited in writing and by symbol, but also need to advise the public that contravention of the prohibition is an offence contrary to s 14(2) of the Companion Animals Act 1998 and is punishable by a penalty of $1,100 (10 penalty units).
The Group submits that the Council should also erect a public information sign at the northern end of Station Beach near the Boathouse Café explaining that "both on-leash and off-leash dogs are prohibited on Station Beach by reason of the presence of the beds of the threatened Posidonia australis seagrass adjacent to the shoreline and showing a map of the seagrass beds and advising that: 1. a contravention of the prohibition is an offence contrary to s 14(2) of the Companion Animals Act 1998 punishable by a penalty of $1,100 (10 penalty units); and 2. providing the telephone number and email address for Council's rangers for the public to contact in the event of noncompliance."
The Group submits that such public information signage would be in aid of ensuring compliance with the signs that have been erected prohibiting dogs, be consistent with the reasons and decision of the Court, and be of assistance to the general public. The Group submits that it is important for the signage to explain the penalties for breach and provide a telephone number to allow members of the public to contact Council rangers to ensure that breaches can be reported and appropriately actioned by the Council. The likely significant impact of dogs on the seagrass beds and the Council's failure to comply with Part 5 of the EPA Act was a principal ground of the Court's decision.
The Group submits that the Council should also be ordered to improve the notifications and information that the Council has already published on the Council's website. The Group submits that the Council should publish on the first page of its website notification that dogs both on-leash and off-leash, are not permitted on Station Beach by reason of the presence of beds of the threatened Posidonia australis seagrass adjacent to the shoreline. The Group noted that the notifications and information currently published on the Council's website are equivocal. There is no link on the Council's website to the Court's judgment. The media release and information on the Council's website states that the judgment is being "reviewed" and the Council is "further considering" the need for an EIS for the off-leash or on-leash activities the subject of the Court's judgment. There is no explanation in the information provided on the Council's website of the significance of the seagrasses in the decision or orders of the Court.
The Group submits that, in order to publicise the orders of the Court and the prohibition on dogs on Station Beach, the Council should be ordered to publish a notice in the Manly Daily, the local newspaper circulating in the area, "advising the public that on-leash and off-leash dogs are prohibited on Station Beach by reason of the presence of the beds of the threatened Posidonia australis adjacent to the shoreline and showing a map of these seagrass beds and advising that the Council was required to publish the notice by reason of the judgment in these proceedings".
The Group submits that the brief articles published in the Council's e-Newsletter are insufficient, both in terms of their content as well as their distribution. The Group submits the publication of a map of the seagrass beds and an explanation of the importance of the seagrass and the likely significant adverse impact that dogs can have on the seagrass are of importance.

The Council opposes injunctive orders

The Council contests the need for the Court to grant injunctive relief. The Council noted that at the hearing it had submitted that, if the Court declared the Council's decisions to be invalid and the Council to have breached the EPA Act, the Council would respect and take action to give effect to the Court's judgment and orders. The Council submitted that it has done so. The Council has changed the signage at Station Beach, first by erecting the "Dogs Prohibited" signs then the temporary corflute signs and finally the Station Beach specific signs notifying the public that dogs are prohibited on Station Beach. The Council has now erected three signs at the northern and southern ends and midway along Station Beach.
The Council submits that the content of the signs already installed, both the temporary corflute sign and the new Station Beach specific sign, is adequate to inform the public that dogs are prohibited on Station Beach. The Council submits that it is not necessary to add the information suggested by the Group advising that contravention of the prohibition is an offence against s 14(2) of the Companion Animals Act 1998. However the Council did accept that it could, if the Court considered it to be desirable, add a note to the sign identifying the legislative source of the prohibition on dogs being on Station Beach, being s 14(2) of the Companion Animals Act 1998. This is commonly done by the Council with other signage in public places. The Council submits that it is not necessary for the Court to order the Council to do so as it will act on the Court's findings.
The Council submits that the public information suggested by the Group is unnecessary and goes beyond the scope of the proceedings. On the Court's findings, dogs are not prohibited on Station Beach by reason of the presence of the seagrass, but rather by reason of the decision of the former Warringah Council in 1997 prohibiting dogs on all beaches, including Station Beach, which decision the Court found was not validly revoked or varied. An order requiring such signage goes beyond and misrepresents the findings of the Court.
The Council submits that the claimed order for the Council to publish on its website notification that dogs are not permitted on Station Beach by reason of the presence of the threatened Posidonia australis seagrass adjacent to the shoreline also goes beyond the scope of the proceedings and the findings of the Court. The reason for the dogs being prohibited on the beach is the order under the Companion Animals Act 1998, not the presence of seagrass beds adjacent to the shoreline.
The Council submits that the claimed order for notice to be published in the Manly Daily is also beyond the scope of the proceedings and the findings of the Court. It is disproportionate to the circumstances of the case.
The Council further submits in response to the claimed orders for notification on the Council's website and in the Manly Daily that the actions the Council has already taken to inform the public about the Court's decision and the prohibition of dogs on Station Beach are sufficient.
The Council submits that the injunctive orders claimed by the Group are of no utility and are unnecessary. The actions already taken by the Council to erect signage and publish information about the prohibition of dogs on Station Beach are sufficient without there being a need to erect any further signage or erect any further notification. The Court's judgment is a public document which is sufficient to convey the findings of the Court.

Injunctive orders not necessary

I find that it will not be necessary to make the injunctive orders sought by the Group, for three reasons. First, the Council has already taken steps to install appropriate signage and notify the public that dogs are prohibited on Station Beach. Such signage and notification reinstates the position that existed before the Council's decisions of August and December 2019, which revoked or varied the prohibition on dogs on all beaches, including Station Beach.
Secondly, insofar as the signage and notification could beneficially be improved, the Council has indicated it would do so without the need for the Court to order it to do so. The signage at Station Beach should be amended to notify the public that contravention of the prohibition of dogs on Station Beach is an offence against s 14(2) of the Companion Animals Act 1998 with a maximum penalty of 10 penalty units or $1,100. The wording used to convey this information can be brief, in accordance with the practice of the Council for other signage in public places.
The notifications and information on the Council's website should be amended in the following ways: 1. A new media release should be released after the appeal period has expired and if the Council has elected not to appeal the Court's decision summarising, in the briefest of terms, the Court's decision and reasons and provide a link to the Court's judgment. 2. The cross references to the media release of 24 November 2020 in various announcements and pages of the Council's website should be amended to refer to the new media release as this will ensure the public are referred to information on the Court's decision rather than the Council's response to the Court's decision. 3. The pages on "dog parks" on the Council's website should be amended to no longer refer to there being an on-leash dog beach (which was Station Beach) or to Station Beach at all. The current pages still convey the impression that Station Beach is a dog park, by its inclusion in the dog park section. 4. In the "beaches" pages, the misreference to "Station Beach (north)" in the section on "Station Beach (south)" should be corrected, so as to clearly state that dogs are not permitted on Station Beach (south).
If these steps are taken by the Council I consider that the signage and the notifications and information on the Council's website will accurately and informatively notify the public about the prohibition of dogs on Station Beach, the legal consequences for contravention of the prohibition, and the Court's decision and order.
Thirdly, I consider the additional signage and notification as sought by the Group will not be necessary if the signage and the notifications and information on the Council's website are amended as I have indicated and may be beyond what the Court can order to remedy and restrain the breaches of the EPA Act found by the Court. These breaches concern failures of the Council to consider as required by ss 5.5 and 5.7 of the EPA Act, the environmental impact of the activities of conducting a dog off-leash area trial or allowing dogs on-leash on Station Beach, and to approve those activities without undertaking the required environmental impact assessment. Remedying and restraining these breaches of ss 5.5 and 5.7 of the EPA Act would not involve erecting a public information sign advising of the presence, location and ecological importance of the threatened Posidonia australis seagrass adjacent to the shoreline at Station Beach or publishing notification on the Council's website or a notice in the local newspaper to that effect. Such information may well be useful information to convey to the public and users of Station Beach, but notification of this information does not remedy or restrain the breaches of the EPA Act committed by the Council.

Whether the costs order should be varied

The Council seeks for the Court to vary the costs order it made at the time of giving judgment that the Council pay the Group's costs. The Council submits that it should only pay a proportion of the Group's costs, which it proposes should be 60%, to reflect the fact that the Group succeeded on some but not all of its grounds of challenge to the Council's decision. The Council notes that the Group did not succeed on any of its grounds that the Council breached Part 4 of the EPA Act, in that the developments of allowing dogs off-leash or dogs on-leash at Station Beach were prohibited, and in breach of s 4.3 of the EPA Act, or needed development consent but no consent was obtained, in breach of s 4.2 of the EPA Act. The Group succeeded only on the grounds that the Council breached Part 5 of the EPA Act, by failing to comply with the requirements for environmental impact assessment in s 5.5 and s 5.7 of the EPA Act.
In relation to the grounds of breach of Part 4 of the EPA Act, the Council noted that the Group raised shortly before and at the hearing new grounds, and counter-pleaded in response to the Council's defence. The Court rejected all of these grounds and counter-pleadings.
The Council submitted that the grounds of breach of Part 4 of the EPA Act were separate from the grounds of breach of Part 5 of the EPA Act, so that it was appropriate to differentiate between the costs of the issues on which the Group was successful (the Part 5 grounds) and the costs of the issues on which the Group was unsuccessful (the Part 4 grounds): see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38].
The Group contested that there is any basis for severing the issues in the case and awarding costs only on the issues on which the Group was successful.
The Group submitted: "a. An unsuccessful party will not be able to avoid liability for costs merely because it nearly succeeded and acted reasonably in commencing or defending proceedings: Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J (Dal Pont, 2nd Ed, Law of Costs, [7.8]). b. The general rule is that the costs that follow the event include the costs of issues on which the ultimately successful party has failed: Best Care Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1673 at [24], Stevenson J. c. In some rare cases partial costs orders may be justified where there has been success by litigants on different issues. The principles are discussed by Ward J (as her Honour then was) at [161]-[164] in In the Matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 932. d. The issue that is the subject of the partial costs order, or carve-out from the overall costs order in favour of the other party, must be 'clearly dominant or separable': [163]. The principles are also set out in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 by the Court at [38]. The principle is that 'where there are multiple issues in a case, the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed'. e. The Respondent has not identified any 'dominant or separable' issue here that justifies the Respondent not securing its costs for the whole proceedings on the usual basis. f. The partial costs order the Respondent seeks would set an undesirable precedent, encouraging unsuccessful parties to seek to disturb the usual costs order, post hearing and lead to unnecessary delays in the final resolution of such matters."
I do not consider the Council has made out a case for departing from the general principle that a successful party should be awarded its whole costs of the proceedings, including the costs of an issue on which it has failed. I adopt the Group's submissions on the principles for making a partial costs order and their application to the facts in this case.
The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost is when that issue is clearly dominant or separable.
In this case, I do not consider that the grounds relating to breach of Part 4 of the EPA Act were clearly dominant or separable to the grounds relating to breach of Part 5 of the EPA Act. Of course, the two parts of the EPA Act are separate legislative provisions, but there is a relationship between the parts in the circumstances of this case. Part 5 of the EPA Act only applies where Part 4 does not apply. This is evidenced in the definition of "activity" in s 5.1 of the EPA Act.
Hence, the Group could only establish breach of the provisions of Part 5 of the EPA Act once it failed to establish the application of the provisions of Part 4 of the EPA Act. The failure of the Group to establish the grounds of breach of Part 4 of the EPA Act therefore laid the foundation for the success of the Group in establishing the grounds of breach of Part 5 of the EPA Act.
There is another way in which the grounds of breach of Part 4 and Part 5 can be considered not to be separable. The central case of the Group was a judicial review challenge to two decisions of the Council. The grounds on which the Group challenged the decisions varied, some relating to Part 4 and some relating to Part 5, but the focus of the challenges remained the decisions. The fact that the Group succeeded on some grounds of review to the decisions but not others does not cause the different grounds of review to become separable. As the Group submitted, rarely does a judicial review challenge succeed on all grounds; far more common is for the challenge to succeed on some grounds of review but not others. The grounds of review are different but this alone does not make any ground clearly dominant or separable.
For these reasons, I reject the Council's application to vary the costs order so as to award the Group only 60% of its costs. The Council's motion should be dismissed.

The costs of this hearing

The question that now arises is the costs order that should be made regarding this hearing of the need for interlocutory relief and variation of the costs order. In result, each party has had some success. The Council has been successful in resisting the Group's application that the Court should make injunctive orders. The Group has been successful in resisting the Council's application for variation of the costs order. On balance, I consider it is fair and reasonable in the circumstances not to make any further costs order regarding the hearing of these competing applications. Each party should bear their own costs of this hearing.

Order

The only order the Court needs to make is: 1. The notice of motion filed on 4 December 2020 is dismissed.

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: 22 December 2020

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (4)