Land and Environment Court Update – Station Beach: November 2020

The Palm Beach Protection Group’s challenge to the decisions by the Northern Beaches Council concerning on-leash and off-leash dogs on Station Beach recently concluded in the Land and Environment Court.  

We provide the following short summary.

The Palm Beach Protection Group challenged the Council’s two decisions primarily on the bases that either a development consent was required for both the off-leash and on-leash use by dogs of Station Beach or that, alternatively, a rigorous environmental assessment process was required under NSW planning law because of the likelihood of significant environmental harm to the endangered Posidonia seagrass (both NSW and Commonwealth listed) and the White’s seahorse as a result of dog use of the beach.

The complexity of the land ownership of Station Beach and the overlay of planning law and other legislation relevant to assessing any proposed use by dogs of Station Beach became apparent during the hearing.  The area of Station Beach below mean high water mark is owned by Crown Lands and zoned E2 Environmental Conservation under Pittwater Local Environmental Plan 2014.  The Council previously acknowledged that a licence from Crown Lands is required for this area of Station Beach.

The later part of the hearing focused heavily on the deficiencies in the Council’s decision to allow dogs on-leash on Station Beach, including the failure to assess the environmental impacts of the on-leash use and to, it seems, completely ignore the mitigation measures which supported its August 2019 decision for the off-leash trial.  Critically, the on-leash use has no western boundary (which the off-leash proposal did) which means dogs are currently free to run through the endangered Posidonia seagrass at low tide and swim over it at mid and high tides with potentially serious environmental consequences.  This is particularly the case for the southern end of the beach near Beach Road, where the seagrass bed is located closer to the shore and routinely accessed by dogs.

The significant increase in dogs on Station Beach since the Council’s August and December 2019 decisions and the substantial non-compliance with the on-leash requirements and permitted hours of use were drawn to the Court’s attention.   The Council’s own consultant aquatic ecologist expressed his view that non-compliance with the Council’s proposed mitigation measures, as set out in the Cardno Review of Environmental Factors (REF), for the off-leash trial should lead to the off-leash trial being discontinued immediately because of the significant harm that will otherwise be caused to the endangered seagrass.  Of course, this raised an issue for the current on-leash use where there are no mitigation measures in place and substantial ongoing non-compliance.

The Court’s attention was also drawn to an article, annexed to the REF, in which the local dog activist group, Pittwater Unleashed, expressed their concern that the 3m proposed buffer zone in front of the seagrass bed, for the off-leash trial, was not workable.  This cast doubt on the effectiveness of the Council’s proposed mitigation measures for the off-leash trial.  

The correspondence from Crown Lands and NSW Fisheries setting out their preference for ocean beaches, rather than sensitive estuarine beaches, such as Station Beach, was also a focus during the hearing.  You may recall that both Crown Lands and NSW Fisheries expressed a strong preference for less sensitive beaches for dog use and required that Northern Beaches Council investigate other options. Council’s sole focus on Station Beach without satisfactorily investigating alternative options, has always been a serious flaw in their process from our perspective.   

The Council’s June 2020 resolution to take steps to have a development application prepared with respect to the off-leash trial (in the event the Council is unsuccessful in its defence of the August 2019 decision) was also noted.  We find this action by the Council incredulous given that the Court proceedings were well in train in June 2020.  As far as we know, this development application has not been progressed but the Council’s decision to prepare one certainly casts doubt on the Council’s processes and decision making to date.  

We will await the outcome of the Court decision and report once it has been delivered.