COASTAL ECOLOGY PROTECTION GROUP INC & ORS v CITY OF CHARLES STURT [2017] SASC 136 (21 September 2017)
Last Updated: 29 September 2017
SUPREME COURT OF SOUTH
AUSTRALIA
(Land and Valuation Division:
Application for Judicial Review)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated.
COASTAL
ECOLOGY PROTECTION GROUP
INC & ORS v CITY OF CHARLES STURT
Judgment of The Honourable Justice Blue
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY
REAL PROPERTY - CROWN LANDS - SOUTH AUSTRALIA
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - EXERCISE OF POWERS
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - EXERCISE OF DISCRETION - GENERAL POLICY RULES
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - ULTRA VIRES OR ILLEGAL EXERCISE OF POWER
Judicial review action challenging council decisions to adopt a community land management plan and construct a shared use path through sand dunes.
In April 2016 the defendant Council resolved to adopt a community land management plan relating to coastal community land under its control pursuant to section 196 of the Local Government Act 1999. The objectives recorded in the plan were “to protect the coastal dune system and coastal vegetation and to provide convenient and controlled public access to the beach and environs”.
The plaintiffs contend that the management plan is invalid or alternatively unlawful because:
1. the Council failed to comply with its public consultation policy in relation to the preparation and adoption of the management plan in breach of sections 50 and 197 of the Local Government Act 1999;
2. the management plan does not state performance targets or performance measures as required by section 196(3)(d) of the Local Government Act 1999;
3. the Council failed to have regard to mandatory relevant considerations, had regard to impermissible irrelevant considerations, proceeded on an incorrect misunderstanding and/or the decision was manifestly unreasonable.
The Council undertook public consultation in 2013 and 2014 in relation to the proposed construction of a coastal path between Grange and Semaphore Park. This resulted in the development of and public consultation in relation to four alternative options. Option 2 involved a three metre wide path constructed on or in the vicinity of a grassed strip immediately to the west of property boundaries. Option 1 involved a combination of a one and a half to two metre natural surface path in the same location together with a bikeway on Seaview/Military Roads.
After completion of public consultation, the Council administration devised a new option, designated Option 2B (Option 2 being redesignated Option 2A), involving the construction of a three metre wide path through the sand dunes.
In April 2016, the Council resolved to adopt Option 2 (without selecting between Option 2A and Option 2B) and that further consideration be given to, amongst other things, maximising privacy of residents and minimising environmental impacts. This resolution authorised Council administration if it thought fit to proceed with the construction of Option 2B.
The Council administration subsequently prepared a final alignment plan showing the location of the path as a combination of Option 2B (comprising a wooden boardwalk) through the dunes at the southern end and Option 2A (comprising a concrete path in the vicinity of the grassed strip) for the balance of the path.
In January 2017, the Council endorsed the final alignment plan prepared by the Council administration.
The plaintiffs contend that the April 2016 and January 2017 Council decisions are invalid or alternatively unlawful because:
1. they are contrary to the management plan and in particular the environmental protection objective;
2. alternatively, they are not authorised by any management plan because the purported management plan is invalid or unlawful for the reasons summarised above;
3. the Council failed to comply with its public consultation policy in breach of section 50 of the Local Government Act 1999;
4. the Council failed to have regard to mandatory relevant considerations, proceeded on incorrect understandings and made a manifestly unreasonable decision;
5. construction of the coastal path is not in furtherance of or alternatively is inconsistent with coast protection and natural features preservation dedications in respect of part of the land under section 18 of the Crown Land Management Act 2009.
The Council takes issue with the plaintiffs’ contentions and also contends that:
1. section 199 of the Local Government Act 1999 does not impose a legal obligation on a council to manage community land in accordance with a management plan or alternatively does not apply to development as opposed to maintenance or alternatively it was only required to manage it in accordance with its own assessment of compliance with the management plan;
2. section 50 of the Local Government Act 1999 does not require a council to comply with its public consultation policy except insofar as it requires a council to take overt steps mandated by the Act itself;
3. its public consultation policy did not require it to take steps except steps mandated by the Act itself;
4. section 196(3) of the Local Government Act 1999 does not require a council to state performance targets or performance measures or alternately it only requires a council to state what it considers are performance targets and performance measures;
5. the Crown Land Management Act 2009 does not require a council custodian to act in compliance with a dedication or alternatively only requires a custodian not to act inconsistently with the dedication purpose;
6. the Local Government Act 1999 does not impose mandatory considerations, preclude considerations or require a decision not to be manifestly unreasonable;
7. the April 2016 and January 2017 decisions are not amenable to review on the grounds of failure to have regard to mandatory considerations, having regard to impermissible considerations or making a manifestly unreasonable decision.
Held:
1. On the proper construction of the Council’s management plan, the access objective relates to access from the suburbs to the beach and not to a continuous path longitudinally through the dunes parallel to the coast (at [329]).
2. Section 199 of the Local Government Act 1999 requires a council to manage land in accordance with a community land management plan (at [342]), this requirement encompasses development and maintenance (at [349]) and this requirement is an objective one (at [353].
3. The April 2016 and January 2017 path decisions are contrary to the management plan (at [355]-[358]) and are unlawful (at [363]).
4. On the proper construction of the Local Government Act 1999, a council is required to comply with its public consultation policy insofar as it sets out steps beyond those mandated by the Act (at [385]-[392]), a council is required to follow all steps set out in its policy and not just those steps overtly set out therein (at [401]) and the requirement is an objective one (at [406]).
5. On the proper construction of the council’s consultation policy, the council was required to comply with it insofar as it required steps to be taken beyond those mandated by the Act (at [418]).
6. The Council acted in breach of its consultation policy in adopting the management plan (at [428]-[429]), the management plan is consequently unlawful (at [432]) and the April 2016 and January 2017 path decisions are consequently unlawful (at [433]).
7. The Council failed to comply with its consultation policy in respect of the path decisions (at [444]) and they are consequently unlawful (at [446]).
8. On the proper construction of subsection 196(3) of the Local Government Act 1999, a management plan is required to contain performance targets and performance measures (at [466]) and this requirement is objective (at [471]).
9. The management plan fails to state performance targets or performance measures (at [484], [488], [489]) and is consequently invalid (at [492]) and the April 2016 and January 2017 path decisions are consequently invalid (at [501]).
10. In making the April 2016 and January 2017 path decisions, the Council failed to have regard to a mandatory consideration, namely environmental considerations (at [620] and [633]) and the path decisions are consequently unlawful (at [654]).
11. In making the April 2016 and January 2017 path decisions, the Council did not fail to have regard to other alleged mandatory considerations or proceed under misunderstandings (at [604], [638] and [650]).
12. Part 3, Division 2 of the Crown Land Management Act 2009 requires the Crown and a custodian of dedicated land to use the land in accordance with the dedicated purpose (at [735]).
13. The test whether land is used in accordance with the dedicated purpose is whether the use is consistent with the dedicated purpose rather than whether it is in furtherance of the dedicated purpose (at [751]).
14. Construction of the proposed coastal path has not been proved to be inconsistent with the dedication purposes (at [771], [776]).
15. The plaintiffs are entitled to appropriate declaratory and/or injunctive relief (at [778]-[783]).
Crown Lands Act 2009 (SA) s 3, s 18, s 19, s 20, s 21, s 22, s 23, s 26, s 46; Crown Lands Alienation Act 1861 (NSW) s 1, s 3, s 5; Crown Lands Consolidation Act 1989 (NSW) s 6, s 80, s 84; Local Government Act 1999 (SA) s 6, s 7, s 8, s 50, s 92, s 123, s 151, s 156, s 193, s 194, s 196, s 197, s 198, s 199, s 200, s 201, s 202, s 207, s 223, s 232; Crown Proceedings Act 1992 (SA) s 9; Local Government Act 1993 (NSW) s 36; Waste Lands Alienation Act 1872 (SA) s 2, s 5, s 6, s 9, ss 12-44; Crown Lands Act 1929 (SA) s 5AA, s 244, referred to.
Council of the Municipality of Randwick v Rutledge (1926) 38 CLR 54; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Franklins Limited v Penrith City Council [1999] NSWCA 134; Hocking v The Southern Greyhound Racing Club Inc [1993] SASC 4226; (1993) 61 SASR 213; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2012) 214 CLR 1; Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; Mabo v Queensland (No 2) (1992) 175 CLR 1; Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 339 ALR 367; Notoras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230; Parramatta City Council v Hale (1982) 47 LGRA 319; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; Oshlack v Lismore City Council [1998] NSWLEC 227; Oshlack v Rous Water [2013] NSWCA 169; Seaton v Mossman Municipal Council (1996) 93 LGERA 1; Schroders v Shoalhaven City Council [2001] NSWCA 74; The State of New South Wales v The Commonwealth [1926] HCA 23; (1926) 38 CLR 74; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707; Williams v The Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, discussed.
COASTAL
ECOLOGY PROTECTION GROUP
INC & ORS v CITY OF CHARLES
STURT
[2017] SASC
136
Application for Judicial Review
BLUE
J.
- This is an action seeking prerogative, declaratory and injunctive relief in respect of decisions by the defendant to adopt a community land management plan in respect of coastal land under its care, control and management and to construct a shared-use path longitudinally through part of that coastal land.
- At the beginning of 2013 the defendant City of Charles Sturt (the Council) commenced consideration of the construction of a coastal path through 4.7 kilometres of public coastal land between Grange and Semaphore Park. This land, apart from the Tennyson Dunes Reserve which was under the control of the Minister for Sustainability, Environment and Conservation, was either owned by the Crown and under the care, control and management of the Council or owned by the Council and under its own care, control and management. Much of the land owned by the Crown was subject to dedication and reservations pursuant to the Crown Lands Act 1929 (SA) (the Former Crown Lands Act) which were continued as dedications pursuant to the Crown Land Management Act 2009 (SA) (the Crown Land Act). These included a dedication of certain land for coast protection and a dedication of certain other land for preservation of natural features (the Dedications).
- In February 2013 the Council commenced public consultation in relation to the proposed coastal path pursuant to its public consultation policy (the Consultation Policy) which it had adopted as required by section 50 of the Local Government Act 1999 (SA) (the Local Government Act or the Act).
- In August 2013, after initial consultation, the Council resolved to form a project reference group of community representatives to prepare a shortlist of draft design options for the coastal path based on community input to date (stage 1); undertake consultation to gather broad community feedback on a preferred design option from the shortlisted options (stage 2); and then consider community views and endorse an option to progress to detail design (stage 3).
- In September 2014 the project reference group completed stage 1 and recommended a coastal path comprising a combination of a 1.5 to 2 metre wide natural surface path near the western boundaries of the westernmost houses together with a three metre wide cycling path beside Seaview and Military Roads (Option 1). Other options supported by a small minority were a three metre wide natural surface path near the western boundaries of the westernmost houses (Option 2), a three metre wide path beside Seaview and Military Roads (Option 3) and a three metre wide path beside Military Road (Option 4). A report was prepared by a Council officer summarising the project reference group’s deliberations and a Planning Study was prepared by a Council consultant who had worked with the group. The Planning Study contained an extensive narrative describing existing conditions, including a detailed flora and fauna assessment, and contained plans, sections and photos showing the location of the path under the four options.
- In September to November 2014 the Council undertook stage 2 of the public consultation. Almost equal preferences were expressed by members of the community for Options 1 and 2, with the other options attracting little support.
- In February 2015, on instructions by Council administration, the Council’s consultant prepared a new Planning Study containing plans, sections and photos showing amongst others existing Option 2 redesignated Option 2A and a new option designated Option 2B with the path proceeding through the dunes. The Council did not engage in public consultation pursuant to the Consultation Policy in relation to Option 2B.
- In April 2016 the Council resolved to adopt a community land management plan relating to all coastal community land under its control pursuant to section 196 of the Local Government Act (the Management Plan). The objectives recorded in the Management Plan were “to protect the coastal dune system and coastal vegetation and to provide convenient and controlled public access to the beach and environs”.
- In April 2016 at the same meeting the Council resolved to adopt Option 2 from the February 2015 Planning Study and to delegate to Council administration the particular location of the path, including a choice between Option 2A and Option 2B (the 2016 Path Decision).
- The Council administration prepared a final alignment plan showing the location of the path representing a combination of Option 2B, but now comprising a wooden boardwalk rather than a concrete path, through the dunes at the southern end between Terminus Street and Hallam Terrace and Option 2A being a concrete path near the western boundaries of the westernmost houses for the balance of the path.
- In January 2017 the Council resolved to adopt the recommended final path alignment (the 2017 Path Decision). The Council delegated to the Council administration the power to approve variations to path alignment. The Council administration subsequently made two such variation decisions (the Delegated Decisions).
- The
plaintiffs contend that the Management Plan adopted by the Council in April 2016
is invalid or alternatively unlawful because:
- the Council failed to comply with the Consultation Policy in breach of sections 50 and 197 of the Local Government Act;[1]
- the Management Plan does not state performance targets or how the Council proposes to measure its performance against its objectives and performance targets as required by section 196(3)(d) of the Act;[2]
- the Council failed to have regard to mandatory relevant considerations, including consistency with other relevant official plans and policies about conservation, development and use of the land[3] and environmental protection;[4] had regard to irrelevant considerations;[5] proceeded on an incorrect understanding;[6] and the decision to adopt the Management Plan was manifestly unreasonable.[7]
- The
plaintiffs contend that the 2016 and 2017 Path Decisions and the Delegated
Decisions (collectively the Path Decisions) are invalid or
alternatively unlawful because:
- the construction of the proposed coastal path would be in breach of section 199 of the Local Government Act because:
(a) it is not in accordance with the Management Plan being inconsistent with the objective of protecting the coastal dune system and coastal vegetation;[8] or alternatively
(b) it is not in accordance with a management plan due to the invalidity or unlawfulness of the purported Management Plan adopted in April 2016;[9]
- the Council failed to comply with the Consultation Policy in breach of section 50 of the Act;[10]
- the Council failed to have regard to mandatory relevant considerations, including applicable official plans and policies[11] and environmental protection;[12] proceeded on incorrect understandings;[13] and made manifestly unreasonable decisions;[14]
- the construction of the proposed coastal path is not in furtherance of, and alternatively is inconsistent with, the coast protection and natural features preservation dedications under section 18 of the Crown Land Act.[15]
- The
Council takes issue with these contentions and makes the following additional
contentions:
- it was not required by section 199 of Local Government Act to manage community land in accordance with the Management Plan or alternatively it was only required to maintain it as opposed to developing it in accordance with the Management Plan or alternatively it was only required to manage it in accordance with its own assessment whether it was in accordance with the Management Plan;[16]
- it was not required by section 50 of the Act to comply with the Consultation Policy other than taking the overt steps mandated by subsection 50(4)[17] or alternatively it was only required to comply in accordance with its own assessment thereof;[18] and on the proper construction of the Consultation Policy it was not required to comply with it other than taking the mandatory subsection 50(4) steps;[19]
- it was not required by section 196(3)(d) of the Act to state performance targets or how it proposes to measure its performance against its objectives and performance targets[20] or alternatively it was only required to comply in accordance with its own assessment thereof;[21]
- it was not required by the Crown Land Act to act in compliance with the dedications or alternatively the requirement to act in accordance with a dedication was confined to not acting inconsistently with the dedication purpose;[22]
- it was not required by the Local Government Act to act as alleged in item 3 at [12] and [13] above; [23]
- the 2016 and 2017 Path Decisions are not amenable to review on the grounds advanced in item 3 at [13] above;[24]
- if the plaintiffs establish any of their contentions, it does not result in invalidity but only unlawfulness.[25]
- The Attorney-General intervenes pursuant to 9(2)(a) of the Crown Proceedings Act 1992 (SA) on issues of statutory construction, making submissions on amenability to review (the Council’s contention F) and the obligation of a custodian to act in accordance with dedications (the plaintiffs’ contention 4 and the Council’s contention D).
- The
major issues are:
- In relation to compliance with the Management Plan:
(a) does the access objective in the Management Plan address access between the suburbs and the beach or through any part of the Council coastal land and is the environmental objective paramount or equal to the access objective?
(b) does section 199 of the Act require a council to manage land in accordance with a community land management plan or is it merely aspirational?
(c) does any requirement encompass development and maintenance or merely maintenance of the land?
(d) does section 199 objectively require a council to manage community land in accordance with a community land management plan or does it merely require a council to manage the land in accordance with what it regards as being in accordance with the management plan?
(e) are the Path Decisions in accordance with the Management Plan?
(f) are the Path Decisions consequentially invalid or unlawful?
- In relation to the Consultation Policy:
(a) is a council required by section 50 of the Act to comply with its public consultation policy other than taking steps mandated by the Act?
(b) is a council required to follow all steps set out in its policy or only those steps set out overtly therein?
(c) is a council objectively required to comply with its policy or merely required to comply with what it regards as compliance with its policy?
(d) was the Council required by the Consultation Policy to comply with it generally or only insofar as it referred to mandatory steps set out in the Act?
(e) did the Council fail to comply with the Consultation Policy in respect of the Management Plan?
(f) is the Management Plan consequentially invalid or unlawful?
(g) are the Path Decisions consequentially invalid or unlawful?
(h). did the Council fail to comply with the Consultation Policy in respect of the Path Decisions?
(i) are the Path Decisions consequentially invalid or unlawful?
- In relation to the content of the Management Plan:
(a) is a community land management plan required to contain performance targets and a statement how the council proposes to measure its performance against its objectives and performance targets or are these merely aspirational?
(b) is a community land management plan objectively required to contain performance targets and a statement how the council proposes to measure its performance against its objectives and performance targets or is it merely required to contain what the council regards as performance targets and what it regards as a statement of how it proposes to measure its performance against its objectives and performance targets?
(c) does the Management Plan state performance targets and how the Council proposes to measure its performance against its objectives and performance targets within the meaning of section 196?
(d) is the Management Plan consequentially invalid or unlawful?
(e) are the Path Decisions consequentially invalid or unlawful?
- In relation to the Management Plan decision:
(a) was the Council required to have regard to the alleged considerations, and did it fail to do so?
(b) was the Council not permitted to have regard to the alleged considerations, and did it do so?
(c) did the Council proceed under a misunderstanding, and does it vitiate the decision?
(d) was the decision to adopt the Management Plan manifestly unreasonable, and does it vitiate the decision?
(e) is the Management Plan consequentially invalid or unlawful?
(f) are the Path Decisions consequentially invalid or unlawful?
- In relation to the Path Decisions:
(a) was the Council required to have regard to the alleged considerations, and did it fail to do so?
(b) did the Council proceed under a misunderstanding, and does it vitiate the decision?
(c) were the Path Decisions manifestly unreasonable, and if so does it vitiate them?
(d) are the Path Decisions amenable to review on any of these grounds?
(e) are the Path Decisions consequentially invalid or unlawful?
- In relation to the Dedications:
(a) is the Crown or a custodian required to use land in accordance with a dedication or is a dedication merely aspirational?
(b) is any requirement to act in accordance with a dedication breached by acting otherwise than in furtherance of the dedication purpose or by acting inconsistently with the dedication purpose?
(c) is construction of the coastal path pursuant to the Path Decisions contrary to the requirement to act in accordance with the Dedications?
(d) are the Path Decisions consequentially invalid or unlawful?
A. BACKGROUND
The plaintiffs
- The
first plaintiff
Coastal Ecology Protection Group
Incorporated (Coastal
Ecology) was formed some time before 1997 and was incorporated in 2001. Its
objects include the protection and enhancement of the natural
coastal
environment of metropolitan Adelaide, including preserving the integrity and
ecology of the coastal sand dune system from
the Grange Jetty to West Lakes
Shore. - The second plaintiff Dr Lorimer Judith Packer has been an owner of and lived in a beachfront property on Seaview Road Tennyson since 1995. The term beachfront was consistently used by the parties between 2013 and 2017 and during the trial to refer to that part of the coastal dune system that is immediately adjacent to the western boundaries of the westernmost housing properties (beachfront). Depending on location, it may be 100 metres or more from the water.
- Dr Packer has for many years taken an active interest in the dunes in the vicinity of Tennyson, including planting seeds, watering plants and regeneration of the habitat. She has been a member of Coastal Ecology since 1997. She was a member of the Coast Park Project Reference Group established by the Council referred to below.
- The third plaintiff Professor Donald Howie has owned and lived in a beachfront property on Seaview Road Tennyson since 1993. He has for many years taken an active interest in the dunes in the vicinity of Tennyson, including planting seeds, watering plants and removing weeds and lawn. He has been a member of Coastal Ecology since 2003. He was a member and the chairperson of the Project Reference Group.
The defendant
- The Council is the local government council responsible under the Local Government Act in respect of an area (the Council Area) comprising the north western sector of Metropolitan Adelaide.
- The Council Area is bounded to the north near the Gulf of St Vincent by Bower Road Semaphore Park (the northern boundary). It is bounded to the south near the Gulf of St Vincent by a line broadly parallel with and to the south of West Beach Road encompassing the West Beach Caravan Park (the southern boundary). It is bounded to the west by the Gulf of St Vincent (the western boundary). The western boundary extends approximately 11.5 kilometres from the West Beach Caravan Park to Bower Road Semaphore Park.
- There
are seven beachside suburbs within the Council area:
- West Beach (south of a point between Mellor Street and Ozone Street);
- Henley Beach South (south of Henley Beach Road);
- Henley Beach (south of Grange Road);
- Grange (south of Fort Street/Trimmer Parade);
- Tennyson (south of but including Mawson Close);
- West Lake Shore (south of but including Sandpiper Place);
- Semaphore Park (south of Bower Road).
- Military
Road is the western-most arterial road running south to north through the
Council area. Land within the Council area lying
to the west of Military Road
can be divided into three areas:
- A southern area south of Bournemouth Street Tennyson. Seaview Road runs through the entire length of this area (west of Military Road) from Chetwynd Street West Beach to Bournemouth Street Tennyson. Intermittently there is an Esplanade west of Seaview Road with houses on its eastern side and open space public land on its western side. Otherwise there are houses on the western side of Seaview Road with rear boundaries adjoining open space public land on their western side;.
- A middle area between Bournemouth Street Tennyson and Shore Court West Lake Shore. This section has three separate blocks of housing allotments to the west of Military Road. Each block has one or more local courts leading off Military Road. The westernmost houses in these three blocks have rear boundaries adjoining open space public land on their western side. The blocks are separated by two areas of open space adjoining Military Road;
- a northern area between Shore Court West Lake Shore and Bower Road Semaphore Park. In the southerly two thirds of this section there are local courts leading off Military Road with housing in layouts similar to the housing blocks in the middle area. There is then an Esplanade with layouts similar to the Esplanade in the southern area. At the northernmost end there is open space adjoining Military Road.
- Between 2013 and 2017, the Council’s elected members comprised the Mayor and 16 councillors. Up to November 2014 the Mayor was Ms K Alexander and thereafter the Mayor was Angela Evans.
- Between 2013 and 2017, the Council had a Chief Executive Officer (initially M Withers and then Paul Sutton) to whom all Council officers and staff reported. There were three General Managers who reported to the Chief Executive Officer: the General Manager Asset Management Services (Jan Cornish), General Manager City Services and General Manager Corporate Services.
- Ms Cornish was the General Manager with overall responsibility for the design and construction of a coastal path and for community land management plans within the Council. The Manager Urban Projects (Craig Daniel) nominally reported to the General Manager City Services but substantively reported to Ms Cornish in respect of the design and construction of a coastal path. Valli Morphett was the Community Consultation Coordinator and reported to Mr Daniel. Kelly Mader was in the Natural Resource Management Team. Jamie Hosking was Coordinator Urban Design. Tony Clisby was a property services officer and acting coordinator reporting ultimately to Ms Cornish. Allison Bretones was the Manager Open Space. Doris Gambiraza worked in the Council’s marketing and communication area.
The intervenor
- The Attorney-General intervened in the action as of right pursuant to section 9(2)(a) of the Crown Proceedings Act 1992 (SA) (the Crown Proceedings Act). Ultimately the Attorney-General makes submissions on two topics. The first topic is the amenability to review of the coastal path decisions on the grounds of failure to take into account relevant considerations, taking into account irrelevant considerations and unreasonableness. The second topic is the plaintiffs’ challenge to the coastal path decisions on the ground that they are contrary to the Dedications.
History of coastal land
- In 1836 when Europeans arrived in South Australia, there was a barrier dune system extending along the Adelaide metropolitan beaches from Seacliffe to Taperoo (the dune system). The dune system formed over thousands of years. It consisted of a landward barrier dune ridge approximately ten to 15 metres high with a series of seaward dune ridges separated by swales (valleys), with the height of the dune ridges generally progressively reducing seawards. The dunes had an average width between 200 and 300 metres. The dune system was colonised by native dunal shrubs and grasses and populated by various animals including reptiles, birds and insects.
- The Torrens River discharged its waters on the landward side of the barrier dune to form wetlands and lagoons. The waters turned northwards and southwards but predominantly northwards behind the barrier dune. The waters did not generally discharge into the Gulf but remained in the wetlands. Only in times of flood, the waters that moved northwards discharged into the Gulf around the northern extremity of the dune system and the waters that moved southwards discharged into the Gulf in the area of Patawalonga Creek at Glenelg.
- The prevailing currents and winds in and over the Gulf are from the south and hence the prevailing sand movement is from south to north. Over the course of at least 7,000 years, the prevailing sand movement resulted in the progressive northward extension of the barrier dune to create the Lefevre Peninsula and Torrens Island. The waters discharged from the Torrens River progressively moved further north, incorporating the western arm of the Port River, before discharging into the Gulf during floods.
- After 1836, dunes were removed and deteriorated through grazing, sand mining, wood gathering and other activities. Villages were developed at Glenelg and Port Adelaide. Coastal villages were later developed at Brighton, Henley Beach, Grange, Semaphore and Largs Bay. The top of the dune system was flattened and its height reduced so that roads and houses could be constructed. However, the coastal villages remained isolated until after 1938.
- In 1938, a channel was cut through the dunes near Burbidge Road at West Beach to enable the River Torrens to flow directly into the Gulf. In the post-war economic boom period of the 1950s and 1960s, the areas along the coast between the coastal villages were developed, with the last development being the West Lakes Development Scheme in the early 1970s.
- With the exception of the Tennyson Dunes Reserve, by the beginning of the 1970s the barrier dune ridge had been flattened all along the metropolitan coast and varying amounts of seaward dunes had also been levelled. This left varying widths of sand dunes to the west of the houses along the metropolitan coast.
- The discharge of the waters from the River Torrens at West Beach gradually killed the seagrass up to approximately 1 kilometre offshore. The seagrass meadows had trapped large quantities of sediment and comprised a buffer to the wave energy approaching the shore. With the killing of the seagrass, there was a dramatic increase in wave energy particularly during winter storms. By the 1960s this resulted in very substantial erosion of the sand in the sand dunes.
- In 1972, the State government enacted the Coast Protection Act 1972 (SA) (the Coast Protection Act). The long title of that Act was “an Act to make provision for the conservation and protection of the beaches and coast of this State; and for other purposes”. That Act established the Coast Protection Board with the responsibility of protecting the coast from erosion, damage, deterioration, pollution and misuse and restoring the coast that had been subjected thereto. Since the early 1970s the Coast Protection Board has undertaken sand replenishment whereby sand is transported from areas where it has accreted to areas where it has eroded.
- In the area between Terminus Street Grange and Third Avenue Semaphore Park, in the absence of sand management undertaken by the Coast Protection Board, some parts of the coast would be erosional and other parts would be accretional. In broad terms, Grange would be accretional, Tennyson would be erosional, West Lakes Shore would be stable and Semaphore Park would be erosional.
- By the 2010s the only substantial dunes remaining were dunes at Tennyson and North Brighton (the Minda dunes). The dunes at Tennyson incorporate both the full width dunes in the Tennyson Dunes Reserve and the partial width dunes to the south and north of the Tennyson Dunes Reserve (collectively the Tennyson dunes). There is little left of the Minda dunes, being only the very back part of the dune landward of the main ridge which is gone. The remnant Minda dune is situated on private land.
The Dedications
- In the 1970s, by a series of proclamations the Governor dedicated or reserved various sections of the public coastal land owned by the State to specific purposes pursuant to subsections 5(d) and (f) of the Former Crown Lands Act and at the same time declared that that land should be under the care, control and management of the relevant predecessor of the Council pursuant to subsection 5(f1) of that Act.[26] It appears that some of the public coastal land had originally been dedicated as early as 1889 under the Crown Lands Act 1888 (SA).
- In general the dedications in respect of the public coastal land were not tendered but the schedule to the Management Plan shows that each of the 22 sections of the Council coastal land owned by the State was the subject of a dedication.
- The first Dedication upon which the plaintiffs rely is dated 10 October 1974 in respect of sections 993 and 994 hundred of Yatala reserving the lands as a reserve for the “preservation of natural features” and declaring that they shall be under the care, control and management of the City of Woodville (the Natural Features Dedication). The land the subject of this dedication (the Natural Features Dedication Land) is the Council coastal land extending for about 150 metres between about 90 metres south of Hillview Avenue and about 60 metres north of Hillview Avenue (section 993).
- The second Dedication is dated 29 January 1976 in respect of sections 987 and 988 hundred of Yatala reserving the lands for the purposes of a “coastal protection reserve” and declaring that they shall be under the care, control and management of the Corporation of the City of Woodville (the Coastal Protection Dedication). The land the subject of this dedication (the Coastal Protection Dedication Land) is the Council coastal land between Fort Street and the southern boundary of Moredun Reserve (just south of Moredun Street) (section 987) and a section of the Council coastal land extending from the northern boundary of Moredun Reserve for about 40 metres to the north towards Hillview Avenue (section 988).
The coastal land
- The public land lying between the western boundaries of the westernmost housing allotments (the property boundaries) and the Gulf along the Council’s 11.5 kilometre western boundary (the public coastal land) is owned either by the Council or the State of South Australia. The public coastal land situated in the middle area referred to at paragraph [24] above (the Tennyson Dunes Reserve) is vested in the Minister for Sustainability, Environment and Conservation and under his care, control and management. Subject to immaterial exceptions,[27] the balance of the public coastal land is either owned by the Council or is owned by the State but under the care, control and management of the Council (the Council coastal land).
- The term Tennyson dunes is ambiguous. Sometimes it is used to refer only to the Tennyson Dunes Reserve. More often it is used to refer to the dunes centred at Tennyson which extend from Grange to Semaphore Park. As noted at [38] above, I use the term Tennyson dunes in the latter sense and the term Tennyson Dunes Reserve in the former sense.
- The Council coastal land is generally either open space (sand, sand dunes, grassed or parking areas) or roadways and footpaths in the case of the Esplanades. The Council coastal land is the subject of the Management Plan impugned by the plaintiffs.
- At the beginning of 2013 the Council commenced consideration of the construction of a path or paths longitudinally through the remaining 40 per cent of the public coastal land (the residual coastal land) from Terminus Street, Grange to Third Avenue, Semaphore Park (4.7 kilometres).
- In April 2016 and January 2017, by the Path Decisions the Council resolved to construct a path longitudinally through a total of 3.2 kilometres (the subject coastal land) of Council coastal land from Terminus Street Grange to Bournemouth Street Tennyson (1.9 kilometres) (the southern section) and from Shore Court West Lake Shore to Third Avenue Semaphore Park (1.3 kilometres) (the northern section).
- In general terms, houses have been built on the eastern part of the original coastal dunes along the length of the southern and northern sections. There is a strip of land of varying width immediately to the west of the property boundaries on which exotic grasses and/or exotic shrubs have been planted or have grown (the grassed strip). The grassed strip is in most areas relatively flat or with a relatively constant slope towards the west, having been landscaped in the past, although in some areas it retains to a greater or lesser extent a natural irregular slope. As a result of encroachment, there is no hard and fast boundary between the grassed strip and the more natural dunes to the west.
- In the southern section, the width of the grassed strip varies as one travels from south to north. Between Terminus Street and the vicinity of Fort Street, it is relatively wide being on average ten to 15 metres wide. Between the vicinity of Fort Street and Hallam Terrace, it is relatively narrow being on average four to nine metres wide. Between Hallam Terrace and Moredun Reserve, it is on average eight to 12 metres wide.
- In the northern section, the width of the grassed strip tends to be more uniform. Between Shore Court and Mirani Court, it is generally ten to 12 metres wide. Between Mirani Court and Third Avenue, it is generally 17 to 30 metres wide.
- In general, there are informal paths along the grassed strip in both the southern and northern sections. Members of the public are free to walk northwards or southwards along the grassed strip and commonly do so.
- To the west of the grassed area, the land generally declines and then rises again to a ridge (the Swale).[28] There are then a further swale or swales and a further ridge or ridges to the west of the Swale, with the heights of the ridges and the differentials between the heights of the ridges and the lowest point of the swales generally being progressively less as one proceeds towards the sea. The western-most dune is called the “foredune”. There is then a gently sloping more or less flat beach to the water. The maximum width between the property boundaries and the sea is approximately 80 metres and it is significantly less in parts of the southern and northern sections. The Swale is generally of greater width than the more seaward swale or swales.
- For several decades, the dunes have been fenced off on both the landward side and the beach side. There have been a series of fenced off narrow trails giving public access through the dunes to the beach (the east-west trails). On average there is one trail at the end of each east-west roadway giving access to the beach and one trail approximately halfway between such roadways.
The Swale
- The width of the Swale between Terminus Street and Hallam Terrace varies between about ten and 20 metres. Dr Semeniuk calculated the area of the Swale between Terminus Street and Hallam Terrace based on aerial photographs at 14,870 square metres. The distance between Terminus Street and Hallam Terrace is 950 metres and hence the average width of the Swale in this area is about 15 metres. Dr Semeniuk calculated that a six metre wide construction zone for construction of a boardwalk would occupy 38 per cent of the area of the Swale and a three metre wide boardwalk would occupy 19 per cent of the area of the Swale. I accept this evidence.
- As a generality, the width of the Swale decreases as one proceeds northwards from Hallam Terrace Tennyson towards Third Avenue Semaphore Park.
- Mr Hosking calculated the area between the property boundaries and the foredune over the southern section (a length of 1,720 metres) at 56,970 square metres, implying an average width between the property boundary and the foredune of 43 metres. This width is obviously much greater than the width of the Swale because it includes land to the east and west of the Swale. Mr Hosking calculated the area between the property boundary and the foredune over the northern section (a length of 1,320 metres) at 106,690 square metres, implying an average width between the property boundary and the foredune of 62 metres. Mr Hosking calculated that a six metre wide construction zone for construction of a boardwalk through the Swale would occupy 14 per cent of the area of the southern section and nine per cent of the area of the northern section; and a three metre wide boardwalk through the Swale would occupy seven per cent of the area of the southern section and five per cent of the area of the northern section. I accept this evidence.
- Dr Semeniuk gave evidence that the “soil” at the bottom and sides (especially the lower sides) of the Swale is of greater richness and has greater nutrients compared to the soil at and towards the top of the ridges. The area at the bottom and sides of the Swale generally is better protected from the wind. It has greater water or moisture. It has more plants, larger plants and a greater diversity of plants. This is a result amongst other things of differences in soil, nutrients, moisture, wind and temperature. I accept this evidence. Some of these matters are referred to or implied in the Council’s Vegetation Management Plans and the Mader report. I infer that there are also greater numbers and diversity of animal life (birds and reptiles) at the bottom and sides of the Swale than at and towards the top of the ridges.
- Dr Semeniuk gave evidence that the Swale generally has greater richness of soil, protection from the wind and number, size and diversity of plants than more seaward swales. I accept that evidence.
The coast park initiative
- In 2000 the Minister for Planning announced a vision for a coastal linear park extending 70 kilometres along the coast from Sellicks Beach to North Haven (the Coast Park). A steering committee comprising representatives from bodies including Planning SA, Transport SA, the Department of Environment and Heritage and the Onkaparinga, Holdfast Bay, West Torrens, Charles Sturt and Port Adelaide Enfield Councils was formed by Planning SA. Planning SA commissioned Parsons Brinckerhoff to prepare a concept plan in conjunction with the steering committee.
- In 2001 the Adelaide Metropolitan Coast Park Concept Plan report by Parsons Brinckerhoff (the Coast Park report) was released. The report referred to the Coast Park as being the area of public open space along the coast. The report identified the vision for the Coast Park as:
To provide and sustain a healthy, diverse and accessible Coast Park to be enjoyed by present and future generations
and the goals as:
- Maintain and enhance open space at linkages ensuring free, safe and convenient access and facilities are available for all ages and abilities.
- Recognise, value and reinforce the diversity of the coastline, ensuring that development takes place in appropriate locations and that social, economic and environmental values are achieved.
- Provide appropriately for traffic and parking, ensuring convenient access for all people wishing to use the coast, taking into account the need for safety for pedestrians and cyclists.
- Recognise, value, protect and where possible, enhance sandy beaches, seagrass beds, remnant dunes, coastal reserves and buffers, and water quality along the coast.
- Pursue every opportunity to educate the community and decision makers on the vision for, and the special value of, the coast, and the lessons learnt about the management of our coastline.
- The report identified several proposals, including proposals for linkages. Passages under the heading “3.3 Linkages Along the Coast” referred to a linear public pathway through the Coast Park and included:
There is a recognised demand for a public pathway, incorporating recreational cyclist facilities, along the entire length of the Adelaide coast....
Over the next ten years action will be taken to complete the linkages along the coastline north of Kingston Park and to extend the pathway along the southern coastline. The path will incorporate, where necessary, boardwalks and cantilevered viewing platforms to ensure access along the entire coast. In environmentally sensitive areas the location of the shared path will require further investigation and consultation with the community. The path must meet minimum width and surface requirements to be suitable for shared use by pedestrians, cyclists, wheelchairs, prams, roller blades and other users.
...
Significant issues to be addressed include:
1. Perceptions of Private Ownership
There are key sections of the coast where private development is either close to the coastline or has encroached onto the coastal foreshore reserve.... where necessary, privately owned land should be acquired to ensure the ongoing sustainability of the coast and to provide public access to this important public resource.
2. Environmental Considerations
In some environmentally sensitive areas it may not be possible to ameliorate the impacts of the creation of a shared use path. Under these circumstances there may need to be a compromise with the location and/or form of the shared path. The shared path should not proceed if its development will be detrimental to the stability of the coastline or environmental protection imperatives.
- Passages under the heading “3.6 Conservation Areas” included:
Several land parcels and offshore features have general conservation value.
In addition to the areas specifically identified in Chapter 2.1 of this report, limited areas of remnant dunes are identified along the coast. Some of the more significant areas are included within designated parks under the NPWS system. However, important remnant dunes also exist on private council-owned land for example, at Minda, West Beach and Tennyson, while successful dune rebuilding programs are in place along many other parts of the coast.
The Council’s public consultation policy
- On 26 August 1999 the Act came into operation. Section 50 required each local government council to prepare and adopt a public consultation policy.
- In March 2000 the Council adopted a Public Consultation Policy (the Policy) and Public Consultation Implementation Procedure (the Procedure). The Policy and Procedure cross refer to each other and it is common ground that the two documents in conjunction comprise the Council’s Public Consultation Policy within the meaning of the Act.
- Each document was reviewed every two years, although not necessarily at the same time. The Policy was last substantively amended in March 2013. The Procedure was last amended in November 2012. There were two minor amendments made to the Policy in March 2015 and both were immaterial to the issues in this action. I refer to the combination of the Policy and the Procedure as in force from March 2013 onwards as the Consultation Policy.
- Clause
3.2 of the Policy defines five ascending levels of engagement (referenced from
the International Association of Public Participation
Spectrum) representing the
depth and complexity of the community engagement project. The levels of
engagement are:
- Inform: Council provides balanced and objective information to the community which listens;
- Consult: Council provides options and the community contributes feedback on concerns and preferences;
- Involve: Council works with the community to ensure concerns and aspirations are understood and considered and the community participates;
- Collaborate: Council works in partnership with the community with project ‘ownership’ shared equally;
- Empower: Council delegates final decision-making power to the community.
- Clause 3.2 of the Policy provides that the level of engagement is determined during the project planning phase and depends on project complexity, community interest, impact, political sensitivity, timelines and resource availability.
- Clause 3.3 of the Policy and clause 3.2 of the Procedure provide that Council members are responsible for approving consultations with an engagement level of Involve or higher and the Chief Executive Officer is responsible for approving consultations with an engagement level of Consult or lower.
- Clause 3.2 of the Procedure contains a level selection tool that can be used to assist in determining the appropriate level of engagement. This is a table showing degree of impact and political sensitivity on the vertical axis and degree of project complexity on the horizontal axis. However, clause 3.2 makes it plain that the table is only a potential tool and ultimately it is necessary to make a judgment call as to the level of engagement.
- Clause 3.3 of the Policy requires Council members when making final decisions to consider the outcomes of community engagement activities and weigh up and deliberate the information, facts and recommendations provided. Clause 4.1 of the Procedure requires Council members to consider diverse community views, facts and information presented. Clauses 4.2 and 4.1 (second occurring) of the Procedure require the consultation coordinator to provide a community feedback report to assist elected member decision making in the Chamber.
- Clause 3.4 of the Policy addresses public consultation requirements prescribed by the Act in respect of defined decisions. Clause 3.4 provides that “in these instances Council must comply with the [A]ct and/or follow the steps outlined in the Public Consultation Implementation Procedure”. However, clauses 1 and 3 of the Policy make it plain that the Consultation Policy applies generally to decisions by the Council and is not confined to decisions in respect of which the Act provides that it is mandatory for the Council to engage in community consultation.
Council’s plans and policies
- In 2005/2006, as part of the Coast Park initiative, the State government provided funding to councils to prepare vegetation management plans in respect of land within the proposed Coastal Reserve. The vegetation management plans were prepared not only in connection with the proposed Coast Park but more generally to address management issues which threaten the integrity of the region’s coastal native vegetation. The Department of Environment and Heritage in partnership with the Council prepared a series of vegetation management plans in respect of the coastal land including the Vegetation Management Plan Henley Beach to Tennyson Coastal Reserve in January 2006 (the Southern Vegetation Management Plan) and the Vegetation Management Plan Semaphore Park Coastal Reserve in September 2006 (the Northern Vegetation Management Plan).
- The purpose of the Vegetation Management Plans is described at page 2 as follows:
Within the City of Charles Sturt there are a number of management issues which threaten the integrity of the region’s coastal native vegetation. These issues have been identified as weed and pest animal invasion, pedestrian access, stormwater discharge, erosion and fire. A coordinated approach to management is crucial to prevent further degradation and to enhance the natural biodiversity of these fragile coastal environments.
Within this context, the City of Charles Sturt has seen a need to produce a series of practical, issue specific, management plans to guide the implementation of native vegetation enhancement works within the dune system.
- The Southern and Northern Vegetation Management Plans address conservation value as follows:
The area is of importance as:
- A coastal dune system along the highly modified metropolitan coastline;
- It provides habitat and food resources for local birds, reptiles and insects in an urban area;
- It forms part of a potential significant corridor for indigenous fauna along the coastal strip between the Port Adelaide Enfield and Adelaide Shores dunes and potentially further along the coast;
- It contains indigenous plant species of local and regional significance;
- It has potential to reinstate pre-European plant and animal communities;
- It contains significant patches of remnant native fauna, which are of local conservation significance.
- The Southern and Northern Vegetation Management Plans set out the following aims and objectives:
The aims of this Management Plan are to:
- Protect and restore native vegetation, particularly those species of conservation significance;
- Increase the area of native vegetation within the Reserve;
- Protect existing native fauna and provide habitat and conditions that encourage their return (i.e. creation of habitat linkages/corridors);
- Contribute to the management of the potential and actual impact of fire on the Reserve in accordance with other management objectives;
- Encourage and support community participation in dune management and foster an appreciation of Reserve values within the wider community;
- Develop and recommend strategic actions for vegetation management and rehabilitation within the Reserve for Council, contractors and environmental, school and other community groups.
The objectives of this Management Plan are to ensure that:
- The extent of weed invasion is reduced and native vegetation increased;
- Populations of feral animals are controlled;
- The Reserve is used appropriately;
- The number of access paths are minimised and those present are designed to reduce informal pedestrian access and are correctly aligned to prevent erosion (i.e. blowouts);
- Reserve boundaries are managed consistently with other management objectives and a cooperative approach involving adjacent land managers continues;
- An adaptive management approach is adopted, whereby management directions are regularly reviewed and adapted according to changes in the dune environment over time and as further information becomes available.
- The Southern and Northern Vegetation Management Plans identify 21 indigenous species of flora within each coastal reserve. The Northern Vegetation Management Plan identifies six species of reptiles and 60 species of birds in the Semaphore Park Coastal Reserve.
- In April 2008 the Council adopted an Environmental Sustainability Policy. The versions in force at the relevant times were the versions adopted in December 2013 and September 2016. The Policy was largely an umbrella policy that referred to and incorporated the Council’s current environmental plan, being initially “Towards One Planet Living: Greening the Western Suburbs 2008 – 2013” (the One Planet Environmental Plan) and then “Living Green to 2020: Living Green Environmental Plan 2014 – 2020” (the Living Green Environmental Plan).
- In 2008 the Council adopted the One Planet Environmental Plan. The Plan included a commitment to continue to ensure Council works are planned, designed and implemented in a manner that cares for and protects native vegetation and the environment. It cross-referred to the Council’s Community Plan, but this plan was not tendered.
- In 2014 the Council adopted the Living Green Environmental Plan. The Plan includes a commitment to continue to retain vegetation, improve habitat opportunities in open space areas and create artificial habitats; and to conserve, monitor and protect sites of biodiversity significance. It cross-refers to the Council’s Corporate Plan, but this plan was not tendered.
The coastal path to 2013
- In 1998 the Council constructed a shared use path for 950 metres between South Street and Marlborough Street. This was funded entirely by the Council.
- In 2003 the Council commenced consideration of the construction of a concrete shared use path for 590 metres between the Henley Sailing Club West Beach and Ozone Street Henley Beach South. The Council engaged Parsons Brinckerhoff to manage the design and construction of the path and Atwood Management Services to conduct a comprehensive consultation process. The Council sought feedback on proposed layouts and design from the Community Coastal Reference Group. The Council conducted a workshop in March 2004 in which the consultant team presented options. Residents attended a meeting in February 2005 to view concept plans and speak with the designers. The path was constructed in 2006. This was funded entirely by the State government.
- In 2006 the Council commenced consideration of the construction of a concrete shared use path for 390 metres between Grange Jetty (Jetty Road) and Terminus Street Grange. The Council engaged Fuller & Associates to undertake community consultation (encompassing the broader Grange Jetty Precinct Master Plan) including community workshops, meetings with local traders and meetings with local elected members. The path was constructed in 2009. This path and all subsequent paths were funded 50 per cent by the Council and 50 per cent by the State government.
- In 2007 the Council commenced consideration of the construction of a concrete shared use path for 1,180 metres between the Southern Boundary and Henley Sailing Club West Beach. The Council undertook consultation with community and special interest groups including newsletters, stakeholder interviews, workshops and an Open Day. Concept plans were prepared in consultation with residents and stakeholders. The path was constructed in 2009.
- In 2007 the Council commenced consideration of the construction of a concrete shared use path for 340 metres between Henley Beach Road and South Street Henley Beach. The Council undertook consultation including presentation of concepts by the designer at an Open Day. The path was constructed in 2009.
- In 2008 the Council commenced consideration of the construction of a concrete shared use path for 680 metres between Recreation Parade and Bower Road Semaphore Park. The Council discussed four options with local community members and key stakeholder groups and then presented concept plans to the community for feedback. The path was constructed in 2011.
- In 2009 the Council commenced consideration of the construction of a concrete shared use path for 1,020 metres between Ozone Street and Henley Beach Road Henley Beach South. The Council presented three options to the community to consider. The Council then engaged ETHOS Consulting to consult with residents and key stakeholders to conduct a comprehensive consultation process. There was then a community meeting at which members of the community voted on the three options. The path was constructed in 2013.
- In 2011 the Council commenced consideration of the construction of a concrete shared use path for 480 metres between Grange Road and Grange Jetty (Jetty Road) Grange. The path was constructed in 2012.
- In 2011 the Council commenced consideration of the construction of a concrete/bitumen shared use path for 650 metres between Marlborough Street and Grange Road Grange. The Council undertook a three stage consultation process, including initial feedback from the community followed by two public meetings conducted by an external consultant Ms Hirst. The path was constructed in 2013.
- In 2011 the Council commenced consideration of the construction of a concrete/bitumen shared use path for 380 metres between Third Avenue and Recreation Parade Semaphore Park. The Council undertook a three stage consultation process, including initial feedback from the community followed by two public meetings conducted by an external consultant Ms Hirst. The path was constructed in 2014.
The coastal path 2013 onwards
- In 2013 the Council commenced consideration of the construction of a path for the remaining 4.7 kilometres between Terminus Street Grange and Third Avenue Semaphore Park.
Council meeting and resolutions
- On 29 January 2013 there was a general meeting of Council members. The Council was provided with a report by the administration recommending that the Council engage in pre-engagement consultation with key stakeholders and individuals and undertake preliminary research before deciding on a community engagement plan.
- The Council resolved to endorse the pre-engagement and preliminary research approach as included in the report and on completion that a further report be presented to Council with the outcomes of that work and a proposed comprehensive community engagement plan.
Pre-consultation
- In
February and March 2013 the Council’s Community Engagement Coordinator
undertook a series of pre-consultation meetings with
81 persons identified as
key stakeholders and interested individuals. The persons consulted were:
- representatives of four dunes groups (Sandpiper Dune Group, Tennyson Dunes Group, Wild Endangered Dunes Group and Coastal Ecology);
- representatives of the Western Adelaide Coastal Residents Association;
- representatives of two Bicycle User Groups (Charles Sturt and Port Adelaide);
- the Charles Sturt Coastal Reference Group;
- representatives of the South Australian Herpetology Group;
- local residents;
- interested individuals.
- Suggestions made for community consultation included an early forum at which different views could be expressed without debate and a project reference group to work collaboratively with Council staff in the planning and delivery of the Coast Park project. Strong sentiment was expressed that the Council should collaborate with community members throughout the consultation project with community members being actively involved.
- In April 2013 an 11 page report entitled “Coast Park Grange to Semaphore Park Pre-Consultation Summary Report” was prepared by Council administration (the pre-consultation report). It described the pre-consultation as summarised above.
Council meeting and resolutions
- On 22 April 2013 there was a general meeting of Council members. The agenda included an eight page report by the General Manager Asset Management Services (Ms Cornish) summarising the pre-consultation report and recommending that a Speak Out consultation event be conducted on 4 June 2013. Appendix A comprised the pre-consultation report.
- The
report identified the objective of the Speak Out event as being:
- Provide community members and groups with the opportunity to share ideas and deliberate the future of Coast Park Grange to Semaphore Park.
- Gather community feedback to assist in the development of a set of principles and consultation approaches for the Coast Park project.
- The Council resolved that the Speak Out event be conducted in the terms recommended by Council administration.
Speak Out #1
- Before the Speak Out (Speak Out #1) was conducted, the Council created an interactive display in the “internal street” which showed the pre-consultation results.
- The
Speak Out event was conducted on 4 June 2013. 14 members of the community spoke
at the Speak Out event, which was attended by
141 people. Feedback was given by
community members to the Council by:
- the 14 speakers;
- attendees writing comments on post-it notes on a five metre long aerial photograph;
- open feedback forms;
- feedback stations in the internal street.
- In
addition to such feedback, members of the community could make comments via:
- an online discussion forum on the Your Say Charles Sturt website active between 27 May and 14 June;
- submissions in hard copy or electronically.
- The Council also conducted two workshops on 30 May and 16 July with 20 key stakeholders to develop a draft set of principles for the project. The 11 principles developed included privacy and security of adjacent homeowners and protection and enhancement of the biodiversity and heritage value of the Tennyson dunes (incorporating the Tennyson Dunes Reserve and the dunes to the north and south thereof).
- A total of 329 people participated in the Speak Out consultation.
- In July 2013 a 58 page report entitled “Speak Out Consultation Community Feedback Report” was prepared by Ms Morphett (the Speak Out #1 report). It described the process and outcomes of Speak Out #1 as summarised above.
Council meeting and resolutions: decision on consultation
- On 12 August 2013 there was a general meeting of Council members. The agenda included an 11 page report by the Manager Open Space, Recreation and Property summarising the Speak Out #1 Feedback Report and recommending community consultation (the 2013 path report). Appendix A comprised the Speak Out #1 report.
- The 2013 path report recommended community consultation in the following terms:
Proposed Consultation Approach
A collaborative design approach is proposed in which community members partner with Council staff to co-create a solution to the complex Coast Park project.
A collaborative approach will:
- assist in building local community trust
- further develop relationships with local community leaders
- tap into the extensive pool of local knowledge
- co-create a solution to the complex Coast Park project
- generate community ‘ownership’ of project outcomes
- further develop Council capabilities in this innovative form of community engagement
Community feedback gathered during the Speak Out and in discussion with the key stakeholder group was supportive of the following proposed consultation approach.
Consultation Step 1 – Form a Project Reference Group
Engagement Level – Collaborate
Project Reference Group (as outlined in the body of this report) to participate in monthly workshops, facilitated by an independent consultant, over a period of approximately eight months.
Activities the group are to participate in include (but are not limited to):
- Discussion to establish terms of reference for the group
- Consider outcomes to date and ‘parked items’ of key stakeholders workshops
- Analyse community ideas and identify areas for further research (if required)
- Participate in field trips and site tours
- Develop a range of different concept design options based on community input to date. Given the complexity of this 4.8 KM of Coast Park, different solutions are likely to emerge for geographic sub-sections due to their unique characteristics.
- Refine design options and reach consensus on the shortlist of draft design options
- Work with staff to refine design options as necessary
- Assist in the planning and delivery of Coast Park Speak Out #2 (the next step of consultation)
Reporting Milestone – Council Staff to refine and cost up short listed design options and prepare a report to Council to endorse short list options for broad community consultation purposes.
Consultation Step 2 – Coast Park Speak Out #2
Engagement Level – Consult
- Hold ‘Coast Park Speak Out #2’ (similar to the June event) to gather broad community feedback on preferred design option.
- Hold online consultation project to gather online community member feedback on preferred option.
- Consultation activities to support gathering feedback on options via an assessment matrix that supports community member assessment of options against project principles criteria
- Mail out design options to 3,500 local residents and the project mailing list to gather feedback on a preferred option.
Reporting Milestone – Council Staff to report back to Council on Speak Out #2 consultation results. Council to consider community views and endorse an option to progress to detail design.
Consultation Step 3 – Close the loop
Update local community members and people on the mailing list about final layout of detailed design plan.
- The report recommended that the persons invited to join the Project Reference Group be the 20 persons involved in the stakeholder workshops, being representatives of the groups and community representatives referred to at [93] above, together with the ten local residents and individuals who registered to join the Project Reference Group at the Speak Out #1 event.
- The Council resolved that the proposed Coast Park consultation approach be endorsed in the terms recommended by Council administration.
Project Reference Group
- The Council engaged Janet Gould to act as independent facilitator of the Project Reference Group. There were originally 30 community representatives on the Project Reference Group but some members resigned after the preliminary meetings and not all members attended all meetings. The Group had preliminary planning meetings in December 2013 and January 2014.
- In March 2014 the Council engaged Aspect Studios (Tim Conybeare and Ben Birdseye) as the Project Designer to design alternative coast path layouts and work in conjunction with the Project Reference Group in developing and refining the layouts.
- The Project Reference Group met monthly between March and August 2014. Group meetings were attended by the community representatives together with the Mayor, the Semaphore Park and Grange Wards councillors, Council staff (including Ms Cornish and Mr Daniel) and Mr Conybeare and Mr Birdseye.
- The Project Reference Group developed agreed terms of reference and an agreed set of principles being an elaboration on the draft principles created at the 2013 workshops.
- For
the purpose of discussion, the residual coastal land was divided into five
segments. The southern section was divided into two
segments designated
Grange/Tennyson South (Terminus Street to Hallam Terrace) and Tennyson North
(Hallam Terrace to Bournemouth Street).
For these two segments, the Options
(ordered from west to east) were:
- Option 1 “Beachfront”: a path located a few metres west of the property boundaries;
- Option 2 “ Seaview Road”: a path located on the western edge of Seaview Road;
- Option 3 Military Road West: a path located on the western edge of Military Road;
- Option 4 Military and Lakes Edge: a path located on the eastern edge of Military Road/western edge of the West Lakes.
- For these two segments, all but two members of the Project Reference Group preferred a combination of Option 1 being a narrow (two metre maximum) natural/compacted surface (such as crushed limestone) for pedestrians and slow cyclists together with Option 2 Seaview Road being a three metre path for faster cyclists. Option 1 alone received light support and one member preferred Option 2 alone.
- The
central section was a single segment designated Tennyson Heights/Dunes
(Bournemouth Street to Shore Court). Most of the coastal
land in this section
comprised the Tennyson Dunes Reserve and was under the care, control and
management of the Minister for Sustainability,
Environment and Conservation and
not the Council. The Project Reference Group was informed that the Minister had
decided that the
coastal path would not proceed through the Tennyson Dunes
Reserve. For the central section, the Options (ordered from west to east)
were:
- Option 1 Military Road West: a path located on the western edge of Military Road;
- Option 2 Military Road East: a path located on the eastern edge of Military Road;
- Option 3 Military and Lakes Edge: a path located on the eastern edge of Military Road/western edge of the West Lakes.
- For the central section, all but four members of the Project Reference Group preferred Option 1 being Military Road West. Three members preferred a path on the perimeter of the Tennyson Dunes Reserve and one member preferred other options to be explored.
- The
northern section was divided into two segments designated Semaphore Park South
(Shore Court to Mirani Court) and Semaphore Park
North (Mirani Court to Third
Avenue). For the northern section, the Options (ordered from west to east)
were:
- Option 1 “Beachfront”: a path located a few metres west of the property boundaries;
- Option 2 Military Road West: a path located on the western edge of Military Road;
- Option 3 Military Road East: a path located on the eastern edge of Military Road.
- For Semaphore Park South, most members of the Project Reference Group preferred a combination of Option 1 being a narrow (two metre maximum) natural/compacted surface for pedestrians and slow cyclists as well as Option 2 Military Road West being a three metre path for faster cyclists.
- For Semaphore Park North, most members of the Project Reference Group preferred a combination of Option 1 being a narrow (two metre maximum) natural/compacted surface for pedestrians and slow cyclists as well as Option 2 Military Road West being a three metre path for faster cyclists. One member preferred Option 1 alone and one member preferred Option 2 alone.
- For all segments except the central section, there was a clear majority in favour of Option 1 being a narrow natural/compacted surface path within a few metres west of the property boundaries for pedestrians and slow cyclists together with Option 2 Seaview Road in the southern section and Military Road West in the northern section being a three metre path for faster cyclists.
- On 27 August 2014 the Project Reference Group discussed a draft Coast Park Planning Study prepared and presented by Mr Conybeare. Agreed changes were made to the report.
- The
Project Reference Group also discussed the next form of consultation being the
proposed broader community consultation. It was
agreed that the consultation
should proceed from 29 September to 7 November 2014 and include:
- a mail out of a project options information package and preference feedback survey to approximately 3,500 residents in the engagement catchment area;
- an online discussion forum on Your Say Charles Sturt website active over the consultation period;
- a Project Reference Group meeting on 22 October 2014 to which members of the public were invited;
- Speak Out #2 community events on 26 October and 28 October 2014 featuring a short presentation, question and answer session, an open forum, an options information display, a previous consultation result display and an option preference survey.
- At the beginning of September 2014 a 67 page report entitled “Coast Park Project Reference Group Feedback Report” (the PRG report) was prepared by Ms Morphett which summarised the process and outcomes of the Project Reference Group meetings and included as appendices the meeting notes for each meeting, the agreed terms of reference, the agreed project principles and a preferences overview.
Aspect Studio’s Planning Study
- On 3 September 2014 Aspect Studios prepared a 51 page draft report entitled “Coast Park Planning Study: Grange to Semaphore Park” (the 2014 Planning Study). Chapter 1 was entitled “Introduction” and included the following paragraphs under the heading Key Issues:
1.6. Key Issues
Along the 4.7km stretch of coastline from Terminus Street to Third Avenue the opportunity to build a continuous shared use pedestrian and cycle path along the beachfront presented design challenges.
The Key Issues identified for the beachfront include:
- The limited space due to the proximity of residential properties to the foredunes
- In some cases, privately owned land extends to the high water mark allowing no legitimate public access
- Risk of damage to the fragile coastal ecology
- Privacy and perceived safety concerns.
- Chapter 4 was entitled “Existing Conditions” and described the existing conditions in each of the five segments, including Physical Description, Access & Movement and Flora & Fauna Assessment. The Flora & Fauna Assessments including the following passages in respect of the four segments under the Council’s care and control:
Grange/Tennyson South (Terminus Street to Hallam Terrace)
The existing track adjacent to the property boundaries in the section through to Fort St area has vegetation in the immediate area that is largely degraded and in poor condition for approximately 10 metres heading in a westerly direction. Most cover in this 10m section is provided by weed species...
Shrubs and sedges are present in good quantities throughout the remaining dune area and this provides stability. The species richness is relatively good following implementation of the management plan and this encourages resilience of the dune system as a whole.
... The fore dune and swale are currently self-sustaining vegetation communities in regeneration, nutrient cycling and stability therefore securing the sustainability of these in the short to medium term.
The section from Fort Street to Hallam Street is valuable in that intact coastal vegetation communities exist in some areas right to the boundaries of the housing allotments. While some areas have expansive areas of lawn outside of property boundaries, others have allowed, and encouraged the vegetation to penetrate into the garden. Any reduction in vegetation in the two allotments providing higher than average values for this section can be supplemented by the reinstatement of coastal communities in those areas which are currently lawned or degraded by the presence of weeds.
The existing community in the dune area is self-sustaining and intact with low levels of weed infestation once away from existing cleared areas. These intact sections have large patches of Scaevola crassifolia and Olearia axillaris (Coast Daisy Bush) and these are providing high levels of stability for the swale and dune areas. Myporum insulare (Boobralla) is also present in the swale areas and this also contributes to stability and nutrient cycling in these areas. Nitraria billardierei (Nitre Bush) provides good habitat for bird species and lizards and this is present throughout the intact areas.
Tennyson North (Hallam Terrace to Bournemouth Street)
This section becomes high conservation priority because of the lack of coastal strip width which limits the ability of this area to be self sustaining without management in place. The small size of the patch limits the level of fauna species which can utilise this space and this contributes to low functioning of ecological webs such as seed dispersal, resource accumulation, pollination and stability.
The short section of dunes to Bournemouth Street is not appropriate for development. This is due to lack of width and highly mobile sands without suitable stabilising shrub and sedge species present it is our opinion that this area is unsuitable for any development as this dune is not presently a self-sustaining ecological community and any further impacts will threaten the long-term stability of this area.
Semaphore Park South (Shore Court to Mirani Court)
The existing area between the property boundaries and dune systems in this area is predominantly cropped exotic grass (lawn) consisting mainly of Pennisetum clandestinum (kikuyu) and Arctotheca calendula (Cape Weed). The strip varies in width between 7-10 metres.
Semaphore Park North (Mirani Court to Third Avenue)
The dune interface with the cropped exotic grass (lawn) areas is highly degraded within the first three meters of the boundary fence.
- Chapter 5 was entitled “Path Alignment Options”. Section 5.1 was entitled “Option 1: CPPRG Recommended Path Alignment Plan”. It contained a plan view showing a three metre wide shared use path from Terminus Street to Fort Street near the property boundaries; a combination of a 1.5-2 metre wide natural surface low-impact trail near the property boundaries/the Esplanade together with an on-street bikeway/off-road shared street/shared use path along Seaview Road from Fort Street to Bournemouth Street; and a combination of a 1.5-2 metre wide natural surface low-impact trail near the property boundaries together with an on-street bikeway/off-road shared street/shared use path along Military Road from Shore Court to Third Avenue. It also contained digital photos looking southward together with sectional diagrams each showing the location of the path between Fort Street and Bournemouth Street, between Shore Court and Mirani Court and between Mirani Court and Third Avenue. These showed the path proceeding along the edge of the grassed area.
- Section 5.2 was entitled “Other Options” and referred to alternative options not supported by the majority of Project Reference Group members. Section 5.3 was entitled “Option 2: Beachfront (with the exception of Tennyson Dunes)”. It contained a plan view showing a three metre maximum width shared use path from Terminus Street to Hallam Terrace near the property boundaries; a three metre maximum width elevated boardwalk between Hallam Terrace and Moredun Street; and a three metre maximum width shared use path from Shore Court to Third Avenue. It also contained digital photos looking southward together with sectional diagrams each showing the location of the path between Fort Street and Hallam Terrace, between Hallam Terrace and Moredun Street and between Mirani Court and Third Avenue. These showed the path proceeding along the edge of the grassed area and the elevated boardwalk proceeding immediately to the west of the grassed strip.
- Section 5.4 was entitled “Option 3: Seaview Road and Military Road only” and section 5.5 was entitled “Option 4: Military Road only”. They contained a plan view, digital photographs and sectional diagrams showing these options.
Council meeting and resolutions: Speak Out #2
- On 8 September 2014 there was a general meeting of Council members. The agenda included a 14 page report by the Manager Urban Projects (Mr Daniel) summarising the PRG report and the 2014 Planning Study and recommending that the Speak Out #2 consultation approach as outlined in the report be endorsed (the 2014 path report).
- The report contained the following passages under the heading Proposed Consultation:
Proposed Consultation
As per the Coast Park report made to Council on 12/08/2013 (item 6.130) the next stage in consultation for the project is to deliver the Speak Out #2 and gather broad community feedback on the four options for Coast Park Grange to Semaphore Park.
Proposed Coast Park Speak Out #2 Consultation Approach:
Date: 29 September to 7 November (6 weeks)
Level: Consult
Objective: Gather feedback from the broader community on preferred option for the Coast Park Grange to Semaphore Park.
Techniques:
- Mail out project options information package and preference feedback survey (Appendix C) to approximately 3500 residents as per the proposed engagement catchment area defined in the section below
- Hold online consultation project on Your Say Charles Sturt
- Advise key stakeholders and funding partners Coast Protection Board, Department of Environment Water & Natural Resources (DEWNR), Department of Planning, Transport and Infrastructure (DPTI) and Local State Members
- Hold Speak Out #2 community event at Council in CC1 and internal street on Sunday afternoon 26 October 2014 and Tuesday evening 28 October 2014, featuring: short presentation and Q & A session, open forum, Coast Park Project Reference Group storyboard, options information display, option preference survey drop-off and display of previous consultation results
- Coast Park Project Reference Group meetings during the Speak Out #2 to be held 22nd of October 2014. At this meeting members of the public can seek feedback from the CPRG on, amongst other things, the process and the Recommended Path Plan.
...
In addition to the mail out, other forms of marketing and communications will take place to ensure the broader community are aware of this consultation opportunity. These will include
- Messenger advertising in the Portside and Weekly Time
- Onsite signage targeted at current users of the area
- Social media advertising on Facebook and Twitter
- Port Road Banners
- Web advertising on the City of Charles Sturt and Your Say public website
- An invitation to those who attended SpeakOut #1
- Posters and flyers in Council facilities (libraries and community centres)
The above approach was discussed and agreed to by the Coast Park Project Reference Group at its meeting on 27 August 2014.
Caretaker period runs from 16 September to 8 November. As per legislation during this period all election nominees will be invited to consultation activities and reference group meetings.
Consultation findings will be analysed and reported back to Council in December or at the earliest opportunity. It is recommended to assist Council in its decision-making CPPRG meet to consider the outcomes of the consultation prior to this report being presented to Council.
- The
report included as Appendices A and B the PRG report and 2014 Planning Study and
as Appendix C an eight page proposed information
package for consultation
purposes entitled “Coast Park Consultation Grange to Semaphore Park”
(the Information Package). The Information Package informed readers that
the PRG Report and 2014 Planning Study could be viewed online at Your Say
Charles
Sturt. It gave the dates for the forthcoming two Speak Out events and
Project Reference Group meeting. It set out on one page each
a plan view and
sectional views of each of the four options. It identified technical constraints
in respect of each option. In respect
of the beachfront option, it identified
the following technical constraints:
- Need for protection of dunes from erosion
- Ensuring longevity of path treatment i.e. minimise erosion potential
- Impacts on high-quality vegetation must be avoided requiring the potential for elevated boardwalks in some sections
- Maintain high-value ecological patches and avoid high-quality vegetation fragmentation
- Minimise maintenance requirements
- Land tenure and resultant access restrictions north of the Esplanade, Tennyson North
- Changes in path width and surface treatments needed to suit sensitivity of site conditions
- Maintain privacy and minimise impacts on sight lines may require the path to be benched lower than existing ground level
- The last two pages comprised a community feedback survey that could be lodged in hard copy or online up to 7 November 2014.
- The Council resolved in the terms recommended by Council administration to endorse the four options contained in the 2014 Planning Study for the purpose of public consultation; endorse the Speak Out #2 consultation approach outlined in the body of Mr Daniel’s report; and endorse the draft Information Package for consultation purposes subject to minor amendments by administration based on further feedback prior to distribution.
Speak Out #2
- On 22 October 2014 75 people attended the PRG meeting. On 26 October 88 people attended the first Speak Out #2 consultation event and on 28 October 98 people attended the second Speak Out #2 consultation event. A total of 83 people filled out Green Sheets at these three meetings to provide written feedback. The themes of the verbal and written feedback were similar to those at the Speak Out #1 event.
- Between 29 September to 7 November 2014, 22 written and emailed submissions were sent to the Council. The webpage was viewed by 2,754 people. Comments were made in the online discussion forum by 63 people. The themes were similar to those at the Speak Out #1 event.
- Between 29 September to 7 November 2014, 1,100 people lodged completed survey forms. Most but not all people rated each of the four options with a number from 1 (low support) to 5 (high support). There was slightly greater support for Option 1 (the CRP recommended dual path) with an average rating of 3.19 compared to Option 2 (beachfront path) with an average rating of 3.04. Options 3 and 4 received low ratings.
- The Project Reference Group met in December 2014 and January 2015. Meeting notes were not tendered but I infer that Speak Out #2 was discussed.
- In January 2015 a 44 page Speak Out #2 Consultation Feedback Report was prepared by Council administration (the Speak Out #2 report). It gave details of the process and outcome of the Speak Out #2 consultation as summarised above.
- On 5 February 2015 the Project Reference Group met. Group members were told by Mr Daniels that it was proposed to disband the Group.
Council elections
- In November 2014 Council elections were held. Ms Evans, formerly a councillor, was elected Mayor. Nine existing councillors were re-elected and seven new councillors were elected.
New Planning Study
- In February 2015 Aspect Studios prepared a new 17 page Planning Study (the 2015 Planning Study) which differed in form and substance from the 2014 Planning Study. I infer that it was prepared on instructions from the Council administration. Rider Levitt Bucknell, quantity surveyors, were engaged by the Council to cost the options that were the subject of the new Planning Study.
- The
2015 Planning Study did not contain any narrative. It contained only plans,
sections and costings. It comprised two parts:
- The first part was entitled Option 1 and comprised ten sheets (Part 1).
- The second part was entitled Option 2 and comprised seven sheets (Part 2).
- Part
1 referred to four alternative options designated 1A, 1B, 1C and 1D. These
options differed very substantially at two segments
from Option 1 favoured by
the Project Reference Group and the subject of the Speak Out #2 public
consultation. Option 1B was costed
at $9.457 million and comprised:
- Terminus Street to Fort Street: a three metre wide concrete shared path through the dunes (a completely new concept);
- Fort Street to Hallam Terrace: a combination of a 1.5 metre wide compacted rubble path on the edge of the grassed strip together with a 2.5 metre on-street bikeway and 2.5 metre off-road shared use path along Seaview Road (similar to Option 1 the subject of the Speak Out #2 consultation);
- Hallam Terrace to Moredun Street: a combination of a 1.5 metre wide boardwalk through the dunes together with a three metre off-road shared use path along Seaview Road (a completely new concept);
- Moredun Street to Bournemouth Street: a combination of a 1.5 metre wide compacted rubble path on the edge of the grassed strip together with a three metre off-road shared use path along Seaview Road (similar to Option 1 the subject of the Speak Out #2 consultation);
- Shore Court to Third Avenue: a combination of a 1.5 metre wide compacted rubble path on the edge of the grassed strip together with a three metre off-road shared use path along Military Road (similar to Option 1 the subject of the Speak out #2 consultation).
- Option 1C comprised only the 1.5 metre wide compacted rubble path/boardwalk from Option 1B and was costed at $3.937 million. Option 1D comprised only the Seaview Road/Military Road on-street bike lane/shared use concrete path from Option 1B and was costed at $6.008 million.
- Option 1A was the same as Option 1B and was costed at the same price but involved a three metre concrete shared path on the edge of the grassed strip (per Option 2 the subject of the Speak Out #2 consultation).
- Part
2 referred to two alternative options designated 2A and 2B. Option 2A was the
same as Option 2 the subject of the Speak Out #2
public consultation and was
costed at $8.28 million. Option 2B differed radically from all of the Options
the subject of the Speak
Out #2 consultation. Option 2B was costed at $8.306
million and comprised:
- Terminus Street to Hallam Terrace: a three metre wide concrete shared path through the dunes with fences 1 metre either side of the path (a completely new concept);
- Hallam Terrace to Moredun Street: a combination of a 1.5 metre wide boardwalk through the dunes and a three metre off-road shared use path along Seaview Road (a completely new concept);
- Moredun Street to Bournemouth Street: a three metre wide path up to Hillview Avenue and then a three metre off-road shared use path along Seaview Road (similar to Option 1 the subject of the Speak out #2 consultation);
- Shore Court to Mirani Court: a three metre wide concrete shared path through the dunes with fences 1 metre either side of the path (a completely new concept);
- Mirani Court to Third Avenue: a three metre concrete path on the edge of the grassed strip together with a three metre off-road shared use path along Military Road (similar to Option 2 the subject of the Speak out #2 consultation).
Council meeting and resolutions
- On 23 February 2015 there was a general meeting of Council members. The agenda included an 11 page report by the Manager Urban Projects (Mr Daniel) summarising the Speak Out #2 Feedback Report and recommending that the Project Reference Group be disbanded and the Council write to the Premier seeking a whole of government view on their preferred path alignment and their funding commitment including long-term asset maintenance (the 2015 path report). Appendix A comprised the Speak Out #2 report and Appendix C comprised the 2015 Planning Study.
- The report referred to Option 1 as being the Project Reference Group preferred option and referred to the Rider Levitt Bucknell costings without mentioning that they referred to a path that differed in important respects from the Project Reference Group preferred option.
- The report referred to views expressed by a number of Seaview Road residents that Option 2 would generate impacts to their privacy and sense of safety and said that consideration had been given to pushing the beachfront alignment west into the dunes south of Hallam Terrace which was shown as Option 2B in the 2015 Planning Study. The report did not mention that the path had also been pushed into the dunes in Option 2B north of Hallam Street up to Moredun Street and between Shore Court and Mirani Court.
- The report said that “there may be impacts to vegetation that would need to be carefully considered and changes to natural sand movements”, “as the project progresses, it will consider potential impacts on remnant dune vegetation” and “the installation of a path dissecting these dunes will impact on both the vegetation diversity and flora migration through the dunes and also interfere with the natural sand movements”. It said that an elevated pathway should be considered. It said that “any coast path alignment that is placed within the dunes system needs to be carefully considered with the Coast Protection Board and the Department of Environment, Water and Natural Resources, other state agencies and community stakeholder groups to ensure the stability of the dune system and its ecology are not substantially compromised”.
- The report recommended that, as Coast Park was a State government initiative, it was now appropriate to seek clear direction from the government on its preferred solution given community sentiment, cost estimates and project risks.
- The Council resolved, in the terms recommended by Council administration, that the Project Reference Group be sent a letter of thanks and advised that the Group will be disbanded; and that Council write to the Premier of South Australia seeking a whole of government view on their preferred path alignment, their funding commitment including long-term asset maintenance, feedback in relation to the draft management plan,[29] clarification in relation to dedications and any other relevant consideration to ensure Coast Park as envisaged in either Option 1 or Option 2 could be constructed.
- On 10 March 2015 there was another general meeting of Council members. It was resolved that the Mayor include in her letter to the Premier a request that consideration be given by the State government to upgrading the existing pathway through the Tennyson Dunes Reserve in a way that minimised any impact upon existing flora and fauna, linking access for all coastal path users from Grange to Semaphore Park. This would have relieved the Council of its share of the cost of constructing a coastal path along Military Road between Bournemouth Avenue and Shore Court.
Correspondence with State government
- On 17 March 2015 the Mayor wrote to the Premier referring to the resolutions of the Council of 23 February and 10 March 2015.[30] In relation to the proposed coastal path, she said that the Council had provided the necessary documentation for the State government to form a clear view on its preferred pathway alignment underpinned by capital funding and long term maintenance contributions and looked forward to understanding this position before finalising its view on the future of this section of Coast Park.
- On 28 October 2015 the Minister for Planning wrote to the Mayor, saying that the Premier had asked him to respond on his behalf. In relation to the path alignment, the Minister said that “conserving the coastal environment is a key component of the Coast Park project, as is the establishment of a shared-use recreation trail to provide a safe and accessible facility for people of all abilities to experience the diverse coastline”. In relation to the Council’s suggestion that the State government upgrade the existing pathway through the Tennyson Dune Reserve, the Minister said that the State government had engaged a consultant to undertake a planning study with an initial concept to be completed by January 2016.[31]
- On 18 November 2015 Mr Daniel sent an email to Anita Allen, Manager, Strategic Assessment and Investment, Department of Planning, Transport and Infrastructure. He attached a copy of the 2015 Planning Study. He summarised Option 1 and Option 2 largely in terms of the 2014 Planning Study. He said that Option 2 had two alignments: Option 2A adjacent to the properties that would reduce their privacy and Option 2B further away from the properties and in a swale where the dunes provided sufficient depth. He said that Council was seeking direction on which of the two alignments the State government supported: Option 1 or Option 2.
- On 22 February 2016 Ms Allen sent a letter to Mr Daniel. She said that Option 2 was consistent with the objectives of Coast Park and Option 1 was not because it involved bicycles being diverted along Seaview and Military Roads. She said:
Option 2 in Council’s concept plan identifies two potential path alignments within the coastal reserve; aligning the path through the dunes swale and aligning the path on top of the dune closer to the property boundaries. Both of these proposed alignments achieve the Coast Park objectives and Council should consider the local environmental conditions and matters raised by the local community to determine the final alignment along this section of the coast.
2016 Planning Study
- In April 2016 Aspect Studios prepared a further Planning Study being an updated version of Part 2 of the 2015 Planning Study (the 2016 Planning Study). The only difference was that the sheet from Bournemouth Street to Shore Court was removed. The costings of $8.280 million for Option 2A and $8.306 million for Option 2B were not updated.
Council meeting and resolutions
- On 26 April 2016 there was a general meeting of Council members. The agenda included a 7 page report by the Manager Urban Projects (Mr Daniel) (the 2016 path report). Appendix A was the 2016 Planning Study. Appendices B to E were the correspondence with the State government referred to above.
- The report referred to the Department of Planning email dated 24 February 2016 that made it clear that there would be no government funding for Option 1. It said that, given the significant cost and the evenly split community preferences between Options 1 and 2, it was recommended that Council proceed with Option 2.
- The report said that, if the State government decided to proceed with a Tennyson Dunes Discovery Trail through the Tennyson Dunes Reserve, there would be a reduction in the cost to Council in the order of $865,000.
- In relation to the path alignment under Option 2, the report said:
As the detailed design commences staff will hold meetings with the Coast Protection Board in an endeavour to understand the extent of storm protection the dunes can afford the shared path. Despite seeking clarification it is yet unclear what might happen to the pathway in certain locations during larger storm events. It is understood that a number of residents are keen to place the pathway further west into the dunes so they might be afforded maximum privacy. This needs to be considered within the context of the dunes biodiversity and the risk of damage during storm events. Staff will be seeking to find an appropriate balance based on feedback from the Coast Protection Board during the next detailed design phase.
- The
Council passed resolutions in relation to the coastal path in the terms
recommended by Council administration (the 2016 Path Decision).
The resolutions
were passed by the elected members without any discussion or debate. The
resolutions were:
- That Council adopt Option 2 (beachfront pathway alignment) from Council Report 6.31 Appendix C of 23 February 2015 now updated to exclude the Military Road component (Appendix A).
- That
detailed design is undertaken for Option 2 beachfront pathway alignment
(Appendix A) preparation for tender and construction
commencing in 2016/17 and
that further consideration be given to the following during the preparation of
detailed designs:
- Separation distances between the path and adjoining properties to maximise privacy while at the same time managing risk of storm damage to the path;
- Landscape treatments between property boundaries and the path to include a combination of irrigated turf and indigenous coastal plants in consultation with adjoining property owners;
- Minimising environmental impacts on sensitive dune vegetation (noting that the sections of path under the ownership or care control and management of the Council is primarily grass covered with some sections of dune planting);
- Opportunities for the creation of nodes at key locations as identified in Appendix A.
Request for expressions of interest
- In mid-2016 the Council called for expressions of interest to design and construct the proposed coastal path. The Council issued draft plans showing a path alignment which said that the path would be constructed of concrete or boardwalk to be finalised at the detailed design phase. The date for expressions of interest closed on 2 August 2016, with seven responses being received. The Council shortlisted two proponents. On 8 November 2016 the Council received proposals from the two shortlisted proponents.
Vegetation assessment
- On 20 October 2016 Kelly Mader prepared a report entitled “Vegetation Assessment Coast Park – Third Avenue to Mirani Court” that addressed the vegetation between Terminus Street and Bornemouth Street and between Shore Court and Third Avenue based on a detailed assessment undertaken on 19 and 20 October (the Mader report). Ms Mader’s assessments included the following passages:
Terminus Street to Hallam Terrace
This is a relatively wide section of dune which is undisturbed and contains a high diversity of plant species considered as part of this assessment.
The dune has formed naturally and contains a succession of fore dune, primary, secondary dunes – leading to the easternmost dune and swale. The eastern portion of the dune appears to have been developed with fill material and as such, very little vegetation (other than garden escapes) exists.
This section is characterised by large Nitraria billardierei and Olearia axillaris species, interspersed by a number of species including Spinifex hirsutus, Carpobrotus rossii, Enchylaena tormentosa and Atriplex cinerea. There is little evidence of disturbance to this section of dune (by way of informal access ways or foot traffic) and as a result, a number of species are self-seeding and forming individual communities.
The dune area is relatively wide and has been subject to patches of re-vegetation. The vegetation within the dunes is both diverse and contains well established species which promote good dune formation and stability.
Diversity in fauna was also evident within this section with a number of brown snakes, lizards, birds and butterflies being sighted.
...
Should the current alignment proceed, approximately 500 – 600 plants would need to be removed. This would have a significant impact on the currently intact and healthy system.
Hallam Terrace to Bournemouth Street
There is significant variation in dune formation in this section. The dunes in the northern portion (maps 5 & 6) are narrow in width and contain only a fore dune. There is little diversity, however a number of species, in particular Myporum insulare, Olearia axillaris and Scaevola crassifolia have grown to a significant size and appear healthy.
...
The southern portion of section 3 (map 7) is much wider in formation and contains dense vegetation. However, a lot of existing vegetation is not indigenous to the area (succulents, Tamerix, creepers, daisy). There is interspersed pockets of healthy indigenous vegetation.
...
Approximately 200 plants will be lost as a result of the path alignment (map 6 & 7), however given the narrow section of dune and location of well-established vegetation, any variation of what is currently proposed would result in even greater plant loss.
Mirani Court to Shore Court
The proposed path alignment through this section avoids vegetation given the location being on the existing grassed areas to the east of the dune system.
Shore Court to Third Avenue
The proposed path alignment through this section avoids the majority of vegetation given the proposed location being on existing grassed areas on the eastern side of the dunes.
Correspondence with the State government
- On 13 June 2016 Stephen Mullighan MP, the Member for Lee, wrote to Mr Sutton referring to street corner meetings he had held with local residents who had expressed their concern over the alignment, size and construction method of the path through the Tennyson Dunes Reserve and surrounding areas. He said:
As outlined at my street corner meetings; my preferred option for the remaining sections of the Coast Park is a narrower (less than three metres), less impactful path constructed of natural material that encourages all users to enjoy the coast and environs while being suitable for people of all abilities, for example someone in a self-propelled wheelchair to navigate. I will continue to advocate this view and those of the community about a less impactful path.
- On 28 June 2016 James Guy, Team Leader Coast and River Murray Unit, Conservation and Land Management, Department of Environment, Water and Natural Resources wrote to the Council’s Coordinator Urban Design Projects in relation to Part 2 of the 2015 Planning Study. He said that a one in 100 year ARI storm event would erode approximately 40 cubic metres per linear metre of sand from the dune buffer on Adelaide’s beaches. He said that under Adelaide’s Living Beaches Strategy (ALB), the Department managed sand with a view to maintaining a sand buffer in the order of 80 cubic metres per linear metre. He said:
In relation to the proposed Coast Park at Tennyson, this means where the path is aligned such that it has a sand buffer volume of at least 80 m3/m between it and the sea, it is at very low risk of being exposed to coastal erosion hazard during significant storm events...
In contrast, if the Coast Park path is aligned such that the sand buffer is less than 80 m3/m, it will potentially be exposed to coastal erosion hazard, with the degree of risk being related to how close the path is to the dune face.
It should also be noted that even where there is a sand buffer of 80 m3/m or more to the seaward side of the proposed path alignment, it is preferable that the Coast Park path be aligned as close to the road or property boundary as is practical. The reason for this is that the ALB target sand buffer volume of 80 m3/m is measured using the property boundary as a datum, not from the proposed Coast Park path alignment. Therefore, following storm erosion events, ALB will seek to reinstate sand buffers to a volume of approximately 80 m3/m from the property boundary. Beach replenishment will not be undertaken following storm events to restore sand buffer protection to the Coast Park path if an 80 m3/m buffer remains to property boundaries.
- Mr Guy attached a table showing the level of risk for different sections of the coastal path if it were placed on the landward edge of the dunes as opposed to being placed in the dunes. In each case, the risk was categorised as “very low risk” if the path was placed on the landward edge of the dunes and “very high risk” or “high risk” if the path was placed in the dunes.
- On 29 June 2016 the Council and the Minister for Planning entered into a Deed of Conditions of Grant pursuant to which the State agreed to pay 50 per cent of the cost of stage 1 of the project up to $2 million. On 9 August 2016 by a further deed the State agreed to pay 50 per cent of the cost of the whole project up to $3.25 million.
- On
18 August 2016 Ms Bretones, the Council’s Manager Open Space, Recreation
and Property, sent an email to Matthew Lang, Open
Space Planner, Strategic
Investment, Department of Planning, Transport and Infrastructure saying that, in
light of the Department
of Environment’s assessment, the Council had
decided to realign the proposed path:
- between Terminus Street and Hallam Terrace: to the bottom of the embankment (and this was likely to be a boardwalk);
- between Hallam Terrace and Bournemouth Street: to the grassed strip;
- between Shore Court and Mirani Court: to the grassed strip.
- On 22 August 2016 Mr Lang sent an email to Ms Bretones saying that there was general support for the proposed alignment but raising four queries. On 23 August Ms Bretones sent an email to Mr Lang responding to the four queries.
- On 26 August 2016 Allan Holmes, Presiding Member of the Coast Protection Board, wrote a letter to Ms Bretones. He endorsed the advice given by Mr Guy on 28 June 2016 and added:
The Board also notes Council’s response to this advice in selecting a draft final alignment that generally minimises exposure to coastal erosion hazard.
However, by aligning the Terminus Street to Hallam Terrace section of the path further seaward than the existing gravel path at the property boundaries, Council is increasing the exposure of this section to potential coastal hazards. The Board understands that Council has selected this alignment in order to reduce the impact of the path on adjoining residents and notes that a significant storm buffer remains seaward of the proposed alignment. The Board also notes that Council is fully aware of the risk in making this design decision (as per the previous DEWNR advice).
The Board is therefore satisfied that Council has given due regard to coastal hazards during the design process and is fully aware of potential coastal erosion risks associated with the proposed alignment.
The Board reminds Council that although the Board and DEWNR actively manage Adelaide’s Beaches through the beach replenishment program of the Adelaide’s Living Beaches strategy, significant erosion can and does occur during storm events. Longer term dune recession may also occur as a result of ongoing sea level rise. The City of Charles Sturt, as the owner of the assets to be created by this project, needs to be fully aware of, and accept, the potential risks to Coast Park associated with future erosion.
- On 29 August 2016 Tony Halls, Senior Property Officer Department of Environment, Water and Natural Resources, wrote to Ms Bretones stating that from a Crown land perspective the development of the proposed path was not inconsistent with the dedicated purposes under the various dedications.
- On 9 September 2016 the Minister for Sustainability, Environment and Conservation Mr Hunter MLC and Mr Mullighan MP announced that there would be a narrow natural path constructed through the Tennyson Dunes Reserve. The path was to be narrower than other sections of the coastal path, having a more natural alignment, respecting the unique ecology and being constructed of a natural material.
- On 22 September 2016 the Minister for Planning wrote to the Mayor saying that the path alignment had been reviewed by the Chair of the Adelaide and Mount Lofty Ranges Natural Resources Management Board. He said that he was pleased to provide support for the proposed alignment to enable the Council to proceed with the detailed design and construction. He referred to the four queries raised by Mr Lang’s email of 22 August. He added:
I also understand that there are local community concerns in relation to this project. In progressing this project, I accordingly ask you to give due consideration to these concerns.
- On 7 October 2016 Mr Mullighan MP wrote to Mr Sutton referring to concerns expressed by residents about the extension of the path through what was in many parts a very ecologically sensitive area. He referred to the 9 September announcement of the sensitively designed coastal path through the Tennyson Dunes Reserve. He referred to his letter of 13 June and exhorted the Council to consider his previous suggestion. He pointed out that the $3.25 million funding provided by the State government was on the condition that the Council give due consideration to the concerns of the community and asked Mr Sutton to reconsider the issue.
- On 25 October 2016 the plaintiffs instituted this action amongst other things challenging the validity and lawfulness of the Council’s 26 April 2016 decision to adopt Option 2 from the 2016 Planning Study.
Purported rededications
- On 7 December 2016 Wayne Hutchinson, Program Manager Crown Lands, Department of Environment, Water and Natural Resources, acting as purported delegate of the Minister for Sustainability, Environment and Conservation, purported to revoke the Dedications and dedicate sections 993 and 994 for “Coast Protection and Coast Path purposes” and sections 987 and 988 for “Preservation of Natural Features and Coast Path” purposes (the Purported Rededications).
- On 16 March 2017 the plaintiffs joined the Minister for Sustainability, Environment and Conservation as a defendant to this action and sought declarations that the Purported Rededications were void. On 15 May 2017 the Minister conceded that the Purported Rededications were void and I made an order by consent quashing the decisions made by Mr Hutchinson on 7 December 2016.
Council meeting and resolutions
- On 23 January 2017 there was a general meeting of Council members. The agenda included a nine page report by the Coordinator Urban Design (Tony Clisby) (the 2017 path report). Appendices A, D, E and F were the letters from Mr Guy dated 28 June, Mr Halls dated 29 August, Mr Holmes dated 26 August and the Minister for Planning dated 28 October 2016. Appendix G was the set of plans issued when inviting expressions of interest to design and construct the path.
- Appendix
H was the final set of plans showing the proposed alignment of the path (the
January 2017 plans). The plans showed:
- between Terminus Street and Hallam Terrace: a meandering boardwalk that generally follows the low point of the Swale;
- between Hallam Terrace and Hillview Avenue: a concrete path on the edge of the grassed strip;
- along Hillview Avenue: a concrete path leading to Seaview Road;
- along Seaview Road and Bournemouth Street: yet to be determined;
- between Shore Court and Third Avenue: a concrete path on the edge of the grassed strip.
- The report referred to the various responses received from the government agencies and said:
The final alignment plans, refer Appendix H are provided for endorsement noting that the section of path that will run along Seaview Road Tennyson (Bournemouth to Hillview) is not yet finalised and pending further discussion with adjoining residents. There is no option for this short section but to travel along Seaview Road as the residential properties extend to the high water mark. The design meets the requirements of the Council resolution of the 26 April and addresses the comments raised by the State Government departments.
- The report said that staff had had regard to a number of strategic documents relating to the coast in finalising the path alignment, including the Council’s Environmental Sustainability Policy, the Living Green Environmental Plan, the Management Plan and Vegetation Management Plans.
- The report noted that the documents recognise a variety of objectives and principles that seek to achieve a range of outcomes, of which protection of the natural coastal environment is an important consideration. It said that the construction of a coastal pathway was not necessarily inconsistent with that objective. The report said:
On balance, it is considered that the project will achieve the overarching objectives espoused in the above policy documents, and that a sound balance has been struck between competing considerations where tension exists. Tension may be said to exist between maintaining privacy and amenity of neighbouring properties – which generally requires the pathway to be situated as far west as possible away from property boundaries – and protecting the pathway from damage in storm events – which requires the pathway to be situated on the eastern side of the dunes so as to maintain an adequate buffer of sand, as per the advice received from DEWNR. It is considered that the final path alignment achieves the right balance between those objectives, as evidenced by the support from DEWNR and the Coast Protection Board.
- In relation to a suggestion that the path alignment would have adverse ecological consequences, the report said:
In terms of ecological consequences, further analysis of native vegetation has been undertaken via site surveys and mapping. When important native plants are encountered, the contractor will be required to re-align the relevant section of pathway, with any such changes being dealt with via delegation as per recommendation 7. The contractor will also be required to take preventative measures to avoid damage during construction, and to submit a detailed environmental management plan to the Project Superintendent for approval prior to the commencement of construction. Stage 2 of the project... also includes a substantial amount of dune rehabilitation work, including weed removal, and substantial revegetation using native species of local provenance.
- The report recommended that the Council make eight resolutions.
- The
Council made resolutions in terms of the resolutions recommended by Council
administration in the report. The resolutions included:
- That the Final Alignment plans (Appendix H) are endorsed to be used for the preparation of the detailed designs and construction.
- That Council delegate any further decisions regarding variations to the path alignment, design and material (including the section of path along Seaview Road, Tennyson (Bournemouth to Hillview)) as may be required to the Chief Executive Officer and General Manager Asset Management Services including the final approval for the design of the landscape interface plans and nodes.
Development Regulations amendment
- On 27 January 2017 the Development Regulations 2008 (SA) were amended to exclude from the definition of “development” for which development authorisation is required under the Development Act 1993 (SA) a recreation path defined to mean a path (including a boardwalk) open to the public for walking, cycling or similar recreational activities without payment of a charge under the care, control and management of the Crown, a council or other public authority.[32]
Path alignment amendments
- On 15 March 2017 Mr Hosking sent a memorandum to Mr Sutton and Ms Cornish recommending that the 180 metres of the proposed concrete path close to the property boundaries between Northcote Lane and Moredun Street be replaced by a boardwalk four metres further west within the Swale at an additional cost of $500,000. Ms Cornish and Mr Sutton approved the amendment.
- On 8 May 2017 Mr Hosking sent a memorandum to Mr Sutton and Ms Cornish recommending the realignment of the concrete path at Third Avenue Semaphore Park from approximately three metres to approximately ten metres from the property boundary. Ms Cornish and Mr Sutton approved the realignment.
The Management Plan
Council meeting and resolutions
- On 23 February 2015 there was a general meeting of Council members. The agenda included a 5 page report by the Coordinator Projects Property Services (the 2015 management plan report). Appendix A to the report was a draft Community Land Management Plan expressed to apply to the whole of the Council coastal land.
- The report said that community land management plans had been adopted by the Council for five specific areas of Council coastal land[33] but a management plan had not been adopted for the balance of the Council coastal land. The report recommended that the Council commence the process to adopt a management plan in relation to the coastal land and amend the existing management plans.
- The report recommended that the Council consult with the State government concerning those coastal land parcels in the ownership of the Crown with the Council as the custodian and then undertake public consultation in relation to the draft management plan.
- The Council made resolutions in the terms recommended by Council administration in the report.
Correspondence with the State government
- On 17 March 2015 the Mayor wrote to the Premier referring to the resolution of the Council on 23 February 2015.[34] She said that the Council sought feedback from the Crown in relation to the draft Community Land Management Plan. She said that the Council sought assurances from the Crown that the Crown land dedications were appropriate for a shared use pathway as envisaged or amendment of the dedications so that all current options could be constructed if so determined.
- On 28 October 2015 the Minister for Planning wrote to the Mayor.[35] The Minister said that the Department of Environment, Water and Natural Resources had advised that the dedication of the area as a conservation reserve under the Crown Lands Act would not hinder the development of an appropriately designed path that allowed access and minimised environmental impacts. The draft Community Land Management Plan was considered to be consistent with the intent of the Crown Lands Act dedications and the objectives of the Coast Park project.
Communications concerning form of consultation
- On 12 January 2016 there was a meeting attended by Ms Cornish, Mr Daniel, Mr Clisby and Mr Sutton at which there was a preliminary discussion concerning the form of public consultation in relation to the proposed Community Land Management Plan.
- On
13 January 2016 Ms Morphett sent a draft strengths, weaknesses, opportunities
and threats (SWOT) analysis to Mr Sutton, Ms Cornish,
Ms Bretones, Mr
Daniel, Ms Gambiriza and Mr Clisby (the first options paper). It showed
four options summarised below.
- Option
1 – Meeting Statutory Requirements Consultation level: Consult.
- displaying the draft Management Plan in the Civic Centre and on the website with an open feedback form;
- adverts in The Messenger public notices;
- inviting community representations at the Council meeting.
- Option
2 – Exceeding Statutory Requirements Consultation level: Consult.
- steps per Option 1;
- online consultation project on Your Say Charles Sturt;
- article in the Council’s fortnightly Messenger column;
- social media;
- two Port Road banners.
- Option
3 – Involved Community Engagement Consultation level:
Consult/Involve.
- steps per Option 2;
- invite project stakeholder feedback;
- 20 on-site coreflute promotional signs.
- Option 4 - Involved Community Engagement, 2 stage process Consultation level: Involve.
- Option
1 – Meeting Statutory Requirements Consultation level: Consult.
Stage 1
- project stakeholder workshop to refine and finalise the draft Community Land Management Plan;
Stage 2
- steps per Option 3;
- invite project stakeholders and broad community members to provide online feedback;
- Advertiser and/or Adelaide Now advert.
Although Ms Morphett showed the level of engagement for each option, this was reverse engineered from the options rather than first determining the appropriate level of engagment and then determining options.
- Between 13 and 19 January 2016 Mr Daniel, Ms Morphett, Ms Gambiriza and Mr Clisby amended the first options paper by adding strengths, weaknesses, opportunities and threats (the second options paper).
- Subsequently an amended version of the second options paper was prepared described as “Community Consultation Options for EM feedback” (the third options paper). It showed only Option 2, renamed Option A, and Option 3, renamed Option B. A project fact sheet was to be prepared as well as the draft Community Land Management Plan for display. Physical displays were to be made at libraries and community centres as well as the Civic Centre. The opportunities and threats were removed and the strengths and weaknesses were recast. The introduction was recast.
- On 25 January 2016 there was a general meeting of the Council. At a workshop before the meeting, Ms Cornish presented to the elected members a slideshow in relation to the consultation approach in respect of the draft Community Land Management Plan. The slideshow stated that a number of consultation options had been developed and discussed at an executive level with a high level SWOT analysis done of each option. It said that two approaches were proposed for Council member consideration and feedback. The slides for Option A and Option B were virtually identical to the words relating to Option A and Option B in the third options paper, except that the strengths and weaknesses were removed.
- Ms Cornish gave evidence that she recalled attending an executive meeting at which it was decided to proceed with only Options 2 and 3 and said that this meeting took place on 15 January, relying on the fact that action lists from subsequent executive meetings did not refer to the draft Community Land Management Plan. Ms Cornish said that the third options paper did not go anywhere.
- Notwithstanding Ms Cornish’s evidence, I find that there was a meeting on 19 January at which the second options paper was discussed and it was decided to proceed with only Options 2 and 3; that thereafter the third options paper was produced; and that thereafter there was a meeting at which it was decided to remove the strengths and weaknesses from the third options paper and otherwise use the narrative in it for the slideshow referred to below. I make these findings based on the date of the second options paper being 19 January, the existence of the third options paper and the near identity between the third options paper and the slideshow on 25 January.
- At the workshop immediately before the Council meeting on 25 January 2016, there was discussion concerning the merits of option A and option B. There was not unanimity among the elected members but most said that they preferred option B over option A because it involved signage being placed at strategic locations along the coast which would be more likely to capture the attention of residents and visitors to this part of the coastline compared to only print and electronic advertising. Most said that they did not think that an online consultation project or invitation to project stakeholders to provide feedback would be necessary or appropriate. No decision was made at the workshop as to the form of consultation.
- Immediately after the workshop, Mr Sutton and Ms Cornish had a discussion about proceeding with the level of consultation as discussed at the workshop. No direction was given by Mr Sutton to Ms Cornish as to the form of the consultation. This was subsequently decided by Ms Cornish.
- Throughout the discussions about public consultation in respect of the draft Community Land Management Plan, no one on behalf of the Council determined the level of engagement and no one determined whether the level of engagement should be Consult or below or Engage or above.
-
Between 24 February and 25 March 2016 the Council undertook the following public
consultation in respect of the draft Community Land
Management Plan:
- A copy of the draft Community Land Management Plan was displayed at the Council’s office.
- A page was created on the Council’s website that quoted the objective from the draft Community Land Management Plan so that written submissions on the proposal could be made by 25 March 2015 [sic] and contained links to:
(a) a two-page document entitled Background; the draft Community Land Management Plan; the five existing community land management plans to be replaced or removed; and plans showing the location of the Council coastal land; and
(b) one page showing the location of the Council coastal land.
- A public notice was placed in the Weekly Times Messenger and Portside Messenger on 24 February, 9 March and 23 March 2016.
- A brief article was placed in the Council’s regular column in the Weekly Times Messenger and Portside Messenger on 24 February 2016.
- Two large banners were displayed on Port Road.
- Eight on-site coreflute promotional signs were displayed along the Council coastal land.
- Information was posted on the Council’s Twitter account.
- The step contained in Option A and Option B discussed at the Council workshop of the inclusion of an open feedback form on the website with the draft Community Land Management Plan was not taken.
Council meeting and resolutions
- On 26 April 2016 there was a general meeting of Council members. The agenda included an 11 page report by the Project Coordinator Property (the 2016 management plan report). Appendix A was the draft Management Plan expressed to apply to the whole of the Council coastal land. Appendix B was a plan showing the location of all Council coastal land.
- The report identified relevant Council policies as the Consultation Policy. The report said that the proposals in the draft Management Plan to deliver the State government’s Coast Park initiatives and provide as far as possible a continuous shared use two-way pathway along the coastal foreshore had generated the largest amount of community feedback, with concerns raised including environmental, impact on adjoining residents and climate change/maintenance implications. The report said that, once adopted, Council must manage community land in accordance with any management plan for the relevant land.
- The report referred to dedications in respect of the land set out in the table annexed to the draft Management Plan and quoted from the Minister for Planning’s letter dated 28 October 2015.
- The report attached as Appendix C the submissions received in response to the public consultation. The report summarised issues raised in the submissions under five headings, one of which was environmental concerns, and commented on the issues raised in relation to environmental concerns. The response included the following passages:
Any structure within the community land subject to this management plan will be designed and constructed in a manner that takes into account the sensitivities of the land, users and the expectations of local and the broader community.
Council staff (in consultation with the Coast Protection Board and the Department of Planning Transport and Infrastructure) are of the view that the environmental objectives set out in the Management Plan are relevant and achievable and should be retained.
...
The Plan is predicated on the proposition that such a pathway is physically able to be provided and in a manner that supports the State governments programs for coastal management and its Coast Park initiatives.
The actual location and design details of such a path will be collaboratively developed through the expertise available to the City of Charles Sturt, the Coast Protection Board and the Department of Planning, Transport and Infrastructure and feedback from previous public consultation and discussion with individual property owners.
The Management Plan deals with the broader questions of whether it is desirable and supported rather than the preferred route and how it can be achieved.
- The report attached as Appendix D an advice received from Norman Waterhouse Lawyers in relation to the draft Management Plan.
- At the Council meeting, the Council heard and received deputations relating to the draft Management Plan from eight persons. There was no discussion or debate between the elected members of Council after or about the deputations.
- The
Council passed the resolutions in relation to the draft Management Plan in the
terms recommended by Council administration (the Management Plan
Decision). The resolutions were passed by the elected members without any
discussion or debate. The resolutions were:
- That Council adopt the proposed Management Plans for Community Land-Coastal Reserve (refer Appendix A) for those parcels of land set out in the Schedule, with the exception of land parcels identified as sections ‘B’ and ‘D’ (Point Malcolm Reserve, Tennyson) section ‘G’ (Tennyson Heights Reserve, Tennyson) and section ‘K’ (Moredun Reserve, Tennyson), in accordance with the provisions of the Local Government Act 1999.
- That Council amend the existing Management Plans for Point Malcolm Reserve, Tennyson Heights Reserve and Moredun Reserve, by adopting the proposed Management Plans for Community Land-Coastal Reserve (refer Appendix A), for those reserves, as identified as land parcels ‘B’, ‘D’, ‘G’ and ‘K’ in the Schedule, in accordance with the provisions of the Local Government Act 1999.
The Management Plan
To provide a hierarchy of open space strategically located throughout the city to meet the recreational needs of the community, to address specific environmental or urban design objectives and to provide protection of the land (as relevant)
- The Management Plan identified the objectives for the management of the land as:
To protect the coastal dune system and coastal vegetation and to provide convenient and controlled public access to the beach and environs
- The
Management Plan identified 14 policies and proposals for the management of the
land the first five of which were:
- To support State Government programs for coastal management as they affect the City.
- To deliver the State Government’s Coast Park initiatives.
- To support measures to protect, stabilise and refurbish the coastal dune system.
- To provide, as far as possible, a continuous shared-use two-way pathway or trail for walkers, cyclists and other suitable users, along the coastal foreshore.
- To provide public access across the dunes in various forms in appropriate locations.
- The
Management Plan identified relevant policies as:
- Vegetation Management Plans
- Coastal Management Plan
- Open Space Strategy
- Development Plan – Charles Sturt Council
- Horses on the Foreshore
- Use of Public Reserves for Commercial Fitness Activities
- The Management Plan identified performance targets and measures as:
Performance targets
- To provide a safe and attractive facility developed to a level appropriate to its location and purpose.
Performance measures
- Regular inspection and maintenance of facility.
- It
is common ground that there are two objectives specified by the Plan,
namely:
- to protect the coastal dune system and coastal vegetation (the environmental objective);
- to provide convenient and controlled public access to the beach and environs (the access objective).
- The dispute is about the meaning of the access objective and the relationship between the environmental objective and the access objective.
B. THE TRIAL
Evidence
Plaintiffs’ evidence
- The plaintiffs’ case was principally a documentary one. The plaintiffs tendered ten lever arch folders of documents in a tender book together with four individual documents.
- Two affidavits by each of Professor Howie and Dr Packer were received as their evidence in chief together with the exhibits to their affidavits. They were not cross-examined and their evidence was not challenged.
- James Butterworth is a landscape architect and urban planner. On 17 May 2017 he took 72 photographs of the proposed location of the coastal path through the southern and northern sections, superimposing the location of the proposed path on the photographs. He marked up a set of Council plans showing the proposed location of the coastal path through the southern and northern sections to show the viewpoint locations at which the photographs were taken. He was also provided by the plaintiffs’ solicitors with copies of certificates of title/Crown Records and Government Gazette dedications notices in respect of the southern and northern sections. Two affidavits by Mr Butterworth were received as his evidence in chief together with the exhibits to his affidavits. He was not cross-examined and his evidence was not challenged.
- James Jordan is a solicitor employed by the plaintiffs’ solicitors. He obtained and collated various Council documents, certificates of title, Crown Records, Government Gazettes, other publicly available documents and correspondence between the solicitors for the parties and provided certain information in relation to them. Most of these documents were included in the tender book. One affidavit by Mr Jordan was received as his evidence in chief together with the exhibits to his affidavit. He was not cross-examined and his evidence was not challenged.
Expert evidence
- The plaintiffs called Dr Vic Semeniuk to give expert evidence. Reports by Dr Semeniuk dated 5 April and 22 May 2017 were received, together with his curriculum vitae, a list of species referred to by him as being species in the Swale and a bundle of aerial photographs and calculations showing his assessment of the boundaries of the Swale and of the coastal path in the Terminus/Hallam Street segment.
- The defendant called Dr Jeff Yugovic to give expert evidence. A report by Dr Yugovic dated 5 May 2017 was received.
- The defendant called Douglas Fotheringham to give factual and expert evidence. A report by Mr Fotheringham dated 4 May 2017 was received.
- Dr Semeniuk, Dr Yugovic and Mr Fotheringham prepared a joint report dated 27 May 2017 addressing 11 topics and identifying the extent to which they agreed or disagreed in relation to each topic. They gave concurrent evidence. At the end of their evidence, agreement had been reached on the great majority of matters about which they gave evidence.
- Given the nature of the action and of the plaintiffs’ contentions, there is a limit to the relevance of the expert evidence given by Dr Semeniuk, Dr Yugovic and Mr Fotheringham. It is not the role of the Court to make a value judgment about the environmental value of the dune system, and in particular the Swale, or the desirability of constructing a path through the dunes to the extent that it would have adverse environmental consequences.
- The plaintiffs adduced the expert evidence for limited purposes, recognising that the action does not involve a merit review of the Council’s decisions. First the expert evidence provided a factual background against which to consider the impugned actions of the Council. The expert evidence also enabled me better to understand the documentary and other evidence that was tendered.
- Secondly the expert evidence identified information and advice that hypothetically might have been provided to the Council if the Council had sought information and advice on the topics the subject of the expert evidence.
- Thirdly the expert evidence addressed objective matters in the event that it should prove necessary for the Court to determine any matters on an objective basis. For example, the plaintiffs contend that the question whether construction of the path is in furtherance of or inconsistent with the Dedications is to be determined objectively by the Court and the answer to that question is informed by expert opinion evidence.
- As it transpires, matters of factual background are generally proved by documents and/or are common ground. Information and advice that might have been provided to the Council is generally evident from reports such as the Vegetation Management Reports and other Council reports and Coast Protection Board reports and correspondence that were tendered. There is limited call for me to determine matters such as consistency with the Dedications for reasons which will appear.
- The residual differences between the opinions of the expert witnesses by the end of the concurrent evidence were small and in any event do not impact on my decision on the various issues. However, for the sake of completeness I briefly address areas where it might be perceived that there were relevant and substantial differences. I also address one area where there was not ultimately disagreement but which is relevant to the Dedications issues.
Physical features and geoheritage significance
- Dr Semeniuk and Mr Fotheringham gave consistent evidence concerning the history and physical characteristics of the sand dunes along the Adelaide Coast and in particular in the area between Terminus Street Grange and Third Avenue Semaphore Park (the Grange to Semaphore Park dune system).
- Dr Semeniuk referred to a concept that has been developed known as “geoheritage significance” and to assessments that are officially made as to whether a landform such as a sand dune system has local, regional/State, national or international significance. Dr Semeniuk expressed the opinion in his report that the Grange to Semaphore Park dune system has State geoheritage significance. Mr Fotheringham expressed the opinion in his report that the system has local (ie Adelaide) significance but not State significance on the basis that it is not unique in South Australia and the Normanville coast for example has a comparable dune system. However, during the concurrent evidence Mr Fotheringham accepted that the combination of the barrier and seaward dunes with the extensive freshwater lagoons behind the barrier is not matched by the Normanville coast dune system or elsewhere in South Australia. I find that the Grange to Semaphore Park dune system has State geoheritage significance.
- Dr Semeniuk gave evidence that the Swale is between 500 and 1,000 years old. Mr Fotheringham gave evidence that the storms of the 1960s eroded the coast to a large extent and the Swale could only be approximately 40 years old. Mr Fotheringham referred to beach profiles maintained by the Coast Protection Board. The Council does not dispute that the eastern side of the Swale is 500 to 1,000 years old but contends that the western side can only be approximately 40 years old in accordance with Mr Fotheringham’s evidence and the beach profiles.
- The beach profiles reproduced in Mr Fotheringham’s report extend back to 1979 and 1984 for some areas and 1994 for other areas. Dr Semeniuk and Mr Fotheringham’s evidence can be reconciled on the following basis and I find as follows. Taking a short term view, at least in the Southern section and probably also in the Northern section, while the eastern side of the Swale is centuries old, the western side of the Swale is only decades old. Taking a long term view, the Swale as a whole has existed for centuries but there have been periodic changes over the centuries in which there has been erosion and deposition of sand, change of profile and change of vegetation. While the plants growing in the Swale are only decades old, they are the successors of plants growing generally in the Swale over centuries.
Vegetation and vegetational significance
- Dr Semeniuk in his report and evidence described the species of indigenous plants present in the Grange to Semaphore Park dune system and in particular in the Swale. This evidence was consistent with the Southern and Northern Vegetation Management Plans and the Mader report. It was not contradicted by Dr Yugovic or Mr Fotheringham and was consistent with their evidence. I accept Dr Semeniuk’s evidence and find that there are at least 17 species of indigenous plants in the Swale.
- Dr Yugovic expressed the opinion that approximately half of the plants in the Swale are exotic or in other words weeds. Dr Yugovic made this as a holistic assessment rather than undertaking a detailed assessment by counting individual plants within a defined area. Dr Semeniuk said that it was not possible to express an opinion about the proportion of exotic to total plants without making a detailed assessment. Dr Yugovic accepted during concurrent evidence that most of the weeds/exotic plants are grasses. It follows that more than half of the shrubs/bushes/ trees are indigenous.
- Dr Semeniuk and Dr Yugovic expressed conflicting opinions about the qualitative value of the indigenous plants in the Swale: Dr Semeniuk expressing the opinion that they have a high value and Dr Yugovic expressing the opinion that they have a low value. Mr Fotheringham expressed what I regarded as a balanced view that the vegetation “has considerable diversity” and “despite impacts by alien species and physical disturbances there is a good representation of native coastal plants”. Mr Fotheringham considered that overall there were more indigenous plants than exotic plants.
- Dr Semeniuk and Dr Yugovic both gave evidence that over time the proportion of indigenous plants can be increased and the proportion of exotic plants reduced by various measures including allowing or encouraging natural propagation of existing indigenous plants, planting additional indigenous plants and removing exotic plants. There was some debate about the desirability of more natural as opposed to less natural measures but there was agreement that improvement can be achieved as a result of human behaviour, just as deterioration can be caused by human behaviour.
- Dr Yugovic expressed the opinion that the vegetation has a low value due to the alterations made by humans since 1836 and the prevalence of exotic species. I do not accept that opinion in part due to the opinions expressed by Dr Semeniuk and Mr Fotheringham and in part because it views only the present when the future can be improved. Conversely, Dr Semeniuk expressed the opinion that the vegetation has a high value because it contains indigenous species in a natural environment. I do not accept that opinion in its extremity due to the alterations that have been made by humans since 1836.
- There was debate between the experts as to whether the vegetation is of “State significance”. The difficulty about that debate is that the experts did not identify objective criteria by which it can be determined whether vegetation is of “State significance”. On the one hand, Dr Yugovic expressed the opinion that the vegetation does not have State significance due to lack of listed threatened species or communities. On the other hand, Dr Semeniuk expressed the opinion that it does have State significance due to the peak habitat at a micro level and the number of indigenous species present. In the absence of objective criteria, it is not possible to determine whether the vegetation has “State vegetation significance” but in any event, like the other residual matters on which there was disagreement, whether it has State significance does not affect the issues in this action.
Effect of path on vegetation in the Swale
- Dr Semeniuk expressed the opinion that construction of a boardwalk in the Swale would have short-term and long-term effects. He expressed the opinion that, if construction involved the temporary creation of a fenced 6 metre construction corridor, the vegetation within that corridor would be substantially damaged during construction, it would take several years to reinstate and in any event the habitat and vegetation would be different due to the disturbance. Dr Yugovic accepted that existing vegetation within the construction corridor would be largely destroyed but expressed the opinion that replacement indigenous vegetation could be planted. During cross-examination, Dr Yugovic was taken to papers he has written in which he expressed a strong preference for natural revegetation over human planting and accepted that natural revegetation would take many years but pointed out that human planting could establish vegetation more quickly.
- There is a lack of clarity in the Council’s resolutions as to the material of which the boardwalk would be constructed. There is nothing in the Council administration reports to the Council members that suggests that the boardwalk would not be constructed of timber in the traditional form of a boardwalk. Ms Cornish did not give any evidence on the topic of construction materials. However, Dr Yugovic gave evidence that he had been informed that the boardwalk would have a floor comprising reinforced plastic mesh. The opinions expressed by the experts were expressed on this premise.
- Dr Semeniuk expressed the opinion that the boardwalk would not only effectively result in the permanent loss of plants within the three metre width of the boardwalk but the effects would extend one metre either side. Dr Yugovic took issue with there being an appreciable permanent effect beyond the three metre width of the boardwalk. Dr Yugovic accepted that there would be a permanent loss of vegetation within the three metre width of the boardwalk. In this respect, in the course of his evidence Dr Yugovic made statements that considered in isolation might be construed as meaning that indigenous vegetation might be reinstated underneath the boardwalk where it were elevated above the ground. However, considering his evidence as a whole, Dr Yugovic accepted that there would be a permanent loss of vegetation within the three metre width of the boardwalk. In any event I accept Dr Semeniuk’s evidence that that would be so.
- I find that construction of the boardwalk pursuant to the 2017 Path Decision would result in the destruction of vegetation within the 6 metre construction corridor, that native vegetation could be reinstated by planting or natural revegetation, the latter would take many years and in either case the vegetation would differ from the current native vegetation.
- I find that construction of the boardwalk pursuant to the 2017 Path Decision would result in the permanent loss of vegetation within the three metres occupied by the boardwalk and an additional half metre being a total loss of 3.5 metres between Terminus Street and Hallam Terrace.
Vulnerability of path to breakup in storms
- There was agreement between the experts that, if a wooden boardwalk were located on the seaward side of the Coast Protection Board’s 80 cubic metre buffer zone (the buffer zone), it would be at risk of breaking up in storms unless the sand on the beach were replenished.
- There was also agreement that, if a concrete path were located on the seaward side of the buffer zone, there would be an erosive effect during storms due to interaction with waves. Dr Yugovic and Mr Fotheringham pointed out that debris could be removed after the storm and in this sense the effect would only be manifested during the storm. Dr Semeniuk accepted that the effect would only be manifested during the storm, but expressed the opinion that chunks of concrete slab would cause damage to the dune system during the storm. Dr Yugovic and Mr Fotheringham did not express a contrary opinion. I accept Dr Semeniuk’s evidence in this respect.
- On 28 June 2016 the Department of Environment, Water and Natural Resources wrote to the Council in relation to the proposed location of the path. Extracts from this letter are reproduced at [167] above. The Department said that if the path were placed in the dunes there was a “very high risk” or “high risk” of the path being damaged by storms due to lack of protection by the buffer zone.
- On the basis of that letter and the evidence given by Dr Semeniuk which I accept, I find that if a concrete path were located in the dunes as opposed to in the vicinity of the grassed strip, there would be a very substantial risk of the path being broken up by storms and in turn causing damage to the dunes. This finding is relevant to the issues relating to Dedication.
Defendant’s evidence
- Four affidavits by Ms Cornish were received as her evidence in chief together with the exhibits to her affidavits. She was cross-examined at some length and re-examined.
- Mr Hosking calculated the total area of the coastal land in the northern and southern sections and the area of the planned coastal path passing through that coastal land. One affidavit by Mr Hosking explaining his calculations was received as his evidence in chief. He was not cross-examined and his evidence was not challenged.
- The Council also tendered four individual documents.
- Most of Ms Cornish’s evidence related to matters proved by contemporaneous documents or matters of background that are uncontentious. There were some aspects of her evidence that initially might have been regarded as contentious but in respect of which by the end of her evidence they were not contentious. I address at this point two aspects of Ms Cornish’s evidence, each of which relates to public consultation in relation to the draft community land management plan.
Form of consultation about management plan
- The first aspect relates to Ms Cornish’s evidence about communications within the Council about the form of consultation to be undertaken. In Ms Cornish’s fourth affidavit, she said “I also recall having a brief discussion with Mr Sutton immediately after the workshop with Council members, in the course of which Mr Sutton instructed me to proceed with the level of consultation as discussed at the workshop.” However, during cross-examination, Ms Cornish accepted that, while there was a discussion about the topic, Mr Sutton did not give her an instruction and ultimately it was Ms Cornish who made the decision about the consultation that was undertaken. I have made findings at [205] above that Mr Sutton did not make the decision based on Ms Cornish’s acceptance in cross-examination that Mr Sutton did not give her an instruction.
- Even if Ms Cornish had not made the concession during cross-examination, I would have found that Mr Sutton did not make the decision about the consultation to be taken. This is based on my assessment of the reliability of Ms Cornish’s memory based on her evidence during cross-examination, the fact that she was relying entirely on her memory as to her discussion with Mr Sutton, and the fact that her memory is subject to unconscious influence by her interest in relation to the outcome of this action. It is also based on Ms Cornish’s subsequent actions. I find that Ms Cornish decided on the form of consultation on a progressive basis. This is confirmed by the email sent by Ms Cornish on 27 January 2016 to Mr Daniel and other subordinate staff in which she referred merely to the “general sense that we got from the discussion” at the workshop and made it clear that a decision would be made in the future whether to proceed with the coreflute signs in case they might be confused with signs being used for the Tennyson Dunes Discovery Trail. It is also confirmed by the fact that Ms Cornish subsequently determined the consultation dates and that an open feedback form was not included on the website with the draft Community Land Management Plan.
Timing of consultation about management plan
- The second aspect relates to Ms Cornish’s evidence about the timing of the consultation to be undertaken. It was put to Ms Cornish in cross-examination that in late November 2015 it was her view that, rather than going ahead with the management plan consultation, it would be better to defer it until a decision could be made about the path alignment to avoid creating a political issue that would span four to five months and involve lobbying by community groups over an extended period. Ms Cornish did not initially accept this proposition which was put to her several times. However, ultimately she accepted that her purpose at the time, as evidenced by her two emails sent on 27 November 2015, was to avoid community groups having a longer period over which to marshal the troops or to lobby if the Council’s decisions on the management plan and the path alignment were split in time. I have made findings at [565] below that Ms Cornish had that purpose based on her acceptance in cross-examination that she did so.
- Even if Ms Cornish had not made the concession during cross-examination, I would have found that she had this purpose on 27 November 2015. This is based on similar considerations to those addressed above together with my own assessment of the meaning of her two emails of 27 November 2015 extracted at [564] below.
Issues
- It is common ground that the 2017 Path Decision did not supersede the 2016 Path Decision but was made pursuant to it. The Council accepts that, if the 2016 Path Decision was invalid or unlawful, it does not rely on the 2017 Path Decision as authorising the construction of the proposed coastal path. Subject to minor exceptions, the parties do not differentiate between the issues arising in relation to the 2016 Path Decision and the 2017 Path Decision.
- Several of the contentions by the parties raise an issue of construction of the Management Plan, namely whether construction of a coastal path is an objective or is consistent with the objectives of the Management Plan. It is desirable to decide that issue of construction for the purpose of deciding multiple issues raised in relation to the validity or lawfulness of the Consultation Policy and the Path Decisions. I therefore first address the validity or unlawfulness of the Path Decisions by reference to the Management Plan on the assumption that it is valid.
Disputed existence of additional issues
Mandatory relevant consideration: geoheritage significance
- After the close of evidence, the plaintiffs sought permission to amend their Statement of Grounds by inserting a sub-ground to the contention that the Council failed to have regard to mandatory relevant considerations by adding the italicised words in the following plea:
The Council in making the Option 2 decision failed to have regard to, evaluate or weigh environmental conditions including the geoheritage significance of the Tennyson Dunes and Semaphore-Grange coast.
- The Council opposed permission to amend on the grounds that it is not reasonably arguable that the geoheritage significance of the Council coastal land was a mandatory relevant consideration in making the Path Decisions and the application was made too late and if pleaded earlier the Council might have adduced additional evidence in relation to geoheritage significance.
- I indicated during closing addresses that I would refuse permission to amend and give reasons in my final reasons for judgment. The question of geoheritage significance was raised by Dr Semeniuk in his report, Mr Fotheringham responded in his report in relation to it and it was addressed during the concurrent evidence by the expert witnesses. However, at that point it had very marginal significance to the issues in the case. I accept the submission by the Council that, if the matter had been earlier pleaded, it is likely that it would have conducted its case differently and would have adduced additional expert evidence. In addition, as considered above, the term “geoheritage significance” is a term of art. Regardless of the question whether the Council was obliged to have regard to environmental considerations (addressed below), it was not obliged to have regard to “geoheritage significance”.
Inconsistency with Dedications: amenability to review
- After the close of evidence, the Council included in its written closing address a contention that alleged inconsistency between the acts of a custodian of Crown land and the dedicated purpose of that land is not amenable to review (the amenability contention).[36]
- The plaintiffs submitted that the amenability contention is not pleaded and, absent the Council applying for and being granted permission to amend to plead it in its Response to the Statement of Grounds, it is not open to the Council to advance it at trial. The plaintiffs foreshadowed that, if an application for permission to amend were made, it would be opposed.
- The Council accepted that the amenability contention is required to be pleaded and submitted that it falls within the scope of its pleading at paragraphs 8.3 and 12.2 of its Response. The Council elected not to apply for permission to amend its Response and accepted that its ability to advance the amenability contention will stand or fall with my ruling whether it is within the ambit of paragraphs 8.3 and 12.2.
- Paragraphs 8.3 and 12.2 are in substantively identical terms except that the first refers to the 2016 Path Decision and the second refers to the 2017 Path Decision. In combination, leaving out their introductory words, they read:
Inconsistency between construction of the path and the relevant dedications does not vitiate the validity of the [Path Decisions] or the lawfulness of construction of the path.
- These paragraphs do not raise the amenability of the Path Decisions to review on the ground of inconsistency with the Dedications. They raise instead the contention that as a matter of substantive law under the Crown Land Act no constraint is imposed on a custodian not to act inconsistently with a dedication (the no constraint contention). They stand in stark contrast with paragraph 9A in which the Council pleads that the Path Decisions are not amenable to judicial review for failure to have regard to mandatory considerations, legal unreasonableness or failure to comply with section 8 of the Act.
- I rule that the Council is not entitled to raise lack of amenability to review as an answer to the plaintiffs’ claim.[37]
Inconsistency with Dedications: standing
- The Attorney-General seeks to contend that the plaintiffs have no standing to assert that the Council breached or is proposing to breach the Dedications because only the Minister, a custodian and possibly the Attorney-General or person with his fiat have standing to assert such a breach (the standing contention).
- The Council does not plead that the plaintiffs lack standing. In a previous version of the Response to Statement of Grounds, the Council had pleaded lack of standing in relation to certain other grounds but not this ground and the Council later amended its Response to abandon all standing points.
- The plaintiffs submit that it is not open to the Attorney-General to make the standing contention given the issues joined between the plaintiffs and the defendant and the constraints imposed on the Attorney-General’s right to intervene in the action by subsection 9(2) of the Crown Proceedings Act.
- Section 9 relevantly provides:
9—Right of Attorney-General to appear in proceedings
...
(2) The Attorney-General may intervene, on behalf of the Crown, in any proceedings—
(a) in which the interpretation or validity of a law of the State or Commonwealth is in question; or
(b) in which—
(i) legislative or executive powers of the State or Commonwealth, or of an instrumentality or agency of the State or Commonwealth are in question; or
(ii) judicial powers of a court or tribunal established under the law of the State or Commonwealth are in question; or
(c) in which the Court grants permission to intervene on the ground that the proceedings raise issues of public importance,
for the purpose of submitting argument on issues of public importance.
(3) The Attorney-General has the same right of appeal in proceedings in which he or she intervenes under subsection (2) as a party to those proceedings.
(4) Where the Attorney-General intervenes in proceedings under this section, and there are in the opinion of the court special reasons for making an order under this subsection, the court may make an order for costs against the Crown to reimburse the parties to the proceedings for costs occasioned by the intervention.
(5) In this section references to the Attorney-General extend not only to the Attorney-General for this State but also to the Attorney-General for any other State or the Commonwealth and references to the Crown have a correspondingly extended meaning.
- The Attorney-General makes four submissions in support of his entitlement to make the standing contention, which I address seriatum.
Affect on Crown rights and liabilities
- The Attorney-General submits that the Crown is the owner of much of the Council coastal land in respect of which the plaintiffs are seeking orders and, because the rights and liabilities of the Crown as landowner may be directly affected by the Court’s orders, the Crown should be heard and the Attorney-General is entitled to be heard on behalf the Crown.
- In support of this submission, the Attorney-General cites the decision of the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd,[38] in which French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct....
In News Ltd v Australian Rugby Football League Ltd the Full Federal Court (Lockhart, von Doussa and Sackville JJ) said:
"Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest."
The relief claimed and granted – a constructive trust and a transfer of the land subject to the trust to the Club so as to make the interest transferred indefeasible on registration – directly affects the interests of any other person, like Walker Corporation, claiming an interest in the land, because orders in the Club's favour would, to a corresponding extent, be detrimental to those other persons.[39]
- The Attorney-General submits that, the State of South Australia being the owner of the land and a necessary party, he is entitled under subsection 9(1) of the Crown Proceedings Act to represent the State in the action.
- The State of South Australia is not a party to the action. It has not applied to be joined as a party. No suggestion was made before or during trial that it is a necessary party and the action should not proceed in the absence of its being joined. The Attorney-General did not raise this point until closing address and even so does not contend that the action is incompetent in the absence of the State being joined as a party. If the State were joined as a party, it would have the ability to make a standing contention and the Attorney-General would be entitled to represent the State as a party in the action. However, in the absence of the State being joined as a party, the Attorney-General cannot rely on the rights that the State would have if it were a party. I reject the Attorney-General’s submission.
Entitlement to be heard as intervenor
- The Attorney-General submits that, regardless of the basis on which he becomes an intervenor, once he attains that status, on the proper construction of subsection 9(2) of the Crown Proceedings Act he is entitled to make submissions at large including on any issue introduced solely by him. Even if he intervenes and is entitled as of right to intervene under section 9(2)(a) because the interpretation of a law of the State is in question and no leave is given under section 9(2)(c) to address any other issue, he is entitled to introduce any issue provided that it is of public importance.
- Subsection
9(2) creates a dichotomy between an entitlement of the Attorney-General to
intervene:
- as of right when the interpretation or validity of a law and/or legislative, executive or judicial powers are in question under paragraphs (a) and (b); and
- with the leave of the Court on the ground that the proceeding raises issues of public importance.
- In respect of paragraphs (a) and (b), the interpretation or validity of a law or legislative, executive or judicial powers will only be “in question” if they are raised by a party to the proceeding. Subsection 9(2) proceeds on the premise that any issue concerning the interpretation or validity of a law or legislative, executive or judicial powers will ipso facto be an issue of public importance.
- In respect of paragraph (c), the court is required to consider from first principles whether the proceeding raises issues of public importance. Again, there will only be an issue if it is raised by a party to the proceeding.
- Given this context, the reference in the final part of subsection 9(2) to “issues of public importance” on which the Attorney-General is intervening to submit argument is a reference back to the interpretation or validity of a law or legislative, executive or judicial powers which is in question in the proceeding referred to in paragraphs (a) or (b) or to the issue of public importance referred to in paragraph (c). It is not a reference to any issue that the Attorney-General may wish to introduce into the proceeding after having attained the status of intervenor.
- The evident purpose of subsection 9(2) is to enable the Attorney-General to submit argument on issues arising between the parties in the action concerning the interpretation or validity of a law or legislative, executive or judicial powers or any other issue of public importance in respect of which the Attorney-General has obtained the leave of the Court.
- This interpretation of subsection 9(2) is consistent with the general concept of an intervenor in proceedings in which the intervenor addresses issues raised between the parties rather than introducing new issues into the proceeding.[40]
- The fact that under subsection 9(5) the Attorney-General of any other State or the Commonwealth has an equal right to intervene supports an interpretation of subsection 9(2) that the right of intervention accords with the conventional concept.
- While the Attorney-General cannot raise an issue not raised between the parties, he can make submissions on the issues that are raised and take a position in relation to those issues that differs from that taken by the parties. This is exemplified in the present case where the Attorney-General’s submissions on the issues joined between the parties on amenability to review of the Path Decisions by reference to mandatory considerations differ in some respects from the submissions of both parties.
- In Hocking v The Southern Greyhound Racing Club Inc,[41] the Full Court held that the conventional role of an intervenor in Admiralty and Probate jurisdiction was limited to the field of litigation open to the original parties and an intervenor could not introduce new issues. The Court held that the same applied to WorkCover’s statutory right of intervention under section 123a of the Worker’s Rehabilitation and Compensation Act 1986 (SA).[42] The Attorney-General relies on a sentence in the judgment of King CJ:
The expression used [in section 123a] differs from that used in connection with the intervention by the Attorney-General in s 9 of the Crown Proceedings Act 1992 which is intervention for the purpose of submitting argument on issues of public importance.[43]
However, King CJ merely observed the difference between the two sections and did not hold that the Attorney-General is entitled to introduce new issues when intervening under the Crown Proceedings Act. I reject the Attorney-General’s submission.
A fresh issue?
- The Attorney-General submits that he is not raising a new issue and the standing contention is merely an aspect or corollary of the no constraint contention advanced by the Council.
- As observed above, the Council contends that on its proper construction the Crown Land Act does not impose any constraint upon a custodian not to act inconsistently with a dedication. The Attorney-General is entitled as a right to make submissions on this issue of statutory construction and he does so. However, the question whether the plaintiffs have standing to assert that the Council breached or is proposing to breach the Dedications only arises if the Crown Land Act does impose a constraint upon a custodian not to act inconsistently with a dedication.[44] The question of standing is separate and distinct from the question of the substantive operation of the Crown Land Act. I reject the Attorney-General’s submission.
Standing as going to jurisdiction
- The Attorney-General submits in the alternative to the above submissions that he is entitled to raise before the Court an issue that goes to the existence of the jurisdiction of the Court to hear the matter notwithstanding that it is not raised by the parties. He submits that the standing of the plaintiffs to seek relief is an essential element of the Court’s jurisdiction.
- It is well established that jurisdiction cannot be conferred on a court by the consent of the parties[45] and, if a question as to the court’s jurisdiction arises, at least in the case of a superior court and often in the case of an inferior court, the court should determine whether it has jurisdiction before granting relief in the matter.[46] Given the status and traditional role of the Attorney-General in the courts, regardless of section 9 of the Crown Proceedings Act a court would hear the Attorney-General on a question going to the existence of its jurisdiction.
- However, the existence of a plaintiff with standing does not go to the existence of the Court’s jurisdiction to grant prerogative relief at common law or declaratory or injunctive relief in equity any more than the existence of a plaintiff who has suffered loss as a result of negligence goes to the existence of jurisdiction to grant damages for breach of a duty of care. Prerogative writs were common law writs and declaratory and injunctive relief in equity applies in relation to both private and public rights. The rules as to standing are merely common law and equitable rules just as are the elements of a common law or equitable cause of action. Contrary to the submission made by the Attorney-General, the fact that the existence of standing and entitlement to relief are intertwined[47] supports, rather than detracts from, a conclusion that standing is not a matter going to the existence of the Court’s jurisdiction.
- In Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited,[48] the High Court considered the nature and origin of the rules as to standing. Gleeson CJ and McHugh J said:
The common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect, is based upon considerations of public policy which the legislature would not lightly disregard. Nevertheless, it is not difficult to understand why, in the case of certain laws, it might be considered in the public interest to provide differently.[49]
Gaudron J said:
Thus in this country, the general rule that only the Attorney-General may bring proceedings with respect to a public wrong is simply a rule of the common law.[50]
Gummow J traced the origin of the common law and equitable rules as to standing at length[51] and said:
The question arose as to the competency of parties other than the Attorney-General to proceed without the Attorney-General's fiat to seek enforcement of statutory regimes or obligations of a public nature. Here lies the genesis of the modern concept of "standing", in its translation from legislative to judicial proceedings. The litigious activity did not involve the exercise by a plaintiff of personal rights bestowed upon the plaintiff by statute. Rather, it involved the use of the auxiliary jurisdiction in equity to fill what otherwise were inadequate provisions to secure the compliance by others with particular statutory regimes or obligations of a public nature.
The result is that, at the time of the adoption of the Constitution, and with respect to a range of disputes which might thereafter attract federal jurisdiction, there was no single theory as to what always would be required to render competent the institution of proceedings by a particular party. In particular, there was no general rule which prescribed the adequacy in any given case of the connection between the instituting party and the subject matter for determination in that case. Further, in matters of what now would be called public law there was no single criterion as to the need for, or the content of, a standing requirement.[52]
- The High Court held that the reference in Chapter III of the Constitution to a “matter” does not in itself connote any special rules of standing and the Commonwealth Parliament has power to legislate to confer standing on any person to bring proceedings under section 80 of the Trade Practices Act 1974 (Cth). The position is a fortiori in relation to the jurisdiction of a State superior court in respect of which there is no constitutional requirement that there be a matter. I reject the Attorney-General’s submission.
Conclusion
- I rule that the Attorney-General is not entitled to raise lack of standing as an answer to the plaintiffs’ claim in respect of the Dedications.
C. PATH DECISIONS NOT IN ACCORDANCE WITH MANAGEMENT PLAN
- The plaintiffs contend that the Path Decisions are not in accordance with the Management Plan and are thereby invalid or alternatively unlawful.
- There
are six issues:
- On the proper construction of the Management Plan, does the access objective address access between the suburbs and the beach or through any part of the Council coastal land and is the environmental objective paramount or equal to the access objective?
- Does section 199 of the Act require a council to manage land in accordance with a community land management plan or is it merely aspirational?
- Does any requirement encompass development and maintenance or merely maintenance of the land?
- Does section 199 objectively require a council to manage community land in accordance with a community land management plan or does it require a council to manage the land in accordance with what it regards as being in accordance with the management plan?
- Are the Path Decisions in accordance with the Management Plan?
- Are the Path Decisions consequentially invalid or unlawful?
Construction of the Management Plan
- The first issue is whether on the proper construction of the Management Plan the access objective addresses access between the suburbs and the beach or through any part of the Council coastal land and whether the environmental objective is paramount or equal to the access objective.
- The Management Plan needs to be construed in the context of the legislative provisions requiring councils to prepare and adopt management plans and to comply with them, being Chapter 11 Part 1 Divisions 4 and 5 of the Act.
- Subsections 196(3), (5) (6) of the Act relevantly provide:
196—Management plans
...
(3) A management plan must—
(a) identify the land to which it applies; and
(b) state the purpose for which the land is held by the council; and
(c) state the council's objectives, policies (if any) and proposals for the management of the land; and
(d) state performance targets and how the council proposes to measure its performance against its objectives and performance targets; ...
(5) A management plan—
(a) should (as far as practicable) be consistent with other relevant official plans and policies about conservation, development and use of the land; and
Example—
The management plan should be consistent with strategic plans affecting development of land in the relevant area and with statutory or other official policies for protecting the State heritage, or for encouraging recreational or sporting activities, or for fostering tourism.
(b) must contain any special provisions required under the regulations.
Example—
The regulations may for example contain special provisions relating to the management of the Adelaide Park Lands for inclusion in the relevant management plans.
(6) In the event of an inconsistency between the provisions of an official plan or policy under another Act and the provisions of a management plan under this Act, the provisions of the official plan or policy prevail to the extent of the inconsistency.
- Section 199 requires a council to manage community land in accordance with any management plan for the relevant land.
- It is common ground that the Council coastal land is “community land” within the meaning of the Act and that the Council was required to prepare and adopt a community land management plan because the Council coastal land had been or was to be specifically modified or adapted for the benefit or enjoyment of the community.
- The Management Plan provided:
MANAGEMENT PLAN FOR COMMUNITY LAND
...
Coastal Reserve
...
Purpose for which the land is held
- To provide a hierarchy of open space strategically located throughout the City to meet the recreational needs of the community, to address specific environmental or urban design objectives and to provide protection of the land (as relevant).
Objectives for the management of the land
- To protect the coastal dune system and coastal vegetation and to provide convenient and controlled public access to the beach and environs
Policies and proposals for the management of the land
- To support State Government programs for coastal management as they affect the City.
- To deliver the State Government’s Coast Park initiatives.
- To support measures to protect, stabilise and refurbish the coastal dune system.
- To provide, as far as possible, a continuous shared-use two-way pathway or trail walkers, cyclists and other suitable users, along the coastal foreshore.
- To provide public access across the dunes in various forms in appropriate locations.
- To support the provision of facilities in beach localities that contribute to the convenience and enjoyment of the public.
- To recognise the importance of the coastal landscape of the Kaurna people, their culture and heritage.
- Infrastructure may be installed in certain locations to facilitate the pumping of sand to replenish stocks in other nearby coastal locations.
- To support the provision of facilities associated with the surf lifesaving activities.
- To facilitate the installation of public art in appropriate locations.
- To support programs that encourage community involvement in dune care and revegetation.
- To control the encroachment of plantings from private property that extends into the dunes
- To support measures to control pest plants and animals.
- Council may issue a permit to allow access over the Reserve or to allow for an activity of a ‘short term’ nature.
Policies
- Vegetation Management Plans
- Coastal Management Plan
- Open Space Strategy
- Development Plan–Charles Sturt Council
- Horses on the foreshore
- Use of Public Reserves for Commercial Fitness Activities
Performance targets
- To provide a safe and attractive facility developed to a level appropriate to its location and purpose.
Performance measures
- Regular inspection and maintenance of facility.
- Section 196(3)(c) requires a community land management plan to state the council’s objectives for the land. It is common ground that objectives are higher in the hierarchy of matters to be addressed than policies and proposals which fall within the scope of and are governed by the objectives specified in the plan. It is common ground that the Council’s activities are required to fall within the scope of the objectives specified in the plan.[53] It is common ground that the Management Plan is to be construed as a whole and in particular that the policies and proposals can throw light on the meaning of the objectives.
- The Council grouped policies and proposals together in the Management Plan without identifying which are policies and which are proposals. The plaintiffs do not suggest that this affects the validity of the Plan but the Council should have separated them.
- It
is common ground that there are two objectives specified by the Plan (the
dispute being about the relationship between them), namely:
- to protect the coastal dune system and coastal vegetation (the environmental objective);
- to provide convenient and controlled public access to the beach and environs (the access objective).
- The plaintiffs contend that, on the proper construction of the Plan, the second objective refers to the provision of public access between the suburbs and the beach perpendicular to the coast (east-west trails) and does not encompass a continuous path longitudinally through the dunes parallel to the coast. The plaintiffs contend that in any event the access objective is secondary to the first objective which is the paramount objective.
- The Council contends that, on the proper construction of the Plan, the access objective refers to the provision of public access to or through any part of the Council coastal land and is not confined to public access between the suburbs and the beach. The Council contends that the environmental objective and the access objective are of equal ranking and in the event of conflict it is a matter for the Council to determine which objective prevails and to what extent. I accept the Council’s second contention. The critical issue is whether the plaintiffs’ or the Council’s first contention is correct.
- Dealing first with the text of the provision, although like most words its connotation varies depending on the context, the noun “beach” in common parlance is generally understood as referring to the relatively flat sand (or shell grit or pebbles) washed by the seawater and sloping down to the sea (the sandy beach) and is not understood as encompassing sand dunes which lie landward thereof.
- Thus
the Macquarie Dictionary defines the noun “beach” as:
- The sand or loose water-worn pebbles of the seashore.
- That part of the shore of the sea, or of a large river or lake, washed by the tide or waves.[54]
Similarly, reflecting the more typical composition of English beaches, the Oxford English Dictionary includes the following definitions of the noun “beach”:
- The loose water-worn pebbles of the sea-shore; shingle.
...
3.a. The shore of the sea, on which the waves break, the strand; spec. the part of the shore lying between high-and low-water-mark. Also applied to the shore of a lake or large river...[55]
- The word “access” in common parlance is generally understood as referring to the means of entering a place (synonymous with “ingress”) or the means of entering or exiting from a place (encompassing “ingress” and “egress”). It is a thoroughfare from one place to another rather than a destination in itself.
- Thus
the Macquarie Dictionary includes the following definitions of the noun
“access”:
- way, means, or opportunity of approach or entry: *No healthy clothing is absolutely air-proof, the access of the air through it being necessary to our health –PHILIPE MUSKETT, 1893.
- (sometimes followed by to) the act or privilege of coming; admittance; approach: to gain access to a person.[56]
Similarly, the Oxford English Dictionary includes the following definitions of the word “access”:
I. Coming to or towards; approaching;
- The action of going or coming to or into; coming into the presence of, or into contact with; approach, entrance.
...
II. A way or means of approach.
- An entrance, channel, passage, or doorway.[57]
- The combined concept of “access to the beach and environs” connotes a pathway from the suburbs to the sandy beach and the environs including the water, the jetty and any other natural or man-made facilities thereon or therein. It does not connote a continuous coastal path through the sand dunes or inland of the sand dunes which is used by pedestrians and cyclists as an enjoyment in itself rather than providing a means of access to the sandy beach and environs.
- The reference to “convenient” access is appropriate to east west trails giving access from the suburbs to the sandy beach but is not apposite to a coastal path proceeding longitudinally through the dunes parallel to the coast. The reference to “controlled” access also supports the connotation of access to the sandy beach.
- Turning to the context of the provision, it is significant that the access objective follows the environmental objective. On the construction that the access objective refers to access to the sandy beach and environs, these two objectives will be largely harmonious because there will be only limited access through the coastal dune system and coastal vegetation for the purpose of giving convenient access to the sandy beach and environs. However, on the construction that the access objective encompasses a continuous coastal path longitudinally through the dunes parallel to the sea, these two objectives will be disharmonious because the access objective would allow pathways anywhere throughout the coastal dune system.
- The policies/proposals listed in the Management Plan include supporting State Government programs for coastal management as they affect the City and delivering the State government’s Coast Park initiative. The Coast Park initiative is set out in the Coast Park report referred to at [60] above. That report identifies five goals (equivalent in the hierarchy to the Management Plan’s objectives) which include the environmental protection and enhancement of beaches and dunes.[58] The construction of the coastal path was one of the proposals (at a lower level in the hierarchy) and it was made plain that this was subservient to environmental protection.[59]
- The proposals in the Management Plan include providing, as far as possible, a continuous shared-use two-way pathway for trail walkers, cyclists and other suitable users along the coastal foreshore. The words “as far as possible” reflect the fact that this is a proposal, which is subservient to the objectives and in particular to the environmental objective. I reject the Council’s contention that these words merely contemplate a physical or legal barrier to the pathway: the pathway can always be diverted from a straight line to accommodate any physical or legal barriers. The use of the words “the coastal foreshore” are used in contradistinction to the words used in the access objective of “the beach and environs”.
- The proposals in the Management Plan include providing “public access” across the dunes in various forms in appropriate locations. The use of the same words “public access” in the access objective supports a construction that the access objective refers to access being given to the sandy beach through the dunes where present. The fact that this proposal follows immediately after and is in contradistinction to the provision of a shared pathway also supports this construction.
- The listing of the Vegetation Management Plans as Relevant Policies also supports a construction that the access objective refers to access being given to the sandy beach rather than a continuous path in the dunes parallel to the coast. As referred to at [75] above, the aims set out in the Southern and Northern Vegetation Management Plans include the protection of native vegetation and native fauna and the objectives include minimising the number of access paths, which in context clearly refer to east-west paths giving access to the sandy beach.
- The evident purpose of the objectives and of the Management Plan as a whole is to facilitate the use of the Council coastal land for various human purposes but subject to environmental protection of the coastal dune system and coastal vegetation.
- The Council submits that the fact that it considered the path alignment at the same meeting at which it adopted the Management Plan and one option considered involved the coastal path proceeding through the dunes indicates that the Council intended the access objective to encompass a longitudinal path through the dunes. I reject that submission. Assuming without deciding that it is permissible to have regard to other business conducted at the same meeting for the purpose of construing the Management Plan, the decision to adopt the Management Plan was made before any consideration by the Council of the path alignment at that meeting. In addition, the Council did not make any decision at that meeting that the path should proceed through the dunes but merely decided to adopt Option 2 which encompassed a path on the grassed strip.
- A consideration of the text, context and evident purpose of the objectives and the Management Plan as a whole demonstrates that the second objective addresses public access to the sandy beach and environs and not to providing a continuous path longitudinally through the dunes.
Requirement to manage in accordance with management plan
- The next issue is whether section 199 of the Act requires a council to manage community land in accordance with a management plan or is merely aspirational.
- Section 199 provides:
199—Effect of management plan
A council must manage community land in accordance with any management plan for the relevant land.
- Starting with the text of the provision, it literally imposes a requirement on a council to manage community land in accordance with the relevant management plan. The use of the word “must” and the absence of any indication that it is intended merely to be aspirational support the construction that the section imposes a requirement upon councils.
- Turning to the context of section 199 within Division 4 of Chapter 11 Part 1, section 196 makes it mandatory for a council to prepare and adopt a management plan in the prescribed circumstances. Sections 197 and 198 make it mandatory for a council to engage in public consultation before adopting, amending or revoking a management plan. Subsection 197(3) requires a council to give public notice of adoption of a management plan. It is not suggested by the Council that these provisions do not impose requirements on councils and in any event this is plain. The fact that these provisions impose mandatory requirements and the fact that they require public consultation before and public notice of adoption of a management plan supports the construction that section 199 also does so.
- Turning to the context of section 199 within Part 1 of Chapter 11, section 200 prevents use of community land for a business purpose unless approved by the council and prevents the council approving such use contrary to a management plan. Sections 201 and 202 prohibit councils from disposing of or alienating community land except in prescribed circumstances. Section 207 requires a council to maintain a register of community land and make it available for inspection. Sections 200 to 202 and 207 are expressed in mandatory terms and their text, context and evident purpose all compel the conclusion that they impose obligations on a council. The fact that these provisions impose mandatory requirements supports the construction that section 199 also does so.
- The evident purpose of section 199 is to require councils to comply with community land management plans in managing the relevant community land. This would not be achieved effectively if section 199 were construed as merely being aspirational.
- Considered as a whole, the Act evinces a clear policy that councils be publicly accountable for their actions and their governance. Section 3 provides that the objects of the Act include providing a legislative framework for an accountable system of local government, ensuring the accountability of councils to the community and improving the capacity of the local government system to plan for and manage local areas. Section 6 provides that the role of a council includes acting as a responsible decision-maker. Section 8 requires a council to provide open, responsive and accountable government and achieve and maintain standards of good public administration. There are many substantive provisions in the Act which are designed to ensure proper planning by councils and that councils are accountable for their actions. Sections 196 to 199 are but part of those provisions.
- The Council points to the fact that section 199 is expressed in positive language (“must manage community land in accordance with any management plan”) and contends that it is not expressed to operate as a prohibition against managing community land contrary to a management plan. I reject that contention. A requirement to manage in accordance with a management plan necessarily connotes that a council cannot manage contrary to the management plan.
- The Council points to the fact that it is conceivable that a management plan might require a council to take affirmative action as opposed to merely being facilitative or prohibiting the council from taking certain action in certain circumstances. The Council submits that, if section 199 is construed as imposing a legal requirement, a council could be compelled by mandatory injunction to take affirmative action at council expense if and when the management plan requires such affirmative action. This submission is not sufficient to compel the construction of section 199 advanced by the Council. The spectre held out by the Council is highly theoretical because councils are likely to prepare management plans expressed in facilitative, prohibitory or flexible terms rather than prescribing that the council must take definite action within a definite period. While a council is required to state performance targets in a management plan, it is clear from the requirement to state performance measures that a council does not breach section 199 merely by not achieving its performance targets. In any event a council can revoke or amend a management plan subject to engaging in public consultation. In addition, a court has a discretion whether or not to grant an injunctive remedy (or indeed a declaration or mandamus) and an applicant for a mandatory (as opposed to a prohibitory) injunction faces a high hurdle in obtaining such relief. The spectre held out by the Council would be considered in the exercise of the discretion if the issue ever arose.
- The Council submits that community land management plans have a policy nature under section 196 and this militates against section 199 imposing a legal requirement as opposed to being aspirational. The Council relies on the following passage from the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:[60]
When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity.[61]
However, section 196 leaves it to the council to decide questions of policy that impact on the objectives, proposals etcetera contained in the management plan. Section 199 merely requires the council to manage the land in accordance with its own management plan. Questions of policy do not enter into the question arising under section 199 whether the council is managing the land in accordance with its management plan.
- The Council submits that resolution of the question whether a council is managing land in accordance with a management plan will often involve questions of fact and degree and this militates against section 199 imposing a legal requirement as opposed to being aspirational. The Council relies on the following passage from the judgment of Spigelman J (with whom Mason P, Handley and Sheller JJA and Cripps AJA relevantly agreed) in Woolworths Ltd v Pallas Newco Pty Ltd:[62]
Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.[63]
The context in which Spigelman J made this statement is important. The issue was whether the question arising under a development plan whether development was for "drive-in take-away establishments" being a use permitted with consent was to be determined by the council or objectively by a court. Despite the consideration that issues of fact and degree would arise, the Court held that the question was an objective one for the court. In the present case, the context is quite different. In addition, while the question whether a council is managing community land in accordance with its management plan could turn on a disputed factual issue, this may be expected to be uncommon. This factor weighed with all other constructional considerations does not dictate a conclusion that section 199 is aspirational.
- The Council submits that it is the legislature’s intention that non-compliance with a management plan is to have purely political consequences either on the election of Council members or by action taken by the Minister under Chapter 13 Part 3 of the Act. I reject that contention. It is impossible to impute an expectation by the legislature that compliance with section 199 would be a determinative election issue. The Ministerial powers in Chapter 13 would be expected to be exercised only in rare and exceptional cases. On the Council’s construction, section 199 would largely be a dead letter.
- On the proper construction of section 199, it imposes a legal requirement on a council to comply with a management plan.
Management: maintenance v development
- The next issue is whether the reference in section 199 to managing the land encompasses development and maintenance or merely maintenance of the land.
- The Council initially contended that both sections 196 and 199 are confined to maintenance and do not extend to development but ultimately concedes that section 196 addresses both development and maintenance and contends that section 199 is confined to maintenance.
- Sections 196 and 199 operate in conjunction. Section 196 imposes the obligation to prepare and adopt a plan for the management of the land and identifies its necessary content; while section 199 imposes the obligation to manage the land in accordance with the management plan. Section 196 uses the adjective “management” as the title of the management plan and the noun “management” in the course of defining its content; while section 199 uses the verbal equivalent being “manage”. Both sections appear in the same Division addressing community land management plans and deal with the same subject matter. It would be quite illogical for the legislature to have confined the obligation of a council to act in accordance with its management plan to maintenance activities when the management plan addresses both development and maintenance activities. I reject the Council’s contention that section 196 addresses both development and maintenance but section 199 addresses only maintenance
- Sections 196 to 199 manifest a legislative intention that sections 196 and 199 both address development and maintenance. The text of sections 196 and 199 indicate that the concept of management encompasses development and maintenance. Section 196(1)(c) provides that one of the triggers requiring a council to prepare and adopt a management plan is that the land is to be modified or adapted for the benefit or enjoyment of the community: modification and adaptation connote development as opposed to maintenance. Section 196(5)(a) requires a management plan to be (as far as practicable) consistent with other relevant official plans and policies about conservation, development and use of the land. The example refers to the management plan being consistent with strategic plans affecting development of land in the area. There is nothing in sections 196 to 199 that supports any limitation to maintenance of the land. It would be illogical, and contrary to the evident purpose of the sections, if the Council were required to prepare a management plan for the mere maintenance of land but not for its development.
- In addition, drawing a bright line between maintenance and improvement can be very difficult in practice. This is exemplified by the many taxation provisions, rulings and cases that address the difference in the context in which maintenance expenditure is deductible in the year in which it is incurred but improvement expenditure is not. It is very unlikely that the legislature intended that the power of councils to make management plans or their obligation to act in accordance with them was to depend on fine distinctions between maintenance and improvement.
- The Council points to the fact that in subsections 7(i) and (j) of the Act the word “manage” is used in conjunction with the word “develop” and this shows that the concept of managing in the Act is confined to maintaining the status quo. Subsections 7(i) and (j) include as council functions “to manage and, if appropriate, develop, public areas vested in, or occupied by, the council” and “to manage, improve and develop resources available to the council”. In these cases the word “manage” is deliberately used in contradistinction to development (and in the latter case also to improvement) and it takes its colour from its context. The same word when used in the same Act can have quite different meanings depending on the context and evident purpose of the provision in which the word is used. This is simply an example of that phenomenon.
- The Council’s contention that section 199 is confined to maintenance of land must be rejected.
Objective v subjective compliance
- The next issue is whether section 199 objectively requires a council to manage community land in accordance with a community land management plan or merely requires a council to manage the land in accordance with what it regards as being in accordance with the management plan.
- The text of section 199 supports the objective construction. There is no indication in the language of the section that it merely imposes an obligation on the council to manage the land in accordance with its own assessment of compliance with the management plan. This is also supported by the context of section 199 within Chapter 11 Part 1 Division 1 as a whole, which is directed to objective matters as opposed to the state of mind of the council.
- The evident purpose of section 199 also supports the construction advanced by the plaintiffs. The evident purpose of section 199 is to impose accountability on a council to comply with management plans which it has adopted for the management of community land. That evident purpose would be poorly served if the council were left to make its own assessment of its own compliance.
- On its proper construction, section 199 imposes an objective obligation on a council to comply with a relevant community land management plan.
Path Decisions in accordance with Management Plan
- The next issue is whether the Path Decisions are in accordance with the Management Plan.
- The 2016 Path Decision enabled the Council administration to proceed to design and construct the coastal path through the middle of the Swale in accordance with Option 2B. On any view, this would cause very substantial immediate damage to the dunes involving the removal of hundreds of plants and the long-term loss of at least three metres or approximately 20 per cent of the width of the Swale. As the path does not provide access to the beach and environs, the only relevant objective in the Management Plan was the environmental objective to protect the coastal dune system and coastal vegetation. The 2016 Path Decision is contrary to and inconsistent with the environmental objective and contrary to the Management Plan.
- The Council submits that the use of the land which harms a single plant or displaces a single grain of sand could not be regarded as lacking harmony with a management plan which seeks protection of dunes and vegetation among other competing objectives. However, I have held that on the proper construction of the Management Plan the construction of a longitudinal path does not fall within the access objective and hence there are no competing objectives. Notwithstanding this, it may be accepted that harm to a single plant or grain of sand would not be inconsistent with the environmental objective in the Management Plan. However, the harm to plants and habitat is on a vastly greater scale than harm to a single plant or grain of sand.
- The 2017 Path Decision enabled the Council administration to proceed to construct the coastal path through the middle of the Swale between Terminus Street and Hallam Terrace. On any view, this would cause very substantial immediate damage to the dunes involving the removal of approximately 800 plants as assessed by Ms Mader and the long-term loss of at least three metres or approximately 20 per cent of the width of the Swale. This is contrary to and inconsistent with the environmental objective and contrary to the Management Plan.
- The Council accepts that the Delegated Decisions stand or fall with the 2017 Path Decision.
Consequences of non-compliance
- The final issue is whether the Path Decisions are invalid or merely unlawful.
- The plaintiffs contend that the Path Decisions are invalid because they are inconsistent with the Management Plan. The Council contends that, if the plaintiffs are successful on the above issues, they are not invalid but merely unlawful.
- This issue turns on the proper construction of section 199 and whether it is the legislative intention discerned from its text, context and evident purpose to render a decision inconsistent with a community land management plan invalid.
- In Project Blue Sky Inc v Australian Broadcasting Authority,[64] the Australian Broadcasting Authority (ABA) made a standard under section 122 of the Broadcasting Services Act 1992 (Cth). Clause 9 required 50 per cent and then 55 per cent of broadcasts between 6 am and midnight by commercial licensees to comprise “Australian programs”. Subsection 122(4) provided that the standards must not be inconsistent with the Broadcasting Act or its regulations and section 160(d) provided that the Authority was to perform its functions in a manner consistent with Australia’s obligations under any agreement between Australia and a foreign country. Under an agreement between Australia and New Zealand, Australia was required to grant to New Zealanders access rights and treatment no less favourable than for Australians. The High Court held that clause 9 of the ABA standard was inconsistent with Australia’s obligations under that agreement and in breach of section 160. However, the High Court (Brennan CJ dissenting) held that the contravention of section 160 did not render the standard invalid. McHugh, Gummow, Kirby and Hayne JJ said:
...a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
...
...It is hardly to be supposed that it was a purpose of the legislature that the validity of a licence allocated by the ABA should depend on whether or not a court ultimately ruled that the allocation of the licence was consistent with a general direction, policy or treaty obligation falling within the terms of s 160. ... In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160. Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid.
Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.
In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.[65]
- In the present case, it is not necessary to decide whether section 199 renders void a decision by a council contrary to an applicable community land management plan. This is because, if it be assumed that section 199 does not have that effect, nevertheless a decision by a council contrary to an applicable management plan is unlawful and in the circumstances there is no reason why an injunction should not be granted to restrain the Council from acting on that decision. No discretionary considerations against the grant of such relief have been identified by the Council and it is appropriate to grant that relief. While I am disposed to consider that section 199 renders void a decision by a council contrary to an applicable community land management plan, I decline to decide the question.
- The plaintiffs are entitled to an injunction restraining the Council from taking action based on any of the Path Decisions.
D. PUBLIC CONSULTATION
- The plaintiffs contend that, in and before making the Management Plan Decision and the Path Decisions, the Council failed to comply with the Consultation Policy and those Decisions are thereby invalid or alternatively unlawful.
- There
are nine issues:
- On the proper construction of the Act:
(a) is a council required to comply with its public consultation policy when adopting a community land management plan other than insofar as it requires the taking of statutorily mandated steps?
(b) is a council required to comply with its public consultation policy when no specific provision of the Act mandates consultation but its public consultation policy does so?
- On the proper construction of the Act, is a council required to follow all steps set out in its policy or only those steps set out overtly therein?
- On the proper construction of the Act, is a council objectively required to comply with its public consultation policy or merely required to comply with what it regards as compliance with its policy?
- On the proper construction of the Consultation Policy, was the Council required to comply with it generally or only insofar as it referred to mandatory steps set out in the Act?
- Did the Council fail to comply with the Consultation Policy in respect of the Management Plan?
- Is the Management Plan consequentially invalid or unlawful?
- Are the Path Decisions consequentially invalid or unlawful?
- Did the Council fail to comply with the Consultation Policy in respect of the Path Decisions?
- Are the Path Decisions consequentially invalid or unlawful?
- I first address the issues where there is a commonality or overlap of issues in respect of the Management Plan Decision and the Path Decisions.
Requirement to comply with consultation policy
- The first issue is whether a council is required to comply with its public consultation policy in respect of adopting a community land management plan other than insofar as it requires the taking of statutorily mandated steps or when no specific provision of the Act mandates consultation but its public consultation policy does so.
- Section 50 of the Act requires a council to prepare and adopt a public consultation policy. It relevantly provides:
50—Public consultation policies
(1) For the purposes of this Act, a council must prepare and adopt a public consultation policy.
(2) A public consultation policy—
(a) must set out steps that the council will follow in cases where this Act requires that a council must follow its public consultation policy; and
(b) may set out steps that the council will follow in other cases involving council decision-making.
(3) The steps referred to in subsection (2)—
(a) in a case referred to in subsection (2)(a)—must provide interested persons with a reasonable opportunity to make submissions in the relevant circumstances; and
(b) may vary according to the classes of decisions that are within the scope of the policy.
(4) However, a public consultation policy for a case referred to in subsection (2)(a) must at least provide for—
(a) the publication of a notice—
(i) in a newspaper circulating within the area of the council; and
(ii) on a website determined by the chief executive officer,
describing the matter under consideration and inviting interested persons to make submissions in relation to the matter within a period (which must be at least 21 days) stated in the notice; and
(b) the consideration by the council of any submissions made in response to an invitation under paragraph (a).
- Subsections 50(5) to (7) empower a council to amend a public consultation policy or substitute a new one but (unless the alteration is of only minor significance) the council must first undertake prescribed consultation in relation to the alteration. Subsections 50(8) and (9) entitle any person to inspect and take a copy of a council’s public consultation policy.
- There are various provisions of the Act which require a council to follow the relevant steps set out in its public consultation policy before making certain decisions or taking certain action. One of those provisions is subsection 197(1), which provides:
197—Public consultation on proposed management plan
(1) Before a council adopts a management plan for community land it must—
(a) make copies of the proposed plan available for inspection or purchase at the council's principal office; and
(b) follow the relevant steps set out in its public consultation policy.
- The
Act also requires a council to follow the relevant steps set out in its public
consultation policy before:
- adopting, altering or substituting its code of practice for public access to council and committee meetings and minutes (subsection 92(5));
- excluding land from classification as community land or revoking such a classification (sections 193(2) and 194(2)(b));
- granting a lease or licence relating to community land (subsection 202(2));
- granting an authorisation that would result in the enclosure of or impedance of traffic on any part of a road (subsection 223(1));
- planting or authorising the planting of vegetation on a road that may have a significant impact on residents, businesses or advertisers (section 232(b)).
In respect of these cases, subsection 50(4) requires that the public consultation policy must at least provide for the consultation specified in paragraphs (a) and (b) thereof (the subsection 50(4) steps).
- The
Act also requires a council to follow the relevant steps set out in its public
consultation policy and requires that a public
consultation policy at least
provide for steps defined in the relevant section be taken before:
- adopting its annual business plan (section 123(3)(b) with required steps defined in subsection (4));
- changing its rating system (section 151(5)(e) with required steps defined in subsection (7));
- changing differentiating factors for its differential rating system (section 156(14a)(b) with required steps defined in subsection (14c)).
Management Plan Decision
- The Council accepts that, before adopting the Management Plan, it was required by subsection 197(1) to take the subsection 50(4) steps and a failure to do so would at least have been unlawful. It is common ground that the Council did take the subsection 50(4) steps. The plaintiffs contend, and the Council denies, that the Council was required by subsection 197(1) and section 50 to follow relevant steps set out in its public consultation policy regardless of whether they are subsection 50(4) steps.
- The text of subsection 197(1) on its face requires a council to follow the steps set out in its public consultation policy and does not limit those steps to subsection 50(4) steps. The text of section 50(2)(a) refers to a public consultation policy setting out the steps that the council will follow where it is required by the Act to follow its public consultation policy and does not limit those steps to subsection 50(4) steps. The text of subsection 50(4) refers to a public consultation policy at least providing for defined steps to be taken and does not limit a public consultation policy to only those steps.
- The text of section 50(2)(b) provides that a public consultation policy may set out steps that the council will follow in cases where the Act does not mandate public consultation and uses the same language (“the council will follow”) as section 50(2)(a) uses in respect of cases where the Act does mandate public consultation.
- The text of section 50 considered as a whole creates a regime for a council to include in its public consultation policy steps considered by the council to be necessary before making the relevant decision and does not confine the regime to imposing statutorily prescribed consultation requirements.
- Subsection 50(4) is clearly not a code of steps required to be provided for in a public consultation policy. For example, section 123(3)(b) requires a council before adopting its annual business plan to follow the relevant steps set out in its public consultation policy and subsection 123(4) requires that a public consultation policy at least provide for the steps defined therein to be taken, which are more extensive than those prescribed by subsection 50(4).
- Textual and contextual considerations support the construction advanced by the plaintiffs.
- Considered as a whole, the Act evinces a clear policy that councils consult with their constituents. Section 3 provides that the objects of the Act include encouraging the participation of local communities in the affairs of local government. Section 6 provides that the role of a council includes acting as an informed and responsible decision-maker in the interest of the community. Section 8 requires a council to provide open, responsive and accountable government and be responsive to the needs, interests and aspirations of individuals and groups within its community.
- The evident purpose of section 50 and the other provisions such as section 197 is to require a council to prepare and adopt a public consultation policy; to prescribe certain minimum requirements in respect of public consultation in defined circumstances; and to make the council accountable to its constituents by requiring that it follow the steps set out in its policy. By adopting a public consultation policy including steps not required by the Act to be included therein, a council holds itself out to its constituents as being obliged to follow the steps it has chosen to set out therein and attracts a statutory obligation to do so.
- If it had been the legislative intention to confine the obligation of a council to consult to those steps prescribed in specific provisions of the Act, the legislature would have adopted the obvious drafting technique of simply requiring a council to take the prescribed steps rather than imposing an indirect requirement that it follow the steps set out in its public consultation policy and that its policy require those steps.
- The Council submits that it is unlikely that the legislature intended to require a council to follow a provision of its public consultation policy other than to the extent statutorily mandated when the legislature has no understanding of or apparent interest in the content of the policy in those circumstances. However, the Act evinces a clear intention that councils should be accountable. In addition to the provisions referred to above, the provisions summarised at [336] above evince such an intention.
- The Council submits that the requirement in section 197(1)(b) to follow the “relevant” steps set out in its public consultation policy is a reference to those steps set out in the policy for the purpose of section 50(2)(a) and not those set out for the purpose of section 50(2)(b). However, the reference to “relevant” steps is simply a reference to those steps in the public consultation policy applicable to adoption of a community land management plan as opposed to some other type of decision. Although there is nothing in subsection 50(2) or section 197(1)(b) that prevents a council’s policy setting out a discrete set of steps to follow in cases where the Act mandates consultation and a different set of steps to follow in cases where the Act does not mandate consultation, there is nothing which prevents a council’s policy requiring certain steps to be followed in respect of both statutorily mandated consultation and non-statutorily mandated consultation. This is in fact the approach taken by the Consultation Policy.
- On the proper construction of sections 50 and 197, the Council before adopting the Management Plan was required to follow the relevant steps set out in its public consultation policy and not just the steps prescribed by the Act.
Path Decisions
- The Council contends that on the proper construction of section 50 it was not required to comply with the Consultation Policy in respect of the Path Decisions because section 50 does not require a council to follow its public consultation policy except where another provision of the Act specifically requires it to do so in respect of a specific type of decision.
- Leaving aside section 50, the Act does not of its own force require a council to consult before making decisions other than those the subject of the specific provisions summarised at [372] and [373] above. The Path Decisions are not the subject of any of those specific provisions.
- However section 50 requires a council to prepare and adopt a public consultation policy and section 50(2)(b) provides that the policy may set out steps that the council will follow in cases involving council decision-making other than those where the Act requires the council to follow its public consultation policy.
- In the absence of section 50(2)(b), there would be nothing in the Act preventing a council from voluntarily adopting a policy for consultation in respect of decisions other than those for which the Act requires public consultation. The evident purpose of including section 50(2)(b) is to provide that, if a council chooses to make other decisions subject to its public consultation policy, the council must follow the policy in making such decisions. It is significant that in this respect section 50(2)(b) uses the same language (“the council will follow”) as section 50(2)(a) uses in respect of cases where the Act mandates public consultation.
- If as I have concluded in cases where the Act mandates public consultation a council is required to follow all steps set out in its public consultation policy and not just the steps prescribed by the Act, there is no reason why the Act should not be construed consistently where public consultation is not mandated but a council adopts a public consultation policy which requires public consultation. The considerations addressed above leading to the interpretation that a council is required to follow all steps set out in its public consultation policy when minimum requirements are prescribed apply also when a council adopts a public consultation policy in respect of decisions not addressed by the Act.
- The Council points to the use of the word “may” in section 50(2)(b). However, this indicates that a council is not required to set out steps that it will follow in other cases involving council decision-making: it does not connote that, if the council elects to set out such steps, it is not obliged to follow them. On the contrary, the use of the word “will”, being the same word that is used in section 50(2)(a) addressing mandatory consultation, indicates that it is mandatory for the council to follow the steps if it elects to set them out in its policy.
- On the proper construction of section 50, the Council before making the Path Decisions was required to follow the relevant steps set out in the Consultation Policy.
Steps set out in community consultation policy
- The next issue is whether on the proper construction of the Act a council is required to follow all steps set out in its policy or only those steps set out overtly therein.
- The Council contends that the only steps that a council is required by the Act to take are any overt substantive steps set out in the public consultation policy itself and not any preliminary steps set out in the public consultation policy that require some step to be taken before the substantive steps are determined. The substantive steps are confined to interactions between the council and the public, including consideration of public submissions by the council. While the Consultation Policy sets out steps that the Council is required to take, they are only preliminary steps that lead to the identification of substantive steps required to be taken. The identification when consultation is required and the form of the consultation have to be set out on the face of the policy; they cannot depend on any extraneous determination by the Council.
- Textual considerations do not support the construction advanced by the Council. Subsection 50(2) refers to “steps” that the council will follow: it does not refer to or confine attention to the ultimate substantive steps to be taken by the council.
- There is no reason why the legislature intended to preclude a public consultation policy providing for criteria to be determined in a given case that dictate the form of consultation. There is no reason why the steps to which the section refers are confined to steps set out on the face of the policy.
- The construction advanced by the Council would cause unintended results. For example, if a council’s public consultation policy said that notice was to be published in one of two local newspapers to be decided by the chief executive officer, that is depending upon an internal decision, there would not be compliance with the Act on the Council’s construction. Similarly, if a council’s public consultation policy said that the council was to allow a number of weeks for submissions on a draft community land management plan determined by the chief executive officer who determined four weeks, on the Council’s construction there would be a breach of the Act.
- On the construction advanced by the Council taken literally, the Consultation Policy does not comply with the Act because it does not set out any steps that the Council will follow in cases where the Act requires that a council must follow its public consultation policy but only cross refers to provisions of the Act.
- There is no reason to attribute an intention to the legislature that a council is obliged to follow steps set out in its public consultation policy only when the overt substantive steps are set out in the policy itself and not when some preliminary decision is to be made before those steps are identified or the policy requires the steps to be identified in accordance with defined procedural steps to be taken by the council.
- The Council submits that, on the construction advanced by the plaintiffs, it would be more difficult for third parties to ascertain whether a council had complied with its public consultation policy because the overt steps to be taken would not necessarily be set out in the policy and that could only be ascertained by reference to decisions made by the council. The Council submits that this is a reason not to construe section 50 as encompassing anything other than overt steps. However, even in respect of the minimum steps mandated by the Act it may be difficult to ascertain whether a council has taken the requisite steps. In those cases in which the steps are decided by the council in general meeting, a third party can ascertain the required steps from the minutes required by section 91 of the Act to be publicly available. In those cases in which the steps are decided by council administration, a third party can ascertain the required steps on an internal review under section 270 of the Act. This is a consideration to be taken into account, but it does not outweigh the other considerations in support of the construction advanced by the plaintiffs.
- On the proper construction of section 50, the Council was required before making the Management Plan Decision and the Path Decisions to follow the relevant steps set out in the Consultation Policy, whether they be ultimate substantive steps or procedural steps to lead to the determination of ultimate substantive steps to be taken.
Objective v subjective compliance
- The next issue is whether on the proper construction of the Act a council is objectively required to comply with a public consultation policy or merely required to comply with what it regards as compliance with its policy.
- The Council contends that on the proper construction of the Act a council is only required to form the view that it has complied with its public consultation policy.
- The text of section 50 supports the objective construction. There is nothing in the text of section 50 or in the Act generally that indicates that the question whether a council has complied with its public consultation policy is to be determined by the council itself. This is also supported by the context of the specific provisions summarised at [372] and [373] above, which require a council on any view to at least follow the steps in its policy that are mandatory under those sections.
- The subjective construction would be contrary to the evident purpose of section 50 of requiring a council to comply with its public consultation policy. That evident purpose would be poorly served if the council were left to make its own assessment of its own compliance.
- On its proper construction, section 50 imposes an objective obligation on a council to comply with a relevant community land management plan.
Consultation Policy requirement to comply
- The next issue is whether on the proper construction of the Consultation Policy the Council was required to comply with it generally or only insofar as it referred to mandatory steps set out in the Act.
- The Council contends that on the proper construction of the Consultation Policy it was not required to comply with it in respect of the Management Plan Decision other than taking the steps mandated by sections 50(4) of the Act and it was not required to comply with it at all in respect of the Path Decisions. The only mandatory requirement contained within the Consultation Policy is to comply with those provisions of the Act which require a council to consult before making a specified type of decision.
- Clause 3.4 of the Policy provides:
3.4 Local Government Act 1999 Requirements
The following sections of Local Government Act 1999 prescribe a public consultation requirement or make reference to Council’s Public Consultation Policy:
- Access to documents (S.132(3))
...
- Trees (S.232(b))
In these instances Council must comply with the Act and/or follow the steps outlined in the Public Consultation Implementation Procedure.
Where there are legislative requirements for consultations under other legislation, for example the Development Act, then these take precedence over the Public Consultation Policy should there be any inconsistency.
- The Council submits that, by reason of the use of “and/or” in the middle paragraph, the paragraph should be construed such that the Policy provides that, where there is a consultation requirement contained in the Act, the Council must at its option do one of the following three alternatives:
(a) comply with the Act; or
(b) follow the steps set out in the Consultation Policy; or
(c) comply with the Act and follow the steps set out in the Consultation Policy.
- The construction advanced by the Council is untenable. On that construction, the middle paragraph would give an option to the Council whether to comply with the Act or with the Policy, but this would be irrational. The plain intent of the middle paragraph is to cover three situations: if the Act alone imposes a requirement to consult, the Council must comply with the Act; if the Consultation Policy alone imposes a requirement to consult, the Council must comply with the Consultation Policy; and if both the Act and the Consultation Policy impose a requirement to consult, the Council must comply with both.
- The third paragraph extracted above refers to legislative requirements for consultation outside the Act and, by providing that the legislative provisions take precedence in the event of any inconsistency, it plainly proceeds on the basis that to the extent that there is no inconsistency the Consultation Policy applies. It would be irrational to exclude the operation of the Consultation Policy where the Act imposes a requirement but not where other legislation imposes a requirement.
- If the Council intended to exclude the application of the Consultation Policy where the Act imposes a requirement, the Consultation Policy would have said so expressly rather than in the elliptical manner suggested by the Council.
- Clause 6 of the Procedure sets out sections of the Act that require consultation to be undertaken (including section 50) and then sets out “the minimum requirements to comply with the sections reference[d] above” by paraphrasing the subsection 50(4) requirements. This plainly proceeds on the basis that the Council will always comply with these minimum requirements but may well decide on application of the balance of the Consultation Policy to take additional steps.
- The Council submits that the Consultation Policy creates a dichotomy between statutorily mandated consultation and non-statutorily mandated consultation. The Council submits that clauses 3.1, 3.2 and 3.3 of the Policy apply exclusively to non-statutorily mandated consultation; whereas clause 3.4 applies exclusively to statutorily mandated consultation. This is not a sensible reading of clause 3 of the Policy. Clause 3.1 sets out the principles that underpin the Council’s public consultation policy and approach to community engagement. Clause 3.2 sets out the five levels of engagement. Clause 3.3 sets out the respective responsibilities of Council members and the Chief Executive Officer. In each case, the clause manifestly applies to all types of consultation and not just non-statutorily mandated consultation. Considered more generally, on the Council’s construction compliance with many of the provisions of the Consultation Policy would be required when the Act does not impose a requirement but not when it does, which is an irrational distinction.
- Leaving aside the paragraphs upon which the Council relies, the balance of the Consultation Policy proceeds on the basis that compliance is mandatory. Clause 2 of the Policy provides that it “applies to Council members, staff, contractors and consultants acting on behalf of Council delivering Council’s community engagement and consultation programs and activities”. Clause 3 provides that the Council “is committed to delivering effective community engagement to identify and understand community concerns and aspirations, support mutual communication and collaboration, build effective partnerships and encourage an actively engaged citizenry”.
- The Council points to aspects of the Procedure that are advisory rather than mandatory. However, the mere fact that advisory aspects are included does not detract from the essential aspects being mandatory.
- On the proper construction of the Consultation Policy, the Council is required to comply with its provisions in respect of the Management Plan Decision and the Path Decisions and the requirement for compliance is not confined to taking the steps mandated by subsection 50(4) of the Act in respect of the Management Plan decision.
Management Plan Decision
Breach of Consultation Policy
- The next issue is whether the Council failed to comply with the Consultation Policy in respect of the Management Plan
- The plaintiffs contend that the Council breached the Consultation Policy in and before making the Management Plan Decision because neither the Council in general meeting nor the Chief Executive Officer determined the appropriate level of engagement, which was a necessary preliminary to determining whether the Council in general meeting or the Chief Executive Officer had the authority to determine the consultation to be engaged in. The plaintiffs contend that in any event neither the Council in general meeting nor the Chief Executive Officer determined the consultation to be engaged in.
- Clause 3.2 of the Policy defines the five levels of engagement as follows:
The five ascending levels of engagement (referenced from the International Association of Public Participation Spectrum) represent the depth and complexity of the community engagement project. |
Inform |
Consult |
Involve |
Collaborate |
Empower |
Council will... |
Provide balanced and objective information to assist in developing community understanding on a project or issue. |
Provide options for consideration and seek feedback on communities concerns and preferences. |
Work with communities through multiple stages of a project to ensure that concerns and aspirations are understood and considered. |
Work in partnership with the communities, with project ‘ownership’ shared equally. |
Delegate final decision making power to communities. |
Community will... |
Listen |
Contribute |
Participate |
Partner |
Decide |
- Clause 3.2 provides:
The level of engagement is determined during the project planning phase of the project and will vary dependent on individual project context with consideration given to project complexity, levels of community interest, level of impact (economic, environmental, social and cultural), political sensitivity, timelines and resource availability.
- Clause 3.1 of the Procedure defines the CEO’s role as follows:
The role of the CEO, supported by staff, is to plan the community engagement as per this procedure.
- Clause 3.2 addresses planning of the community engagement approach. It defines the authority to approve the form of consultation according to the level of engagement:
Approval responsibilities:
- Council Members are responsible for approving consultations with an engagement level of Involve, Collaborate or Empower.
- The CEO is responsible for consultations with the engagement level of ‘Inform or Consult’. Staff are to liaise with their Manager or General Manager.
- Ms Cornish accepted during cross-examination that at no point did anyone on behalf of the Council determine the appropriate level of engagement. While Ms Morphett assigned different levels of engagement to Options 1 to 4, this was done by reverse engineering from the options rather than anyone determining the appropriate level of engagement in the first place. The Council does not contend otherwise.
- While it is hypothetical what level of engagement would have been appropriate given that no selection was made, the Consultation Policy sets out the criteria for the level of engagement. It was clear that the Management Plan involved high political interest, affected the broad community, had moderate to high impact, and involved divided community views and multiple issues such that it would have been inevitable that an appropriate level of engagement would have been at least at the level of Involve if the Council had turned its mind to the appropriate level of engagement.
- Ms Cornish accepted during cross-examination that the Council in general meeting did not at the workshop on 25 January 2016 decide upon the form of consultation to be undertaken. There was merely a discussion during which different elected members expressed different preferences. Ms Cornish accepted during cross-examination that Mr Sutton did not make the decision about the form of consultation to be undertaken. I have made a finding to this effect at [261] above. The Council does not in any event contend that the form of consultation was decided by the Council in general meeting or the Chief Executive Officer.
- The Consultation Policy required a determination of the appropriate level of engagement before any decision was made as to the form of consultation. The Council acted in breach of the Consultation Policy by not making any determination of the appropriate level of engagement. This in turn entailed that there was no determination whether authorisation of the form of consultation was to be made by the Council in general meeting or could be made by the Chief Executive Officer.
- Further, no determination by either the Council in general meeting or the Chief Executive Officer was made as to the form of consultation. This was in breach of the Consultation Policy.
Consequences of breach
- The next issue is whether the Management Plan is invalid or unlawful as a result of the failure to comply with the Consultation Policy and whether the Path Decisions are invalid or unlawful as a result of the invalidity or unlawfulness of the Management Plan.
- The plaintiffs contend that the Management Plan is invalid because it was made in breach of the Consultation Policy. The Council contends that, if the plaintiffs are otherwise successful in relation to their contentions about compliance of the Management Plan with the Consultation Policy, it is not invalid but merely unlawful.
- In the present case, it is not necessary to decide whether sections 50 and 197 render void a community land management plan adopted in contravention of a public consultation policy. If it be assumed that the Act does not have that effect, nevertheless a community land management plan adopted in contravention of a public consultation policy is unlawful and in the circumstances there is no reason why an injunction should not be granted to restrain the Council from acting on it. No discretionary considerations against the grant of such relief have been identified by the Council and it is appropriate to grant that relief. While I am disposed to consider that sections 50 and 197 do not render void a community land management plan adopted in contravention of a public consultation policy, I decline to decide the question.
- The plaintiffs are entitled to an injunction restraining the Council from taking action based on the Management Plan. The Path Decisions are consequentially unlawful and the plaintiffs are entitled to an injunction restraining the Council from taking action based on them.
Path Decisions
Breach of Consultation Policy
- The next issue is whether the Council failed to comply with the Consultation Policy in respect of the Path Decisions.
- The plaintiffs contend that the Council breached the Consultation Policy in and before making the 2016 Path Decision because, having decided to consult with the community and having consulted on Options 1 to 4 as defined in the 2014 Planning Study, the Council proceeded to authorise the Council administration if it thought fit to adopt Option 2B as defined in the 2015 Planning Study when there had been no public consultation in relation to Option 2B.
- On 12 August 2013 the Council resolved to undertake public consultation in two stages. The first stage was for the Council to work collaboratively with a project reference group to develop a set of shortlisted draft design options. The outcome of this first stage was defined as follows:
Council Staff to refine and cost up short listed design options and prepare a report to Council to endorse short list options for broad community consultation purposes.
The second stage was for the Council to consult with the community at the engagement level of “Consult” to gather broad community feedback on the community’s preference out of the shortlisted options. The outcome of this second stage was defined as follows:
Council Staff to report back to Council on Speak Out #2 consultation results. Council to consider community views and endorse an option to progress to detail design.
The Council was at the end of stage two to make a decision on which of the shortlisted options should be adopted.
- The Consultation Policy defines the form of consultation when the level of engagement is “Consult” as being that the Council provides “options for consideration and seeks feedback on community’s concern and preferences” and the community “contributes”.
- Throughout the balance of 2013 and 2014, the Council administration undertook the first and second stages in accordance with the 12 August 2013 resolution. The first stage resulted in the creation of four shortlisted design options being Options 1 to 4 defined in the 2014 Planning Study and the second stage involved broad public consultation in relation to those four options.
- When the Council made the 2016 Path Decision on 26 April 2016, it resolved to adopt Option 2 as defined in the 2015 Planning Study and to authorise Council administration to proceed with either Option 2A or Option 2B as defined therein. Option 2B involved a three metre wide concrete path through the dunes throughout the southern and northern sections. This was a fundamentally different option to option 2 the subject of the 2014 study. Option 2B was not one of the shortlisted options discussed or developed with the Project Reference Group at stage one and there was no public consultation in relation to Option 2B as part of stage two being Speak Out #2. This decision was in clear breach of the Consultation Policy because, having resolved to consult with the community at the engagement level of Consult in relation to the options, the Council did not engage in any consultation in relation to option 2B.
- When the Council made the 2017 Path Decision on 23 January 2017, it resolved to adopt a design that effectively adopted option 2B between Terminus Street and Hallam Terrace except that it now comprised a boardwalk rather than a concrete path and option 2A for the balance of the southern section and for the northern section. The Council delegated to the Chief Executive Officer and General Manager Asset Management the power to vary the path alignment and this delegation power was exercised to move the path into the Swale in the area between notional westerly extensions of Northcote Lane and Moredun Street. The 2017 Path Decision was in clear breach of the Consultation Policy because, having resolved to consult with the community at the engagement level of Consult in relation to the options, the Council did not engage in any consultation in relation to option 2B.
- The Council draws attention to the fact that the 2014 Planning Study at page 48 contains a sectional diagram for Option 2 at “View 1: Beachfront south of Hallam Terrace” which shows a three metre maximum shared path with the notations “[e]dge of existing dune” and “[a]ctual path location to be confirmed in detailed design to minimise impacts on existing vegetation and privacy of residents”. The Council submits that this indicated that the path location was somewhere within the existing dunes. I reject this submission for several reasons. First the sectional diagram shows the path on the boundary between the grassed area and the dune system and not in the dune system itself. Secondly the photograph of the grassed strip showing the proposed position of the path clearly shows the path proceeding along the edge of the grassed strip and is inconsistent with it proceeding through the dunes. Thirdly the existing conditions diagram at page 21 shows the width of the grassed strip at 12 to 15 metres at this location and the diagram at page 48 shows a total width including the shared path of nine to 13 metres. Fourthly the reference in the notation to minimising impacts on existing vegetation is inconsistent with a path through the dunes. Fifthly the narrative at page 23 under the heading “Flora & Fauna Assessment” concerning the importance of preserving the vegetation in the Swale is inconsistent with a path through the dunes.
- The Council draws attention to the sectional diagram at “View 2: Beachfront at Moredun Street” at page 48 which shows a three metre partially elevated boardwalk with the notations “[e]levated boardwalk and protection balustrade to minimise dunal vegetation disturbance” and “[a]ctual path location to be confirmed in detail design to minimise impacts on existing vegetation and privacy of residents”. The Council submits that this indicated that the path location was somewhere within the existing dunes. I reject this submission for largely the same reasons. First the sectional diagram shows the path on the very edge of the dune system and nowhere near the centre of the Swale. Secondly the photograph of the grassed strip showing the proposed position of the path clearly shows the path proceeding at the edge of the grassed strip and is inconsistent with the path proceeding through the dunes. Thirdly the reference in the notation to minimising impacts on existing vegetation is inconsistent with a path through the dunes. Fourthly the narrative at page 27 under the heading “Flora & Fauna Assessment” concerning the importance of preserving the vegetation in the Swale is inconsistent with a path through the dunes.
- The Council draws attention to the corresponding sectional diagrams for Option 2 at the fourth page of the Information Package which show the same details and contain the same quotations and makes the same submissions. I reject these submissions for similar reasons. Although the Information Package did not contain a Flora & Fauna Assessment as such, it did identify Technical Constraints in respect of the beachfront including the need for protection of dunes from erosion, avoiding impacts on high quality vegetation, maintaining high value ecological patches and avoiding high quality vegetation fragmentation. A comparison between the 2014 Planning Study/Information Package and the 2015 Planning Study showing Option 2B clearly demonstrates that Option 2B was not depicted in the 2014 Planning Study and Information Package and was not the subject of public consultation.
- Each of the Path Decisions was made in breach of the Consultation Policy.
Consequences of breach
- The next issue is whether the Path Decisions are invalid or unlawful as a result of the failure to comply with the Consultation Policy.
- For the reasons given above, it is not necessary to decide whether section 50 renders void a decision made in contravention of a public consultation policy. The plaintiffs are entitled to an injunction restraining the Council from acting on the Path Decisions.
E. MANAGEMENT PLAN COMPLIANCE WITH SECTION 196(3)
- The plaintiffs contend that the Management Plan fails to state performance targets or how the Council proposes to measure its performance against its objectives; these are required by section 196(3)(d) of the Act; and the Management Plan is thereby invalid or alternatively unlawful.
- There
are five issues:
- Does section 196 require a community land management plan to contain performance targets and a statement how the Council proposes to measure its performance against its objectives and performance targets or is it merely aspirational?
- Does section 196 objectively require a community land management plan to contain performance targets and a statement how the Council proposes to measure its performance against its objectives and performance targets or does it require a management plan to contain what the council regards as performance targets and what it regards as a statement of how it proposes to measure its performance against its objectives and performance targets?
- Does the Management Plan state performance targets and how the Council proposes to measure its performance against its objectives and performance targets within the meaning of section 196?
- Is the Management Plan consequentially invalid or unlawful?
- Are the Path Decisions consequentially invalid or unlawful?
Requirement to address prescribed matters
- The first issue is whether section 196 requires a management plan to contain performance targets and a statement how the Council proposes to measure its performance against its objectives and performance targets (performance measures) or whether it is merely aspirational.
- Subsection 196(3) relevantly provides:
(3) A management plan must—
(a) identify the land to which it applies; and
(b) state the purpose for which the land is held by the council; and
(c) state the council's objectives, policies (if any) and proposals for the management of the land; and
(d) state performance targets and how the council proposes to measure its performance against its objectives and performance targets; ...
- The Council does not plead in its Response that a council is not required by subsection 196(3) to include objectives, performance targets, performance measures, etcetera within the meaning of the subsection. However, it makes this contention in its oral closing address and the plaintiffs do not object to it on the ground that it is not pleaded. I therefore address it on its merits.
- Starting with the text of the provision, section 196(3)(d) literally imposes a requirement on a council to include performance targets and how the council proposes to measure its performance against its objectives and performance targets in a management plan. The use of the word “must’ and the absence of any indication that it is intended merely to be aspirational support the construction that the section imposes a requirement that, to be a community land management plan, a plan must contain performance targets and performance measures.
- Turning to the context of paragraph (d) within subsection 196(3), the other paragraphs are expressed to require a management plan to identify the subject land, the purpose for which the land is held, the council's objectives for the management of the land and the council's proposals for the management of the land. These are expressed in mandatory terms. The Council rightly accepting that it is mandatory to identify the subject land, there is no good reason to distinguish paragraph (d) in this respect from paragraph (a).
- Turning to the context of subsection 196(3) within section 196, the fact that subsection 196(1) makes it mandatory for a council to have a management plan suggests that subsection 196(3) defines the requirements for a plan to amount to a management plan within the meaning and for the purposes of subsection (1).
- The fact that sections 197 and 198 require public consultation before adopting or substantially amending a management plan reinforces the mandatory nature of subsection 196(3), as do the provisions of sections 199 and 200.
- The evident purpose of subsection 196(3) is to define the requirements for a plan to amount to a management plan within the meaning and for the purposes of Chapter 11 Part 1. This would not be achieved effectively if subsection 196(3) were construed as merely being aspirational.
- The Council submits that there may be circumstances in which a council is required by subsection 196(1) to have a management plan but a matter referred to in subsection 196(3) is non-existent, in which case a council cannot be expected to address that matter. The Council proffers as a hypothetical example community land having previously been specifically modified for the benefit of the community (thereby attracting the requirement for a management plan) but the modification being obsolete, in which case it may not be possible to formulate a performance target. The Council proffers as another example a case where a council has not identified a purpose for which it is holding the community land, in which case it may not be possible to identify the purpose for which the land is held or other matters referred to in subsection 196(3). There are several answers to this submission.
- First, under section 194 a council generally has power to revoke a classification of land as community land (subject to limited and irrelevant exceptions). If a council was not holding land for any purpose whatsoever, the council would be obliged to elect to revoke the classification of the land as community land (in which case section 196 would have no application) or to identify a purpose for which the council was holding the land.
- Secondly it is virtually inconceivable that a council could ever be holding community land and have no purpose whatsoever in respect of the land. Even if the land were held for some future use, however vague, there would still be a purpose for which the council was holding the land. There would still be a need for the council to maintain the land and this would give rise to objects, performance standards, etcetera. In the other example given by the Council, there must of necessity be some purpose for which the council continues to hold the land notwithstanding the obsolescence of the modification. It follows that the council must necessarily have some objective for the management of the land and in turn the council must be able to identify a performance target and measure its performance against that target and its objective, even if they relate to the maintenance of the land pending a decision about future use.
- Thirdly it is unlikely that the legislature contemplated any such extreme circumstances as are postulated by the Council and intended to make subsection 196(3) merely aspirational due to the theoretical possibility of their occurring.
- Fourthly, a preferable construction to accommodate the extreme circumstances postulated by the Council in which a matter referred to in subsection 196(3) is non-existent, if it were needed, would be to construe the requirements as not applying if they are inapplicable.
- The Council submits that it is theoretically possible that a council will not have any proposals for management of particular community land, even if it is holding land for a particular purpose and has particular objectives in respect of the land. Subsection 196(3) requires a council to identify proposals for the management of its community land, however vague or limited such proposals may be, and it is virtually inconceivable that a council could not do so. I reject this submission for similar reasons to the Council’s previous submission.
- The Council submits that a council’s obligation to state how it proposes to measure its performance is conditioned on the council proposing to measure its performance: if the council does not propose to measure its performance, nothing further is required under this head. I reject that contention. The council is required to formulate performance measures: it cannot avoid the requirement by not formulating any measures. The reason the provision uses the word “proposes” is because it is a reference to future conduct rather than past measurement.
- In Seaton v Mossman Municipal Council,[66] the New South Wales Court of Appeal considered subsection 36(3) of the Local Government Act 1993 (NSW) which contains requirements that a plan of management for community land identify objectives, performance targets and the manner in which the council proposes to assess its performance with respect to the plan's objectives and performance targets equivalent to those imposed by subsection 196(3) and in addition that it identify the means by which the council proposes to achieve the objectives and performance targets. The Court of Appeal held that the plan failed to comply with this last requirement and was invalid. Beazley JA (with whom Priestley JA relevantly agreed and Meagher JA agreed) said:
It follows from what I have said that the Plan of Management fails to comply with s 36(3)(c) in substantial respects. It was not within the first respondent's power to adopt a Plan of Management which does not comply with the Act. Because the non-compliance is substantial, I am of the opinion that the appellant is entitled to a declaration that the first respondent's resolution adopting the Plan of Management is invalid. [67]
- Although it was evidently not argued that the statutory provision was merely aspirational, this would have been inconsistent with the relief granted by the Court.
- On the proper construction of section 196, it imposes a requirement that to be a management plan within the meaning and for the purposes of section 196 a plan must contain performance targets and a statement how the Council proposes to measure its performance against its objectives and performance targets.
Objective v subjective requirement
- The next issue is whether on its proper construction section 196 objectively requires a community land management plan to contain performance targets and its performance measures or whether it merely requires a management plan to contain what the council regards as performance targets and performance measures.
- The Council does not plead in its Response that a management plan is only required to contain what a council regards as performance targets and performance measures. However, it makes this contention in its oral closing address and the plaintiffs do not object to it on the ground that it is not pleaded. I therefore address it on its merits.
- The text of subsection 196(3) supports the objective construction. There is no indication in the language of the subsection that it merely imposes a requirement that a management plan contain what the council regards as performance targets and performance measures. This is also supported by the context of the subsection within section 196 as a whole, which is directed to objective matters as opposed to the state of mind of the council.
- The evident purpose of subsection 196(3) also supports the objective construction. The evident purpose of section 196(3) is to define the requirements for a plan to amount to a management plan within the meaning and for the purposes of Chapter 11 Part 1. That evident purpose would be poorly served if the council were left to make its own assessment whether the plan contains the requisite matters.
- On its proper construction, subsection 196(3) imposes an objective requirement that a community land management plan contain performance targets and a statement how the Council proposes to measure its performance against its objectives and performance targets.
Statement of performance targets and measures
- The next issue is whether the Management Plan states performance targets and how the Council proposes to measure its performance against its objectives and performance targets within the meaning of section 196.
- Subsection
196(3)(d) requires a management plan to:
- state performance targets;
- state how the council proposes to measure its performance against its performance targets; and
- state how the council proposes to measure its performance against its objectives.
- The
Macquarie Dictionary definition of the noun “performance” relevantly
includes:
- execution or doing, as of work, acts, or feats.
...
- the act of performing[68]
and of the verb “perform” relevantly includes:
- to carry out; execute; do...
- to go through or execute in due form.
- to carry into effect; fulfil.
- to fulfil a command, promise, or undertaking.
- to execute or do something.[69]
The Macquarie Dictionary definition of the noun “target” relevantly includes:
- a goal to be reached.[70]
- The reference to “performance” is a reference to the council’s function of managing the community land the subject of the plan and includes the council’s achievement of the objectives set out in the plan. Section 196(3)(d) requires a council to set for itself “performance targets” being goals to be achieved in the performance of its management of the community land. This provision is one of the provisions in the Act requiring a council to be transparently accountable. This provision requires a council to be accountable for its management of community land by requiring it to fix in its management plan goals to be achieved in its management of the community land.
- The
Macquarie Dictionary defines the verb “measure” relevantly to
mean:
- to ascertain the extent, dimensions, quantity, capacity, etc., of, especially by comparison with a standard.
- to estimate the relative amount, value, etc., of, by comparison with some standard.
- to judge of or appraise by comparison with something else.[71]
In context, it is clear that section 196(3)(d) uses the verb “measure” in the third sense and does not necessarily require that the measurement be quantitative as opposed to qualitative.
- The reference to the council stating in the plan how it proposes to measure its performance against its performance targets necessitates an identification by the council of the methodology by which its performance against its targets is to be measured. The fact that the council is required to assess whether and to what extent it has achieved its performance targets in turn necessitates that measurable performance targets are set in the plan in the first place.
- Similarly, the reference to the council stating in the plan how it proposes to measure its performance against its objectives necessitates an identification by the council of the methodology by which the council will assess whether it is achieving its objectives set out in the plan.
The existence of performance targets
To provide a safe and attractive facility developed to a level appropriate to its location and purpose.
- Leaving aside whether this sets out “performance targets” within the meaning of section 196(3)(d), it is apposite to land which comprises a facility (such as a playground or arts centre): it is not apposite to a coastal reserve where the only objectives are conservation (the environmental objective) and access (the access objective). While the Management Plan contemplates that there might be incidental facilities associated with life-saving activities, this is a minor aspect and it certainly cannot be said that the coastal reserve itself comprises a facility. The adjectives “safe” and “attractive” are not apposite to the Council coastal land for the same reason and are not apposite to the objectives set out for the land in the Plan. The concept of “development” is not apposite to a coastal reserve where a major objective is conservation and to identify development as being “to a level appropriate to its location and purpose” is meaningless when applied to a coastal reserve with the objectives set out in the Plan.
- The Council has adopted 45 community land management plans, each of which contains identical language under the heading “Performance targets”. Some of these management plans refer to facilities. For example, the management plan for Henley Community Arts Centre refers to a building constructed and used as an arts centre and has the objective “to provide a facility for the use and enjoyment of the community where passive activities may be undertaken”. It has a performance target “to provide a safe and attractive facility developed and maintained in a manner appropriate to its location and purpose”. While these words even in the context of an Arts Centre are extremely vague for the purpose of identifying a performance target, they at least have some meaning when applied to an Arts Centre facility. It is apparent that the Council has adopted a standard form of words as a performance target regardless of whether they are apposite to the particular land in question and the particular objects of the management plan in question.
- The Council submits that it is not for the Court to determine whether the stated performance targets are appropriate or sufficiently detailed. The Council relies upon the following passage from the judgment of Sheahan J in Oshlack v Lismore City Council:[72]
The applicant specifically claims that Council did not correctly state the objectives and performance targets of the plan with respect to the "Sportsground and Park" category.
Again, this claim is based on the false premise that the Court can properly adjudicate on the correctness or otherwise of the objectives and performance targets stated in the plan. The Court may determine only whether or not the plan does indeed identify objectives and performance targets, not whether they are, in the Court's opinion, appropriate or sufficiently detailed. That discretion is vested by the legislature in Council, and can be revisited by the Court in only very limited circumstances.[73]
It may be accepted that it is a matter for a council to choose which of many alternative performance targets that might be chosen are to be adopted in its management plan and the level of detail with which the council identifies its performance targets. However, the council remains under a fundamental obligation to identify performance targets just as much as it is under an obligation to identify the land and objectives.
- The Council submits that it is possible that the Council coastal land might be used for a variety of purposes and in those circumstances it is not inappropriate or illogical to set a single “generic” performance target that would apply in all situations. However, for the reasons given above, the generic performance target is meaningless when applied to a coastal reserve regardless of the minor incidental uses that might be made of it.
- The Council has only paid lip service to the requirement to include performance targets in the Management Plan by including a form of words that is devoid of meaning in the context of the objectives of the Management Plan and the nature of the Council coastal land. The purported performance target is incapable of measurement in any sense (whether qualitative or quantitative). If the purported generic performance target amounts to a performance target within the meaning of section 196(3)(d), there was no point in the legislature requiring the inclusion of performance targets in management plans. The Council has failed to identify any performance targets and has failed to comply with the requirement imposed by section 196(3)(d) in this regard.
The existence of methods of measuring performance targets
Regular inspection and maintenance of facility.
- The Council concedes that maintenance is not a method of measurement. This leaves only “regular inspection”. In the context of the Council coastal land, this is also meaningless. Leaving aside the aspect that the adjective “regular” is so vague as to be illusory, the Management Plan does not state the purpose or criteria of inspection. The Council’s formulation is incapable of amounting to a statement how the Council proposes to measure its performance against its performance targets. Even if it were, albeit inappropriately for the reasons given above, the performance target is expressed in terms of development (development of a facility) as opposed to maintenance: regular inspection in relation to development is clearly inapposite.
- Again, the Council has used identical language for its performance measures in all of its 45 community land management plans. Again, where the management plan refers to a facility, a reference to inspection of the facility at least has some meaning, albeit it is extremely vague for the purpose of defining performance measures. Again, the Council has adopted a standard form of words as a performance measure regardless of whether they are apposite to the particular land, the particular objects or the particular performance targets of the management plan in question.
- The Council has only paid lip service to the requirement to include performance measures in the Management Plan. The form of words it has used is devoid of meaning in the context of the objectives of the Management Plan and the nature of the Council coastal land. The Council has failed to comply with the requirement to state how it proposes to measure its performance against its performance targets in the Management Plan.
The existence of methods of measuring achievement of objectives
- In the context of the environmental and access objectives specified in the Management Plan in relation to the Council coastal land, “regular inspection and maintenance of facility” is devoid of substantive meaning and incapable of amounting to a statement how the Council proposes to measure its performance against its objectives.
Consequences of non-compliance
Management Plan
- The next issue is whether the Management Plan is invalid or unlawful by reason of non-compliance with section 196(3)(d) of the Act.
- The plaintiffs contend that non-compliance with subsection 196(3) renders a purported community land management plan invalid. The Council contends that non-compliance is merely unlawful and does not render the Management Plan invalid.
- As a matter of construction of section 196, applying the approach identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,[74] it is an essential prerequisite to the existence of a community land management plan that it contains each of the elements set out in subsection 196(3). Otherwise a document prepared and adopted by a council simply does not amount to a community land management plan within the meaning of section 196.
- Although the decision of the New South Wales Court of Appeal in Seaton v Mossman Municipal Council[75] predated the High Court’s decision in Project Blue Sky Inc, the Court of Appeal treated the purported plan of management in that case as invalid.
Path Decisions
- The next issue is whether the Path Decisions are invalid or unlawful by reason of invalidity or unlawfulness of the Management Plan.
- The plaintiffs contend that the Council was required by section 199 of the Act to manage the Council coastal land in accordance with a management plan and the invalidity of the Management Plan renders the Path Decisions invalid or alternatively unlawful and the Council should be restrained from acting in accordance with them.
- The Council submits that in any event section 196(1)(c) does not require a council to have in place a community land management plan before land is to be modified or adapted for the benefit or enjoyment of the community: it is sufficient that a management plan is put in place after the council undertakes the modification or adaptation.
- Section 196(1)(c) of the Act provides:
196—Management plans
(1) A council must prepare and adopt a management plan or management plans for its community land if—
...
(c) the land has been, or is to be, specifically modified or adapted for the benefit or enjoyment of the community
- The Council submits that the reference to the land having been modified or adapted in the past indicates that a council can modify or adapt the land first (such as by erecting a piece of infrastructure) and then later prepare and adopt a management plan.
- I reject the Council’s submission. The reference to the land having been modified or adapted is explained by the transitional provision in subsection 196(7). Paragraph (a) provides that, if land was owned by or under the care, control and management of a council at the commencement of Chapter 11 Part 1 (1 January 2000), the council must have a management plan in place within five years thereafter. In that event, the land may well have been specifically modified or adapted for the benefit or enjoyment of the community in the past at the time of adoption of the management plan. Paragraph (b) provides that, if land is acquired or placed under a council’s care, control and management after the commencement of Chapter 11 Part 1, the council must have a management plan in place as soon as practicable after the requirement for the plan arises. Again, in that event the land may have been specially modified or adapted for the benefit or enjoyment of the community in the past. The construction advanced by the Council would deprive section 196 of most of its force. This construction is contrary to the evident purpose of section 196 and section 199.
- I return to the question whether the absence of a (valid) community land management plan renders the Path Decisions invalid or alternatively unlawful and the Council should be restrained from acting in accordance with them. If it be assumed that section 199 does not render the decisions void, nevertheless a decision by a council in the absence of a valid management plan when one is required is unlawful and in the circumstances there is no reason why an injunction should not be granted to restrain the Council from acting on the Path Decisions. No discretionary considerations against the grant of such relief have been identified by the Council and it is appropriate to grant that relief. While I am disposed to consider that section 199 renders void a decision by a council in the absence of a valid community land management plan when one is required, I decline to decide the question.
- The plaintiffs are entitled to an injunction restraining the Council from taking action based on any of the Path Decisions.
F. MANAGEMENT PLAN: CONSIDERATIONS & UNREASONABLENESS
- The plaintiffs contend that in adopting the Management Plan the Council failed to have regard to relevant considerations to which it was required to have regard (mandatory considerations), had regard to irrelevant considerations to which it was not permitted to have regard (impermissible considerations), proceeded under relevant misunderstandings and made a manifestly unreasonable decision.
- There
are six issues:
- Was the Council required to have regard to the alleged considerations, and did it fail to do so?
- Was the Council not permitted to have regard to the alleged considerations, and did it do so?
- Did the Council proceed under a misunderstanding, and does it vitiate the decision?
- Was the decision to adopt the Management Plan manifestly unreasonable, and does it vitiate the decision?
- Is the Management Plan consequentially invalid or unlawful?
- If so, are the Path Decisions consequentially invalid or unlawful?
Mandatory considerations
- The first issue is whether the Council was required to have regard to the alleged considerations, and if so whether it failed to do so.
- The plaintiffs contend that the Council was required to have regard to the following considerations and failed to do so:
(a) consistency with relevant official plans and policies about conservation, development and use of the land;
(b) environmental protection.
- The plaintiffs also contend in the alternative to their contention that the Council was required to comply with the Consultation Policy and the Management Plan was required to comply with section 196(3)(d) that the Council was required to have regard to their provisions and failed to do so.
- The Council contends that in making the decision to adopt the Management Plan it was only required to take into account a specific matter if on the proper construction of the legislation it was required to do so. The Attorney-General makes detailed submissions in support of this general proposition and the plaintiffs do not take issue with it. I proceed on this basis.
- The Council contends that, on the proper construction of the Act, it was not required to have regard to any of the matters identified by the plaintiffs and in any event it did so.
Official plans and policies
- Under subsection 196(3), a community land management plan must contain objectives and policies in respect of the community land.
- Subsections 196(5)(a) and (6) of the Act provide:
(5) A management plan—
(a) should (as far as practicable) be consistent with other relevant official plans and policies about conservation, development and use of the land; ...
Example—
The management plan should be consistent with strategic plans affecting development of land in the relevant area and with statutory or other official policies for protecting the State heritage, or for encouraging recreational or sporting activities, or for fostering tourism.
...
(6) In the event of an inconsistency between the provisions of an official plan or policy under another Act and the provisions of a management plan under this Act, the provisions of the official plan or policy prevail to the extent of the inconsistency.
A mandatory consideration?
- A consideration will only be a mandatory consideration if a provision of a statute so provides either expressly or by necessary implication.[76] Whether an implication is to be drawn from a statutory provision depends on its subject matter, scope and purpose.[77]
- Section 196(5)(a) proceeds on the premise that, before preparing and adopting a community land management plan, a council will first consider what other official plans and policies already apply in respect of the conservation, development and use of the land and will attempt “as far as practicable” to make the management plan consistent with those pre-existing plans and policies. On a consideration of the provisions of section 196 as a whole and its evident purpose, a council is required to consider whether a proposed management plan is consistent with other plans and policies falling within section 196(5)(a).
- It is true, as the Council points out, that subsection (6) enacts a rule that, if it transpires that there is inconsistency between a management plan and an official plan or policy under another statute, the latter prevails. However, this is plainly a rule of last resort rather than countenancing a council simply ignoring other relevant official plans and policies when adopting a management plan. In addition, this rule of last resort only applies when the other plan or policy is made under a different statute; whereas the example to section 196(5)(a) confirms that an official plan or policy might be made under the Act itself.
Relevant official plans and policies
- The plaintiffs contend that there are several official plans and policies about conservation, development and use of the land the subject of the Management Plan.
- On the proper construction of section 196(5)(a), an official plan or policy is a formal plan or policy made by the council or one made by an external entity that is binding on the council.
- The Southern and Northern Vegetation Management Plans are formal plans and policies made by the Council. They are about conservation, development and use of the land and apply specifically to the Council coastal land. They are relevant official plans and policies within the meaning of section 196(5)(a).
- The Environmental Sustainability Policy is a formal policy made by the Council. It is about conservation, development and use of the land and applies to all Council land including the Council coastal land. It is a relevant official policy within the meaning of section 196(5)(a).
- The Charles Sturt Development Plan is a formal plan made under the Development Act 1993 (SA) that is binding on the Council. Each of the plaintiffs and the Council point to provisions of the Development Plan that they submit support their case. However, these provisions are addressed to the criteria for the grant of development approval against development principles, which is a quite separate subject matter from the subject of the Management Plan. The provisions in the Development Plan identified by the parties are not capable of rationally affecting the Council’s decision whether to adopt the Management Plan.
- The Coast Protection Board’s Position Paper, Strategic Plan, Policy on Coast Protection and New Coastal Development and Policy Document May 2012 are not binding on the Council. The Department of Environment and Heritage’s Adelaide’s Living Beaches: a Strategy for 2005-2025 is not binding on the Council. These plans and policies are not official plans and policies within the meaning of section 196(5)(a).
- In conclusion, the Council was required to have regard to the Southern and Northern Vegetation Management Plans and the Environmental Sustainability Policy.
Information to which councillors have regard
- No direct evidence was given by the councillors as to the information or matters to which they had regard. This is not unusual when administrative decisions are challenged on judicial review. In these circumstances, a plaintiff’s case is necessarily a circumstantial one relying on inferences drawn having regard to all of the circumstances. No hard and fast rules can be laid down about when an inference will be drawn: every case will be different and will depend on the totality of the evidence and all relevant circumstances considered as a whole. It is to be remembered that the plaintiff bears the onus of proof.
- In Parramatta City Council v Hale,[78] Moffitt P said:
As in any case, civil or criminal, the state of mind of an individual (or of a body) can be proved by inference from what the person (or body) does or says or omits to do or say. The question whether a particular inference should be drawn as to a person’s or body’s state of mind should be resolved by a consideration of the whole of the relevant evidence...
...
Where a collegiate body exercises the power of the consent authority under s. 91 ... the question in a case under s. 123 is whether that collegiate body took each of the relevant s. 90(1) matters into consideration in passing that consent resolution. It is the state of mind of that body in passing that resolution which is in question.[79]
- Ordinarily it may be expected that the primary source of information relating to a particular matter to be decided at a council meeting will be contained in the agenda papers addressing that matter and any information provided to or discussed between the council members during the meeting. In the present case, in broad terms the plaintiffs’ case is that this is all that was known to or at least taken into account by the councillors at the April 2016 meeting at which the Management Plan was adopted.
- Whether it should be inferred that the councillors were not aware of or did not have regard to information or matters extraneous to the agenda papers and the discussion at the meeting will depend on all relevant circumstances including the degree of notoriety or obscurity of the information in question, the simplicity or complexity of the matter, the contentiousness of the matter, the content of the agenda papers and the content of discussions at the council meeting.
- There are some matters of which due to their nature and notoriety within the local area it can be confidently inferred that Council members will be aware (although whether they had regard to them raises a different question). There will be other matters of which it can be confidently inferred that Council members will not be aware unless their attention is drawn to it. Thus, in Marrickville Metro Shopping Centre Pty Limited v Marrickville Council,[80] the New South Wales Court of Appeal inferred that the councillors had local knowledge of the success of the only large (101 tenant) shopping centre in the Council area.[81] Conversely, in Currey v Sutherland Shire Council[82] and Franklins Limited v Penrith City Council[83] the New South Wales Court of Appeal inferred that the council members only had a general knowledge of the council’s planning instrument and not a knowledge of its detailed provisions such that they were reliant upon the detailed provisions being addressed by the agenda papers.
Regard by a collegiate body
- When a decision-maker is required to have regard to a matter, it is necessary that the decision-maker give genuine open-minded consideration to the matter and undertake an active intellectual process in considering its impact on the question to be decided.[84]
- A council in general meeting is a collective decision-making body. Whether its decisions are made by consensus or majority vote, they are made collectively with each elected member of the council sharing views and where applicable information with the other members. It is analogous in this respect to a board of directors or jury and different from a parliamentary election or census.
- The extent of discussion and consideration of a mandatory consideration necessary before a council in general meeting is able to make a decision on a proposed resolution having regard to mandatory considerations will obviously vary depending on the nature, importance, complexity and contentiousness of the subject matter.
- In relation to simple or uncontentious decisions where all relevant information is set out in the agenda papers, it may not be necessary for there to be any discussion before a resolution is passed. Conversely, in relation to important and potentially contentious decisions, in order for the council as a collegiate body to have regard to a matter, it will often be insufficient for individual councillors to give purely private consideration to the matter. In those cases it will often be necessary for shared consideration to be given so that the councillors are acting on the basis of common information and knowledge. In relation to important and potentially contentious decisions, it will often be necessary for there to be discussion and for the members to have the advantage of the exchange of views.
- In Parramatta City Council v Hale,[85] the council considered an application for development consent for construction of a sports stadium. The Council had received a report from the chief town planner and engineer recommending conditions but a motion was moved at the meeting to approve alternative conditions. The New South Wales Court of Appeal upheld the trial judge’s conclusion that the council failed to have regard to certain mandatory matters. Street CJ said:
[T]he reference in each to “the council” is to the council as a group; it is the council’s collective state of mind, as found by the court, which will be of critical significance....
The absence of a reasonable opportunity for a council to understand the significance of the decision about to be made in relation to the mandated matters, followed by a decision which in material respects leaves important aspects virtually at large, will go far towards establishing objectively that the council, as a group, did not take those mandated matters into consideration as required by law.[86]
Moffitt P said:
[The first part of this extract is set out at [522] above]
While it is the collegiate body which must take the matters into consideration and accordingly must be aware of such matters to enable it to do so, that body may rely on the inquiry, advice and recommendations of its officers....
...
In the end, however, whatever may be the difficulties of proof, it is a collegiate body, functioning as such in passing the consent resolution, which must take the matters in question into consideration. I leave to one side, as not applicable in the present case, decisions given by validly constituted sub-committees or by some body or person under proper delegated authority. Different considerations apply, however, where some unofficial body predetermines the matter outside the meeting... A decision or consideration given concerning it by a group, whether or not it be some kind of caucus or other informal body, but which does not act as the collegiate body and is extraneous to its meeting, whether or not constituted by a majority of the individuals of the collegiate body or by persons who control the majority, is in no sense a consideration by the collegiate body of the decision or matters relating to it which may later be given by the collegiate body.
On the question whether the collegiate body has taken into consideration the s. 90(1) matters, it is the collegiate mind in passing a resolution which is relevant. If, therefore, a matter were predetermined in this kind of way and a resolution were proposed which was of complexity and in a form which required terms to be understood before the relevant s. 90(1) matters could be adverted to and taken into consideration, and, if the resolution was then forced to a vote by some rapid procedure, a serious question would arise when the collegiate body considered the s. 90(1) matters relevant to the development as consented to.[87]
Vegetation Management Plans
- The Management Plan lists several plans and policies under the heading “Policies”, including “Vegetation Management Plans” generically. The 2016 management plan report listed only the Consultation Policy under the heading “Relevant Council policies” and made no reference at all to the Southern Vegetation Management Plan or the Northern Vegetation Management Plan. No other reference was made to those Plans in the agenda papers for the 26 April 2016 meeting at which the Management Plan was adopted. Dr Packer gave evidence, which was not challenged and which I accept, that the resolution to adopt the Management Plan was passed by the elected members without any discussion or debate.
- In the absence of reference to the Southern or Northern Vegetation Management Plans in the agenda papers, in order for the Council to have regard to them, it was necessary for there to be discussion at the meeting about their relevant provisions and their consistency or otherwise with the proposed Management Plan.
- The Council refers to evidence by Ms Cornish in her first affidavit that the councillors newly elected in November 2014 attended a Post-Election Training Workshop conducted by Norman Waterhouse Lawyers on 1 August 2015 (the August 2015 Workshop) and the slides presented at that workshop exhibited to the affidavit. However, Vegetation Management Plans were not addressed at that workshop.
- Ms Cornish also said in her first affidavit that, as part of the induction, elected members were referred to the Council’s website and particularly to the various Council plans, strategies and policies posted on the website. Ms Cornish did not say that the Vegetation Management Plans were posted on the website. If they were, it is one thing for Council members to be aware that there are multiple plans and policies in place and a quite different thing for them to have regard to specific provisions in one of those plans when deciding whether to adopt the proposed Management Plan.[88]
- The Council submits that the plaintiffs have not discharged the onus of proving that individual Council members were not aware of the Vegetation Management Plans or that they did not have regard to them in making the decision. The Council refers to Somerville v Dalby[89] and Marrickville Metro Shopping Centre Pty Limited v Marrickville Council.[90] These authorities only establish that inferences can be drawn as to the knowledge of Council members and in turn what they took into account when there is an adequate basis for the court to draw that inference. Conversely, a contrary inference can be drawn where there is no reference in the materials placed before the council members, there is no reason to consider that the council members would have esoteric knowledge and/or there is no discussion about the relevant matter at the council meeting.[91]
- Given the absence of any reference in the agenda papers to any relevant provisions in the Southern or Northern Vegetation Management Plans and the fact that they were obviously relevant to the decision to be made but there was no discussion about them at the meeting, I infer that the individual Council members who voted in favour of the resolution did not have regard to them in making the decision. In any event, in the circumstances it was necessary for the elected Council members as a whole to give consideration to the Plans by discussing them as opposed to merely giving them purely private attention.
- The Southern and Northern Vegetation Management Plans contain the aims and objectives set out at [75] above. It was incumbent on the Council to take into account those aims and objectives and policies contained in the Vegetation Management Plans when considering whether to adopt the Management Plan. For the reasons given above, the Council failed to do so.
- On the construction of the Management Plan that I have accepted at [329] above, environmental considerations were reflected in the environmental objective and the access objective was confined to providing access to the beach. The plaintiffs accept that on this construction any failure by the Council to have regard to the Vegetation Management Plans had no consequence.
- However, if the Management Plan permitted a coastal path proceeding longitudinally through the middle of the dunes notwithstanding adverse environmental consequences, the position would be quite different. The Council failed to take into account an important mandatory consideration in deciding to adopt the Management Plan. In those circumstances, it would be appropriate to grant a declaration that the adoption of the Management Plan was unlawful and/or restrain the Council from acting upon it at least in respect of the Path Decisions.
Environmental Sustainability Policy
- The plaintiffs contend that the Council was required to have regard to the Environmental Sustainability Policy insofar as it required the Council to protect and enhance the environment for future generations and to endeavour to undertake all activities in accordance with the principles of ecologically sustainable development.
- Towards the beginning of the Policy, a sentence appears upon which the plaintiffs rely. The sentence is part of the identification of the purpose of the Policy:
We are committed to protecting and enhancing the environment for future generations and will endeavour to undertake all activities in accordance with the principles of ecologically sustainable development...
- The Policy goes on to say that it spells out the Council’s key commitments and objectives for preserving and improving the environment. The passage relied on by the plaintiffs is merely introductory and is not itself a substantive policy to which the Council was required to have regard. The plaintiffs do not rely on any other parts of the Policy. The Policy is largely in the nature of an umbrella policy referring in turn to the One Planet and Living Green Environmental Plans. While those Plans would comprise relevant official plans and policies within the meaning of section 196(5)(a), the plaintiffs do not plead that the Council is required to have regard to them or rely on them in this respect.
- Accordingly, the plaintiffs have not established that the Council failed to have regard to a mandatory consideration by way of the Environmental Sustainability Policy.
Environment
- The plaintiffs contend that subsections 7(e) and 8(f) of the Act required the Council to have regard to environmental impacts when deciding whether to adopt the Management Plan.
- Section 6 identifies the principal role of a council. The chapeau and paragraphs (a) and (b) of section 6 provide:
6—Principal role of a council
A council is, under the system of local government established by this Act, established to provide for the government and management of its area at the local level and, in particular—
(a) to act as a representative, informed and responsible decision-maker in the interests of its community; and
(b) to provide and co-ordinate various public services and facilities and to develop its community and resources in a socially just and ecologically sustainable manner; ...
- Section 7 identifies the functions of a council. Subsection 7(e) provides:
7—Functions of a council
The functions of a council include—
...
(e) to manage, develop, protect, restore, enhance and conserve the environment in an ecologically sustainable manner, and to improve amenity; ...
- Section 8 identifies principles that must be observed by a council. Subsection 8(f) provides:
8—Principles to be observed by a council
A council must act to uphold and promote observance of the following principles in the performance of its roles and functions—
...
(f) seek to facilitate sustainable development and the protection of the environment and to ensure a proper balance within its community between economic, social, environmental and cultural considerations; ..
- Section 8 is expressed in mandatory terms. It evinces a clear legislative intention that, in performing its functions under sections 6 and 7, a council must have regard to the impact of its actions on the environment. When adopting a management plan for community land, especially coastal land, there will always be environmental considerations and section 8 requires a council to have regard to them.
- If any Council member had turned his or her mind to the environmental considerations as required by section 8, he or she would necessarily have raised them for discussion with his or her fellow Council members. I infer that the individual council members did not turn their minds to the environmental considerations. In any event, for the reasons given above it was not sufficient that individual council members turn their minds to a matter: it was necessary that collegiate consideration be given to the matter which required discussion. Given that there was no discussion at the meeting between the Council members about this or any other aspect of the proposed Management Plan, on this hypothesis the Council would have failed to have regard to a mandatory consideration.
- The Council refers to evidence by Ms Cornish in her first affidavit that the councillors elected in November 2014 attended the August 2015 Workshop and the slides presented at that workshop exhibited to the affidavit. One slide refers to the “Principal roles of the Council” (section 6), “Functions of the Council” (section 7) and “Principles to be observed” (section 8). One dot point next to Functions is “Environment” and one dot point next to Principles is “Sustainability (environmental, financial and development)”. Ms Cornish in her affidavit did not suggest that any more than this very high level of generality was provided. It is one thing to be told at a presentation after elections about a great number of topics at a high level of generality that principles to be observed by a council include sustainability which has an environmental dimension. It is a quite different thing to have regard to environmental considerations in the specific context of the proposed Management Plan months later. The fact that environmental considerations were not discussed at the Council meeting demonstrates that regard was not had to environmental considerations in the specific context of the Management Plan.[92]
- The Council refers to the statements in the 2016 management plan report extracted at [212] above. These statements do not address the question of a potential conflict between the environmental objective and the access objective which potential conflict necessarily arises on the construction of the Management Plan advanced by the Council and which it was necessary for the Council members to consider in order to have regard to environmental considerations.
- The Council refers to the 2015 path report and in particular the passages summarised and extracted at [150] above. There is no basis to infer that the Council members present at the April 2016 meeting recalled the detail or this detail of this report more than 12 months earlier and I infer that they did not. In any event, that report merely addressed potential locations for the path in a context in which no decision was being made at that point. It did not address the very different topic of the content of the draft Management Plan.
- The Council refers to environmental issues raised by members of the public as part of the public consultation in respect of the draft Management Plan. However, these addressed the path location and did not address the question of a potential conflict between the environmental objective and the access objective.
- The Council submits that the plaintiffs have not discharged the onus of proving that individual council members did not have regard to environmental considerations in making the decision. I reject that submission for similar reasons to those given above in respect of the Vegetation Management Plans.
- On the construction of the Management Plan that I have accepted at [329] above, environmental considerations were reflected in the environmental objective and the access objective was confined to providing access to the beach. The plaintiffs accept that on this construction any failure by the Council to have regard to environmental considerations had no consequence.
- However, if the Management Plan permitted a coastal path proceeding longitudinally through the middle of the dunes notwithstanding adverse environmental consequences, the position would be quite different. There was no discussion or debate whatsoever at the Council meeting concerning the objectives in the Management Plan or the interrelationship between them. The Council failed to take into account an important mandatory consideration in deciding to adopt the Management Plan. In those circumstances, it would be appropriate to grant a declaration that the adoption of the Management Plan was unlawful and/or restrain the Council from acting upon it at least in respect of the Path Decisions.
Compliance with Consultation Policy
- The plaintiffs contend in the alternative to their contention that the Council was required to comply with the Consultation Policy that the Council was required to have regard to it and failed to do so.
- I have held above that sections 50 and 197 required the Council objectively to comply with the Consultation Policy. The Council was not required to have regard to the Consultation Policy but rather was required to comply with it. If I had not reached this conclusion, I would not have held that the Council was required to have regard to the Consultation Policy as such an obligation is virtually meaningless.
Compliance with section 196(3)
- The plaintiffs contend, in the alternative to their contention that the Management Plan was required to comply with section 196(3)(d), that the Council was required to have regard to its requirements and failed to do so.
- I have held above that section 196 required a plan to comply amongst other requirements with section 196(3)(d) in order to comprise a community land management plan within the meaning of that section. The Council was not required to have regard to section 196(3)(d) but rather the plan was required to comply with its requirements to comprise a community land management plan. If I had not reached this conclusion, I would not have held that the Council was required to have regard to section 196(3)(d) as such an obligation is virtually meaningless.
Impermissible consideration
- The next issue is whether the Council was not permitted to have regard to the alleged consideration, and if so whether it did so.
- The plaintiffs contend that the Council had regard to a desire to limit the extent and duration of public debate concerning the proposed Management Plan and coastal path which was an impermissible consideration.
- On 27 November 2015 Mr Daniel sent an email to Ms Cornish suggesting that the proposed community land management plan be considered by the Council at its meeting on 14 December, public consultation commence on 11 January and a decision on adoption of the plan be made by the Council at a meeting in February 2016.
- Ms Cornish sent a responding email later that day which included the following passage:
If we put a report to cl in December, consult on the CLMP in late Jan/Feb and then put a report to council in March or so with the response from DPTI we are waiting on, we may create a political issue that will span 4-5 months. It may be preferable to address them all at the same time and over a shorter period.
and a further email later that day which included the following passage:
Also re community land mgt plan consultation. I think we’d be better off putting report up to council at the same time we put the response from dpti. Reason being is community lobbyists will have a long period over which to lobby if we split the two.
- Ms Cornish ultimately accepted in cross-examination that her purpose in making these suggestions was to avoid community groups having a longer period over which to marshal the troops or to lobby if the Council’s decisions on the management plan and the path alignment were split in time. I have made this finding in any event at [263] above.
- However, the evidence suggests that this strategy considered by Ms Cornish in these emails was not ultimately adopted by the Council administration. In any event, it related only to the timing of consideration of the adoption of the proposed management plan and not to its content. Moreover, the relevant decision to adopt the Management Plan was made by the elected Council members and not by the Council administration.
- I reject the plaintiffs’ case that the Council had regard to an impermissible consideration as alleged.
Incorrect understandings
- The next issue is whether the Council proceeded under a misunderstanding, and if so whether it vitiated the decision.
- The plaintiffs contend that in adopting the Management Plan the Council proceeded on the basis of incorrect understandings that:
(a) prior consultation in relation to the proposed coastal path diminished the level of consultation required in relation to the draft management plan;
(b) the draft management plan was a plan for the construction of a coastal path.
- The Council takes issue with these contentions and submits that in any event proceeding on an incorrect understanding is incapable of vitiating a decision and does not comprise a ground of judicial review. It is not necessary to consider this second contention by the Council, although merely establishing an incorrect understanding is incapable of vitiating a decision[93] and it would be necessary for the plaintiffs to establish that as a result of the misunderstanding the Council misconceived its role.[94]
- In relation to the first alleged misunderstanding, I have concluded that the Council acted in breach of its Consultation Policy and this vitiated its adoption of the Management Plan. If I had not reached this conclusion, it would not matter what understanding the Council had as to the effect of earlier consultation concerning the coastal path on consultation in relation to the draft management plan.
- In relation to the second alleged misunderstanding, there is no evidence to support a finding that the elected Council members had any such understanding.
- I reject the plaintiffs’ case that the Council proceeded on the basis of a relevant misunderstanding.
Decision manifestly unreasonable
- The next issue is whether the decision to adopt the Management Plan was manifestly unreasonable, and if so whether it vitiated the decision.
- One of the traditional grounds of judicial review is that the ultimate decision is so unreasonable or irrational that the exercise of the decision-making power must have miscarried in some unknown way. Such a decision is often termed “legally unreasonable” or “manifestly unreasonable”. When the decision-making power is conferred by statute, the obligation not to make a manifestly unreasonable decision when it arises usually arises as a matter of necessary implication.[95]
- In Minister for Immigration and Citizenship v Li,[96] French CJ said:
As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Official Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those ...were reflected in the powers of the English Court of Chancery to control public bodies "if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment."[97]
Hayne, Kiefel and Bell JJ said:
In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”...
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. ... Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[98]
Gageler J said:
Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law".[99]
- A party who contends that a decision is manifestly unreasonable obviously faces a high hurdle. As has been stressed many times, judicial review is not a merits review. If a party merely establishes that a decision is not one that would have been made by the Court in the position of the decision maker, that does not establish that the decision is manifestly unreasonable.
- The plaintiffs accept that, on the premise that on its proper construction the access objective in the Management Plan refers to access to the beach, there is nothing manifestly unreasonable about the decision to adopt the Management Plan. The plaintiffs contend however that, on the premise that the access objective encompasses a longitudinal path through the dunes, the decision to adopt the Management Plan was manifestly unreasonable.
- Recourse is had to manifest unreasonableness as a ground of review only when a plaintiff cannot or does not establish that a decision maker failed to have regard to a mandatory consideration or had regard to an impermissible consideration or made some other specific vitiating error, in which case establishing that the decision is manifestly unreasonable evidences that the decision maker must have made an undisclosed specific vitiating error in arriving at the decision.
- My conclusion that the Council failed to have regard to mandatory considerations not only renders moot the question whether the decision to adopt the Management Plan was manifestly unreasonable but also renders it intellectually difficult to assess on the artificial basis that assumes that there was no mandatory consideration error. I therefore do not determine this ground of review.
Conclusion
- On the construction of the Management Plan that I have accepted at [329] above, the plaintiffs accept that any failure by the Council to have regard to the Southern and Northern Vegetation Management Plans and environmental considerations had not consequence.
- However, if the Management Plan permitted a coastal path proceeding longitudinally through the middle of the dunes notwithstanding adverse environmental consequences, the position would be quite different. The Council failed to have regard to important mandatory considerations, namely the Southern and Northern Vegetation Management Plans and environmental considerations, in deciding to adopt the Management Plan. In those circumstances, it would be appropriate to grant a declaration that the adoption of the Management Plan was unlawful and/or restrain the Council from acting upon it at least in respect of the Path Decisions.
- The other grounds addressed under this head are not established and it is unnecessary to decide the manifest unreasonableness ground.
G. PATH DECISIONS: CONSIDERATIONS & UNREASONABLENESS
- The plaintiffs contend that in making the Path Decisions the Council failed to have regard to mandatory considerations, proceeded under relevant misunderstandings and made a manifestly unreasonable decision.
- There
are six issues:
- Was the Council required to have regard to the alleged considerations, and did it fail to do so?
- Did the Council proceed under a misunderstanding, and does it vitiate the decisions?
- Were the Path Decisions manifestly unreasonable, and does it vitiate them?
- Are the Path Decisions amenable to review on any of these grounds?
- Are the Path Decisions consequentially invalid or unlawful?
Mandatory considerations
- The first issue is whether the Council was required to have regard to the alleged considerations, and if so did it fail to do so.
- The plaintiffs contend that the Council was required to have regard to the following mandatory considerations and failed to do so:
(a) official plans and policies about conservation, development and use of the land;
(b) environmental protection.
- The plaintiffs also contend in the alternative to their contention that the Council was required to comply with the Management Plan and with the Consultation Policy that the Council was required to have regard to their provisions and failed to do so.
- The Council contends that, on the proper construction of the Act, it was not required to have regard to the matters identified by the plaintiffs and in any event it did so. The Council contends in particular that, in making the Path Decisions, it was exercising its general powers conferred by section 36 of the Act and in so doing there were no mandatory considerations. The Council also contends that the Path Decisions are not amenable to review on these grounds.
Information to which councillors have regard
- The Council submits, in the context of the question whether it had regard to environmental considerations if they were mandatory considerations, that it should be inferred that the Council members had regard to the Mader report. In the course of that submission, the Council submits that there is a general presumption that councillors have knowledge of matters on the Council’s files unless the contrary is proved. I reject this latter submission.
- In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[100] the Northern Land Council on behalf of the Mirarr Kundjey'mi clan and the Dadjbaku clan made claims in respect of separate parcels of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Peko-Wallsend had conducted exploration under an exploration licence over a much larger area (in the Alligator Rivers region), had located uranium ore in several locations and had applied for 530 mining leases. One of these was Ranger 68, which contained 5,500 tonnes of uranium ore with an estimated value of $280 million.
- The Aboriginal Land Commissioner conducted an investigation and made a report to the then Minister for Aboriginal Affairs, Senator Baume, under the Commonwealth Act. The Commissioner in his report recommended the grant of mining rights to the Mirarr Kundjey'mi clan in respect of certain land in the mistaken belief that only ten per cent of the Ranger 68 deposit lay within the area the subject of the recommendation; whereas in fact 100 per cent lay within that area.
- It was the role of the Minister under the Act to decide the claim and in so doing the Minister was required to have regard to detriment to any person, including Peko-Wallsend. After the Commissioner provided his report, Peko-Wallsend wrote to then Minister Senator Baume drawing his attention to the true position. There was then a change of government and Mr Holding became the new Minister for Aboriginal Affairs. The Department of Aboriginal Affairs provided to Minister Holding a summary of the Commissioner’s report but did not draw his attention to the correspondence from Peko-Wallsend to Senator Baume addressing the true position.
- The High Court held that the Minister was required to have regard to the correspondence from Peko-Wallsend and, being ignorant of it, failed to do so. The principal judgments were delivered by Mason J (with whom Gibbs CJ and Dawson J agreed) and Brennan J (with whom Deane J largely agreed). Gibbs CJ added comments including the following passages:
In many, if not in most, cases the Minister, in considering those matters, will not need to go beyond the report of the Commissioner. However, if there is in the possession of the Minister, at the time when he considers the matter, material which shows that the position has changed since the Commissioner made his report, or that for any reason the Commissioner's comments were based on an erroneous view of the facts, the Minister is bound to take that material into account. ...
Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
In the present case the correspondence in the possession of the Department revealed the material fact that Ranger 68 was within the land recommended to be granted, contrary to the view on which the Commissioner had acted. The circumstance that the correspondence had been addressed to a predecessor in office of the Minister was quite irrelevant, since the letters were not personal, but were among the departmental papers. The material in the possession of the Department must clearly be treated as being in the possession of the Minister. The summary prepared by the officers in the present case made no mention at all of the facts that the Commissioner was under a misapprehension, and that Ranger 68 was within the area recommended to be granted, and the conclusion of the Federal Court that the Minister did not consider these facts cannot be challenged. The Federal Court therefore rightly concluded that the Minister's power under s.11(1) of the Act was not validly exercised.[101]
- Gibbs CJ did not say that the Minister was presumed to have knowledge of matters on the department file. On the contrary, Gibbs CJ agreed with Mason J that the Minister had failed to have regard to that very matter and this vitiated the Minster’s decision. By referring to material in the possession of the Department being treated as being in possession of the Minister, Gibbs CJ was saying that it was available to the Minister and the Minister ought to have had regard to it but the Minister failed to do so. The critical distinction drawn by Gibbs CJ was between material available to the decision maker and material of which the decision-maker is aware and to which the decision maker has regard.
- In Schroders v Shoalhaven City Council,[102] one issue was whether the Council had formed its own view whether the proposed development was consistent with the objectives in the relevant development plan or whether, as Schroders contended, it had relied on an assumption that advice given by its counsel Mr Webster about consistency, referred to in a report by its consultant GSA, was correct. The New South Wales Court of Appeal considered that the GSA report made it plain that the issue of consistency was one for the council to decide. Ipp AJA (with whom Spigelman CJ and Sheller JA added:
The terms of Mr Webster's advice made it crystal clear that the decision was for the Council itself. There is no direct evidence that the councillors, individually, had read Mr Webster's advice. Nevertheless, material in the possession of the Council will, generally, be treated as being in the possession of the councillors: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 31 per Gibbs CJ.
- This passage has been cited and applied by New South Wales Court of Appeal in Notaras v Waverley Council[103] and Oshlack v Rous Water[104] but in neither does it appear to have been decisive (as in Schroders v Shoalhaven City Council itself). This passage has been applied at first instance by the New South Wales Land and Environment Court in various cases, three of which are cited by the Council.[105]
- Ipp AJA cited the passage from the judgment of Gibbs CJ extracted above as authority for the proposition about material being treated as being in the possession of the councillors. However, that passage addressed the availability of material and not the question whether the Minister was aware of it and indeed held that the Minister was unaware of and did not have regard to the material. The judgment of Gibbs CJ does not support a proposition that there is a presumption that a Minister is aware of all material on a Departmental file or that members of a council are aware of all material on the council administration file or in either case that they had regard to such material.
- The presumption asserted by the Council cannot be a presumption of law. At its highest, it could only be a presumption of fact: ie an inference that is usually drawn from standard circumstances subject to displacement by the specific circumstances of the case. As such, the proposition that such a presumption applies is not a proposition of law but merely a proposition about the inferences to be drawn on the evidence in the whole of the circumstances of a case. Considered from first principles, there is little utility in attempting to divide the process of drawing inferences into two stages: a first stage based on standard circumstances and a second stage based on specific circumstances of the case. In reality, the question whether an inference should be drawn depends on the whole of the circumstances of the case against the background that the onus of proof lies on the plaintiff to prove that the decision-maker was not aware of a mandatory consideration or did not take it into account.
- While I would not lightly depart from the approach of the New South Wales Court of Appeal, as it is not a question of law but only a question of inference to be drawn from facts and circumstances in a particular case, I prefer to approach the question as a single stage inquiry whether the inference should be drawn. As appears below, even if there were a presumption that the Council members were aware of and had regard to the Mader report, it would be rebutted by the circumstances.
Official plans and policies
A mandatory consideration?
- As observed above, a consideration will only be a mandatory consideration if a provision of a statute so provides either expressly or by necessary implication
- Unlike the Management Plan Decision, the Path Decisions were not made in the exercise of a specific function conferred or regulated by a specific provision of the Act. The Path Decisions were made in the exercise of the Council’s general functions of providing for the government and management of its area at the local level under section 6 and managing public areas vested in or occupied by it under section 7 of the Act.
- Subsection 196(5), which refers to official plans and policies, has no application to the making by councils of decisions of the nature of the Path Decisions. There is no basis to imply from subsection 196(5) an obligation on a council to have regard to official plans and policies when making general decisions. The plaintiffs do not identify any other provision of the Act capable of giving rise to an implied obligation on a council to have regard to official plans and policies.
- I reject the plaintiffs’ case that the Council was required to have regard to official plans and policies when making the Path Decisions.
Environment
- The plaintiffs contend that subsections 7(e) and 8(f) of the Act required the Council to have regard to environmental impacts when making the Path Decisions.
A mandatory consideration?
- I have concluded above that Section 8 evinces a clear legislative intention that, in performing its functions under sections 6 and 7, a council must have regard to the impact of its actions on the environment. When deciding whether to construct a coastal path through the dunes on coastal community land, there will always be environmental considerations and section 8 requires a council to have regard to them when making such a decision.
2016 Path Decision
- The Council being a collective decision-making body for the reasons given at [526] to [530] above, in order for it to have regard to environmental considerations, it was necessary for there to be discussion between or with the councillors about the potential location of the proposed path, the impact thereof on the environment and in particular on the dunes, and the impact of this consideration on the decision to be made. However, in making the 2016 Path Decision, there was no discussion at the Council meeting before the resolution was put to the vote and passed.
- By making the 2016 Path Decision, the Council authorised the Council administration to place the path through the middle of the dunes in accordance with Option 2B. While the resolution anticipated that the Council administration would take into account environmental considerations, nevertheless the resolution gave to the Council administration plenary authority as to the location of the path.
- There was no discussion at all at the Council meeting about the Path Decision or environmental considerations impacting on it. If the Council administration were to be given plenary authority as to the location of the path such that in their discretion it could be located through the middle of the dunes in accordance with Option 2B, in order to have regard to environmental considerations as it was required to do, it was necessary for the Council members to turn their minds to this issue and make a deliberate decision to this effect. If any Council member had turned his or her mind to the environmental considerations as required by section 8, he or she would necessarily have raised them for discussion with his or her fellow council members. I infer that the individual council members did not turn their minds to the environmental considerations because there was no discussion at the meeting before the resolution was passed.
- The Council members had in the agenda papers for the meeting the 2016 path report, which is summarised at [160] to [162] above. The principal focus of that report was on State government funding and the fact that the State government would only fund Option 2 and on the privacy interests of residents. Very little was said in the report about environmental considerations. There was a statement that maximising residents’ privacy needed to be considered within the context of the dunes’ biodiversity; a statement that a fine balance between residential amenity and environmental protection would need to be taken in preparing detailed design; and the recommended resolution included that further consideration be given to minimising environmental impacts on sensitive dune vegetation (noting the path was primarily grass covered with some sections of dune planting). The report simply did not address the nature or extent of the environmental impact of the path proceeding through the dunes if the Council administration decided on that location. The report was expressed in low key terms and not such as to direct the attention of the Council members to the need to have regard to environmental considerations in deciding whether to adopt the recommended resolutions.
- In any event, for the reasons given above it was not sufficient that individual Council members turn their minds to the matter: it was necessary that collegiate consideration be given to the matter which required discussion. Given that there was no discussion at the meeting between the Council members about this or any other aspect of the Path Decision, the Council failed to have regard to a mandatory consideration.
- The Council refers to evidence by Ms Cornish in her first affidavit that the councillors elected in November 2014 attended the August 2015 Workshop and the slides presented at that workshop exhibited to the affidavit, one of which related to “Principles to be observed” (section 8). For the reasons given at [550] above, the content of that workshop does not detract from my conclusion that regard was not had to environmental considerations.
- The Council submits that the Council members were aware of environmental implications of the path as a result of the meeting on 23 February 2015 at which the 2015 path report was received. The Council refers to the passages summarised and extracted at [148] to [150] above. These passages were in a very different context and at a very different time in and at which the Council had not yet made any decision between alternative options. They included a statement that any coast path alignment within the dunes system needed to be carefully considered with amongst others community stakeholders to ensure the stability of the dunes system and its ecology was not substantially compromised.
- If any Council member present at the April 2016 meeting recalled the detail of the 2015 path report more than 12 months earlier, that Council member would necessarily have raised for discussion what consultation there had been in the interim with community stakeholders about the effect of a path through the dunes and what in fact would be the effect on the environment of such a path. The fact that there was no discussion on this topic or any other topic before the resolution was passed indicates that the Council members did not bring the 2015 path report or this aspect of it to mind when considering the resolution in April 2016.
- The Council does not make a similar submission in relation to the September 2014 meeting. An assessment concerning environmental impact in terms of vegetation had been provided to the previous Council in September 2014 in the form of the 2014 Planning Study. Only seven Council members who were present when the 2016 Path Decision was made had attended the September 2014 meeting. More importantly, if the Council members present at the 2016 Path Decision had adverted to the 2014 Planning Study, they would necessarily have raised it for discussion.
- The Council points to the submissions made earlier at the meeting in relation to the proposed Management Plan during which reference was made to environmental considerations. However, there was no discussion between the Council members after or about these submissions or indeed any discussion at all before the Council made the path decision (or the Management Plan decision).
- The Council submits that the 2016 path report effectively proposed that consideration of biodiversity be addressed at the detailed design stage. It points to the statement extracted at [162] above and the third dot point of resolution 3 extracted at [163] above that further consideration be given during the preparation of detailed design to minimising environmental effects on sensitive dune vegetation. The Council submits that it should be inferred that the Council gave consideration to environmental impact by providing that it be addressed at detailed design.
- The Council’s 2017 Path Decision overtook the 2016 Path Decision and in many ways renders it academic to consider whether the Council failed to have regard to environmental considerations in April 2016 given subsequent events. However, the Council maintains that it made a final decision in April 2016 and did not intend by its resolutions to reconsider the matter in future and it is necessary to proceed on the assumption that this was the proper construction of the 2016 Path Decision.
- By the Council’s resolution, the Council administration was given plenary authority to determine the location of the path. While it was to give consideration to minimising environmental impacts on sensitive dune vegetation, it was equally to give consideration to maximising privacy of residents and no consideration was given by the Council members to how these two conflicting matters might be reconciled or what was meant by “minimising environmental impacts on sensitive dune vegetation”. As events transpired, the Council itself rather than the Council administration made the ultimate decision in January 2017 and for the reasons given below in so doing it failed to have regard to environmental considerations. In the circumstances, the Council failed in April 2016 to have regard to environmental considerations.
- The Council failed to have regard to the mandatory consideration of environmental impact.
2017 Path Decision
- In respect of the 2017 Path Decision, the Council decided that the path was to be located in the middle of the Swale between Terminus Street and Hallam Terrace. The Council members were provided with the 2017 path report.
- Under the heading “Other considerations” towards the end of the report, the report said that staff had had regard to a number of strategic documents relating to the coast in finalising the path alignment, including Vegetation Management Plans. In relation to the strategic documents generally, the report said:
Without summarising each document in detail, Council should note that they recognise a variety of objectives and principles that seek to achieve a range of outcomes. Clearly, protection of the natural coastal environment is an important consideration. Construction of a coastal pathway is not necessarily inconsistent with that objective and there is evidence that controlling public access through coastal dune environments is an important method of controlling erosion, minimising destruction of vegetation, avoiding the formation of informal tracks and pathways, controlling the spread of weeds and promoting better education and awareness of this unique environment.
- Later the report said:
It has also been suggested that the following matters are relevant to the path alignment decision:
...
- Adverse ecological consequences
All of these matters have been considered at various stages throughout the development of the path alignment.
...
In terms of ecological consequences, further analysis of native vegetation has been undertaken via site surveys and mapping. When important native plants are encountered, the contractor will be required to re-align the relevant section of pathway, with any such changes being dealt with by delegation as per recommendation 7. The contractor will also be required to take preventative measures to avoid damage during construction, and to submit a detailed environmental management plan to the Project Superintendent for approval prior to the commencement of construction. Stage 2 of the project, which is anticipated to occur in the 17/18 FY (second half of 2017) also includes a substantial amount of dune rehabilitation work, including weed removal, and substantial revegetation using native species of local provenance.
- The Council members were not provided with any information about the nature and extent of the short and long term effects of construction on the vegetation or the natural landscape. They were not provided with any information about the nature and extent of the long term effect of the path on the vegetation, fauna or the natural landscape.
- There is a stark contrast between the lack of information provided to the Council members at the time of the 2017 Path Decision (and the 2016 Path Decision) and the detailed information provided to the Council in 2013 and 2014. The Council members in 2016 and 2017 were not provided with the 2014 Planning Study containing the passages extracted at [125] above about the effect of construction of a path through the dunes on vegetation; the Southern and Northern Vegetation Management Plans containing relevant and important environmental aims and objectives; or the October 2016 Mader report showing that construction of the proposed path between Terminus Street and Hallam Terrace would result in the destruction of approximately 700-800 plants.
- The Council members were not provided with even elementary information on the basis of which they could make an informed decision on the competing considerations involving the effect on beachfront property owners of construction of the path on the grassed strip compared to the environmental effect of construction of the path in the middle of the Swale. This is not to say that, if they had been provided with the requisite information, they could not reasonably have chosen the alignment embodied in the 2017 Path Decision (this is addressed below). However, in the absence of such information and discussion between the members of the Council concerning it, the Council was not in a position to give genuine consideration to environmental impacts or undertake an active intellectual process in considering the effect upon the question to be decided of the path location.
- The Council submits that the plaintiffs have not discharged the onus of proving that individual Council members did not take environmental considerations into account in making the decision. However, given the absence of any reference in the agenda papers to the matters summarised above, I infer that the individual Council members who voted in favour of the resolution did not have regard to environmental considerations in making the decision. In any event, for the reasons given above, in the circumstances it was necessary for the elected Council members as a whole to have regard to environmental considerations by discussing them as opposed to merely giving them private and secret attention.
- The Council failed to have regard to the mandatory consideration of environmental effects.
Accordance with Management Plan
- The plaintiffs contend in the alternative to their contention that the Council was required to act in accordance with the Management Plan that the Council was required to have regard to it when making the Path Decisions and failed to do so.
- I have held above that section 199 required the Council objectively to act in accordance with the Management Plan. If I had not reached this conclusion, I would have held that the Council was required to have regard to the Management Plan as a mandatory consideration. Section 196 requires a council to prepare and adopt a management plan for community land and section 199 requires a council to manage the community land in accordance with the management plan. At the very least, in managing community land a council is required to have regard to its management plan for that community land.
- In Khuu & Lee Pty Ltd v Corporation of the City of Adelaide,[106] the Full Court held that the Adelaide City Council was not required to afford procedural fairness before deciding not to renew a Central Market stall lease and the decision was not amenable to judicial review. Vanstone J (with whom Sulan and Peek JJ agreed) distinguished the case from a situation in which the Council might have granted a lease over a stall, in which case it would have been subject to the controls effected by section 202 of the Act. Vanstone J said:
Section 202 contains restrictions on powers otherwise held, including requirements that a council comply with its own public consultation policy. Reading the whole of the section in its context (and with the relevant regulations) makes clear that the section is concerned, as its title suggests, with regulating the way in which community land is to be alienated. It is not concerned with a decision of a council not to re-let community land. Therefore s 202 can have no application to a refusal to grant a licence and the public element which might have been provided by s 202(2) cannot be relied upon.[107]
- In the present case, the relevant provision is section 199. On its proper construction, if (contrary to my conclusion) it does not require a council to manage land in accordance with an applicable management plan, it requires a council to have regard to the provisions of an applicable management plan when making a management decision.
2016 Path Decision
- For the purpose of considering the 2016 Path Decision, the Council members were provided by Council administration with the 2016 path report. That report listed in the pro forma section “Community Land Management Plans” under the heading “Relevant Council policies”. It made no specific reference to the Management Plan. It did not analyse whether construction of the path was in accordance with the environmental objective or the access objective or whether one was to be preferred over the other or otherwise was in accordance with the Management Plan.
- There was no discussion between the Council members concerning the matter before making the 2016 Path Decision. In making that decision, on the premise that the Council was not required objectively to act in accordance with the Management Plan, the Council failed to have regard to a mandatory consideration, namely whether the decision was in accordance with the Management Plan.
- Given the absence of analysis in the agenda papers to compliance with the objectives or other contents of the Management Plan relevant to the path decision to be made and the absence of any discussion between or with Council members at the meeting, I find that the individual Council members did not have regard to the content and in particular the objectives of the Management Plan when making the 2016 Path Decision. I reject the Council’s submission that the fact that the Council had just adopted the Management Plan before considering the path decision gives rise to an inference that the individual Council members had regard to the contents of the Management Plan when making that decision. In any event, for the reasons given above, in the circumstances it was necessary for there to be discussion about the impact of the content of the Management Plan on the path decision.
2017 Path Decision
- For the purpose of considering the 2017 Path Decision, the Council members were provided by Council administration with the 2017 path report. That report also made no mention of the Management Plan other than listing community land management plans as relevant policies in the pro forma section. For the same reasons as in respect of the 2016 decision, on the premise that the Council was not required objectively to act in accordance with the Management Plan, the Council failed to have regard to a mandatory consideration, namely whether the decision was in accordance with the Management Plan.
Compliance with Consultation Policy
- The plaintiffs contend in the alternative to their contention that the Council was required to comply with the Consultation Policy that the Council was required to have regard to it and failed to do so.
- I have held above that section 50 required the Council objectively to comply with the Consultation Policy. The Council was not required to have regard to the Consultation Policy but rather was required to comply with it. If I had not reached this conclusion, I would not have held that the Council was required to have regard to the Consultation Policy as such an obligation is virtually meaningless.
Amenability to review
- The Council contends that, in making the Path Decisions, it was acting pursuant to its general power conferred by subsection 36(1) of the Act. That subsection provides:
36—General powers and capacities
(1) council—
(a) the legal capacity of a natural person and, in particular—
(i) enter into any kind of contract or arrangement; and
(ii) may sue and be sued; and
(iii) may act in conjunction with another council or authority, or a person; and
(b) the other powers and capacities conferred by or under this or another Act; and
(c) has the power to do anything necessary, expedient or incidental to performing or discharging its functions or duties or to achieving its objectives.
- The Council contends that under section 36(1)(a) it has the powers of a natural person and it is not constrained by section 36 to have regard to any consideration (nor is it prohibited from having regard to any consideration or making a manifestly unreasonable decision). As a result, the Path Decisions are not amenable to review on the ground of failure to have regard to a mandatory consideration (or having regard to an impermissible consideration or making a manifestly unreasonable decision).
- Section 36 is addressed to powers rather than functions, the latter being addressed instead by sections 6 and 7. Section 36(1)(c) confers on a council power to do anything necessary, expedient or incidental to performing its functions under sections 6 and 7 or achieving its objectives under section 8. The question that determines amenability to review is nature and source of the function performed as opposed to the power exercised and whether in exercising the function performed the Council is required to have regard to mandatory considerations.
- The decision of the Full Court in Khuu & Lee Pty Ltd v Corporation of the City of Adelaide[108] authoritatively establishes that, when a council makes a decision in the exercise of the power conferred by section 36, in the absence of another statutory provision imposing a requirement to afford procedural fairness or any other requirement capable of giving rise to judicial review, it is not amenable to judicial review. In that case, apart from section 202 which the Full Court held had no application, it was not suggested by the plaintiff that there was any other statutory provision imposing a requirement on the Adelaide City Council to afford procedural fairness before deciding not to renew the lease in question.
- In the present case, I have concluded that section 8 does impose a requirement on the Council to have regard to environmental considerations. It follows that the reason why the Full Court held that the decision of the Adelaide City Council was not amenable to review in Khuu & Lee Pty Ltd does not dictate the same conclusion in the present case in relation to the obligation of the Council to have regard to environmental considerations.
Incorrect understandings
- The next issue is whether the Council proceeded under a misunderstanding, and if so whether it vitiates the decisions.
- The plaintiffs contend that in making the 2016 Path Decision the Council proceeded on the basis of an incorrect understanding that the 2016 Path Decision had unqualified support from the relevant State Minister.
- The plaintiffs contend that in making the 2017 Path Decisions the Council proceeded on the basis of an incorrect understanding that the Purported Dedications were valid.
- The Council takes issue with these contentions and submits that in any event proceeding on an incorrect understanding is incapable of vitiating a decision and does not comprise a ground of judicial review. It is not necessary to consider this second contention by the Council.
- In relation to the first alleged misunderstanding, the 2016 path report referred to and attached as appendices the correspondence between the Council and the Minister for Planning and the Department of Planning. The report summarised the effect of the responses as being that the State government would not fund, and in that sense support, Option 1. There was no inaccuracy in this summary. Further this summary did not convey to the Council members that the 2016 Path Decision had the unqualified support of the Minister and indeed the response from the Department dated 22 February 2016 made it plain that it was the responsibility of the Council, and not a matter for the Minister or the Department, to choose between Option 2A and Option 2B.
- In relation to the second alleged misunderstanding, the 2017 path report contained a brief reference to the Council having “recently been advised the relevant parcels of Crown land dedicated for ‘Natural Features Preservation’ and ‘Coast Protection Purposes’ have been re-dedicated to add a specific reference to ‘Coast Path’ in both instances”. There was no discussion between the elected members about this aspect. I am not satisfied on the balance of probabilities that the Council members considered that this was a material consideration.
- I reject the plaintiffs’ case that the Council proceeded on the basis of a relevant misunderstanding.
Decision manifestly unreasonable
- The next issue is whether the Path Decisions were manifestly unreasonable, and if so whether it vitiates them.
- The plaintiffs contend that the 2016 and 2017 Path Decisions were each manifestly unreasonable.
- My conclusion that the Council failed to have regard to mandatory considerations renders moot the question whether the Path Decisions were manifestly unreasonable and renders it intellectually difficult to assess on the hypothetical and artificial basis that assumes that there was no relevant consideration error. I therefore do not determine this ground of review.
Conclusion
- It is appropriate to grant a declaration that the Path Decisions are unlawful and/or restrain the Council from acting on them because the Council failed to have regard to mandatory considerations.
- The other grounds addressed under this head are not established and it is unnecessary to decide the manifest unreasonableness ground.
H. DEDICATIONS
- The Council has the care, control and management (a custodian) of the public coastal land owned by the State. Part of that land is the subject of the Dedications summarised at [41] and [42] above.
- The plaintiffs contend that the path that the Council decided by the Path Decisions to construct involves a use of the land the subject of the Dedications for a purpose other than (and in the alternative, if the test is inconsistency, the use is inconsistent with) the dedicated purpose under each Dedication and the Path Decisions are thereby invalid or alternatively unlawful.
- The plaintiffs contend that the path the subject of the 2016 Path Decision and the path the subject of the 2017 Path Decision was to pass through the Coast Protection Dedication Land and was for a purpose other than (or inconsistent with) coastal protection and was to pass through the Natural Features Dedication Land and was for a purpose other than (or inconsistent with) preservation of natural features.
- There
are four issues:
- Does Part 3 Division 2 of the Crown Land Act require the Crown or a custodian of dedicated land to use the land in accordance with the dedicated purpose or is it merely aspirational?
- Is any requirement to act in accordance with a dedication breached by acting otherwise than in furtherance of the dedication purpose or by acting inconsistently with the dedication purpose?
- Is construction of the coastal path pursuant to the Path Decisions contrary to the requirement to act in accordance with the Dedications?
- Are the Path Decisions consequentially invalid or unlawful?
Imposition of requirement as to use
- The first issue is whether Part 3 Division 2 of the Crown Land Act required the Crown or a custodian of dedicated land to use the land in accordance with the dedicated purpose (regardless of what is the test for non-accordance) or whether the dedication is merely aspirational.
- Part 3 Division 2 as at the time of the Path Decisions in April 2016 and January 2017 provided:
Division 2—Dedication
18—Dedicated land
(1) The Minister may, by instrument in writing, dedicate unalienated Crown land for a purpose specified in the instrument.
(2) The Minister must not dedicate land subject to a licence unless the Minister is satisfied that the dedication will not substantially detract from the licensee's use or occupation of the land.
(3) If dedicated land is to be placed under the care, control and management of a person or body other than the Minister, the Minister must consult with that person or body before effecting the dedication.
(4) The Minister may, by instrument in writing, alter the purpose for which land has been dedicated under this section.
(5) The Minister must, before altering the purpose for which land has been dedicated under this section, consult with any person who has an interest in, or rights in relation to, the land.
(6) The Minister must not grant an interest or rights in relation to dedicated land if the grant of the interest or rights would have the effect of preventing the land being used for the purpose for which it is dedicated.
19—Revocation of dedication
(1) Subject to this section, the Minister may, by instrument in writing, revoke (in whole or in part) a dedication of land, whether the land has been dedicated under this or any other Act.
(2) If land subject to a dedication under this or any other Act has been granted in fee simple, the dedication can only be revoked by proclamation made by the Governor.
(3) If land has been dedicated under another Act, the dedication must not be revoked under this section unless there is no other legislative power providing for revocation.
(4) If, under this section, a dedication of land is revoked in whole or in part, the land, or that part of the land, reverts to the status of unalienated Crown land.
20—Care, control and management of dedicated land
(1) The Minister may, by instrument in writing, place dedicated land under the care, control and management of a person or body specified in the instrument subject to such conditions as the Minister specifies in the instrument.
(2) The Minister may, by instrument in writing—
(a) vary or revoke the conditions on which dedicated land was placed under the care, control and management of a person or body; or
(b) withdraw the land from the care, control and management of that person or body.
(3) The Minister must not exercise powers under this section in relation to land that is under the care, control and management of a person or body except after consultation (where practicable) with the person or body.
21—Notice of instruments
The Minister must cause notice of any instrument under this Division to be published in the Gazette as soon as practicable after it is made.
22—Lease of dedicated land
(1) A lease granted by a person other than the Minister in relation to dedicated land is of no effect unless the Minister has consented, in writing, to the grant of the lease.
(2) The consent of the Minister under this section may be subject to such conditions as the Minister thinks fit and specifies in the written consent.
(3) The Minister may refuse consent to the grant of a lease if the grant of the lease—
(a) would detract from any existing public use and enjoyment of the land; or
(b) would prevent the land being used for the purpose for which it was dedicated; or
(c) would otherwise, in the opinion of the Minister, be improper or undesirable.
- Subsection 3(1) defined “dedicated land” and “custodian” as follows:
custodian means a person or body under whose care, control and management dedicated land has been placed;
dedicated land means land that has been dedicated for a purpose in accordance with section 18;
Antecedents of land dedication
- The parties refer to a greater or lesser extent to the antecedents of the land dedication provisions in the Crown Land Act to support their respective constructions of Part 3 Division 2.
Common law highways dedications
- At common law, the owner of land could dedicate it for public use as a highway.[109] Upon and after dedication, members of the public had an enforceable right to use the land as a highway.[110]
- The act of dedication could be an express and formal act by which the owner dedicated the land to use as a highway.[111] Alternatively, it could be inferred from use of land by the public as a highway that there had historically been an act of dedication.[112]
- In the case of private land owners, dedication only took effect when there was acceptance of the right by the public, usually but not necessarily by use.[113]
- The Crown could equally dedicate its land to use as a highway by the public in which case the same rights were created as in the case of dedication by a private landowner.[114] There is doubt whether, in the case of dedication by the Crown, it was necessary for there to be acceptance of the right by the public before the dedication took effect.[115]
- The common law does not recognise dedication of land by a private owner or the Crown for any other purpose than a highway.[116] For example, the civil law recognises a dedication by a landowner for public use for recreation or education known as a jus spatiandi vel manendi, but the common law does not recognise any such right.[117]
Waste Lands Alienation Act 1872 (SA)
- In 1872, the Waste Lands Alienation Act 1872 (SA) (the 1872 Act) created a statutory form of dedication based on the common law concept but not limited to highways. The 1872 Act was modelled very closely on the 1861 New South Wales Act referred to below.
- Section 2 defined “waste lands” (the equivalent of what are now called Crown lands) to be all lands vested in the Queen [in right of the colony of South Australia] in South Australia that had not been granted or contracted to be granted in fee simple and had not been dedicated to a lawful purpose.
- The
Act and its successors proceeded on the basis that all South Australian land was
owned by the Crown (a basis that did not change
until it was modified by the
High Court’s recognition of traditional indigenous rights in Mabo v
Queensland (No 2)[118]).
The Act provided effectively that the Crown could elect to do one of three
things with the land:
- formally grant the fee simple in or a lease of the land to private citizens;
- formally dedicate or reserve the land for a specified public use; or
- retain the land and use it for any governmental purpose from time to time or leave it unused.
- Section 5 provided:
The Governor, in the name and on behalf of her Majesty, may alienate, grant, and convey in fee simple, or may reserve and dedicate to the public use any waste lands, under and subject to the provisions of the Act, and the regulations to be made under the authority of this Act; and all grants, conveyances, and alienations, sealed with the seal of the said Province, may be made in such form as to the Governor in Council shall seem expedient.
- By providing that the power to alienate, grant, etcetera land was to be “under and subject to the provisions of the Act” and grants etcetera were to be in a form determined by the Governor in Council, section 5 implicitly provided that the alienation, grant, etcetera of land was to be effected under the Act and not otherwise. The fact that the Act operated as a code in this respect was reinforced by the comprehensive provisions for grant and dedication contained in the Act. In any event, as the common law did not recognise dedication of land other than for highways, the only manner in which Crown land could be dedicated to any other public purpose was pursuant to the Act.
- Section 6 empowered the Governor to reserve and dedicate for the public interest waste lands (now called Crown lands) for any public purpose. Section 6 provided:
The Governor in Council may, by notice in the Gazette, reserve and dedicate, in such manner as may seem best for the public interests, any waste lands for the preservation of water supply, or for any public roads or other internal communications, whether by land or water, or for any quay or landing place, or public reservoir, aqueduct or watercourse or for the purposes of any hospital or asylum, or for any public market or slaughter-house, or for the purposes of any institutions for public instruction and amusement, or for any public buildings, not being intended for ecclesiastical purposes, or for the interment of the dead, or as places for the recreation and amusement of the inhabitants of any city, town, or township, or other purpose of public safety, convenience, health, or enjoyment, or for any other public purpose, or for the purpose of building or empowering any Common or District schools, not being denominational schools; and upon any such notice being published in the Gazette, such lands shall become and be reserved and dedicated accordingly, and may at any time thereafter be granted for such purposes in fee simple: Provided that the delineation in the public maps of the said Province of any public roads shall be deemed a sufficient dedication thereof, anything hereinbefore contained to the contrary notwithstanding.
- Section 9 empowered the Governor in Council by proclamation in the Gazette to reserve waste lands for use of aboriginal inhabitants, for military defence, as forest or mineral reserves or for a railway or railway station.
- Thus reservation applied to the specific purposes identified in section 9 whereas the composite concept of reservation and dedication applied to all other public purposes under section 5.
- By adopting the established (albeit limited) common law concept of dedication, and requiring the solemnity of a formal notice in the Gazette, it was the evident intention of the Act that dedication had a specific legal consequence, including to render unlawful acts that prevented use of the dedicated land for the dedicated purpose.
- Sections 12 to 44 governed the grant of the fee simple in or leases of waste lands. It is clear from these comprehensive provisions that the Act covered the field of the manner in which the Crown could grant the fee simple in or leases of waste lands.
Subsequent SA Crown Lands Legislation
- The Crown Lands Consolidation Act 1877 (SA) by sections 4, 5 and 6 re-enacted sections 4, 5 and 6 of the 1872 Act largely in identical terms, except that section 5 referred only to dedication, discarding reservation as otiose.
- The Crown Lands Consolidation Act 1886 (SA) by subsection 6(d) empowered the Governor by proclamation to dedicate any Crown lands for any of ten specific enumerated purposes or for any other public purpose (the named purposes being taken from the 1872 Act and enumerated for convenience). The Governor was now empowered by subsections 6(d) and (e) by proclamation to resume any dedicated land. Section 6(f) empowered the Governor by proclamation to reserve any Crown lands for any of seven specific enumerated purposes or for any other public purpose (taken largely from the 1872 Act). Section 187 vested in the Commissioner of Crown Lands and Immigration the care, control and management of all dedicated or reserved lands, except those under the care, control and management of a council.
- The Crown Lands Act 1888 (SA) by section 6, the Crown Lands Act 1903 (SA) by section 6 and the Crown Lands Act 1915 (SA) by section 5 contained nearly identical terms to section 6 of the 1886 Act. They contained by section 148 a provision in very similar terms to section 187 of the 1886 Act.
- The Crown Lands Act 1929 (SA) (the 1929 Act) by section 5 contained nearly identical terms to section 6 of the 1886 Act. It contained by section 250 a provision in very similar terms to section 187 of the 1886 Act. The 1929 Act in this form was in force when the Dedications were made in the 1970s.
- In 1985, the 1929 Act was amended by the Statutes Amendment and Repeal (Crown Lands) Act 1985 (SA). Section 5 was amended to substitute the Minister for the Governor. Subsection 5(d) was amended to substitute a notice in the Gazette for a proclamation in the Gazette. Subsections 5(d) and (f) were combined into a single subsection 5(d) providing for dedication. A transitional provision (subsection 4b(3)) was inserted to provide that all existing reserved lands were deemed to be dedicated lands. Section 250 addressing care, control and management was repealed; new subsections 5(fa) and (fb) were inserted empowering the Minister by notice in the Gazette to declare that any dedicated lands were to be under the care, control and management of any Minister, municipal or district council, body corporate or association and to revoke or vary any such declaration; and new section 250 provided that the Minister was to have the care, control and management of dedicated lands other than those placed under the care, control and management of another.
- In 2009, the Crown Land Act was enacted. Sections 18 to 21 were enacted in substitution for subsections 5(d) to (fb) of its predecessor. Sections 18 and 21 are largely equivalent to subsection 5(d); section 19 is largely equivalent to that part of subsection 5(d) that empowered the Minister to resume dedicated land; and section 20 is largely equivalent to subsections 5(fa) and (fb). The new provisions are expressed more simply and in plain English and contain limited modifications and additions.
- In June 2017, the Crown Land Act was amended. The amendments are not relevant in this action because the position is to be considered under the version of the Act in force in April 2016 and January 2017 when the Path Decisions were made. The amendments are in any event not material to the issues in this action.[119]
- It can be seen that the fundamentals of dedication of Crown land for public purposes have not changed since the statutory concept of dedication was introduced in 1872.
Crown Lands Alienation Act 1861 (NSW)
- In 1861, the Crown Lands Alienation Act 1861 (NSW) (the 1861 NSW Act) created a statutory form of dedication based on the common law concept but not limited to highways. As noted above, the South Australian 1872 Act was modelled very closely on this legislation.
- Section 1 defined “Crown Lands” to be all lands vested in the Queen [in right of the colony of New South Wales] that had not been granted or contracted to be granted in fee simple and had not been dedicated to a public purpose.
- Section 5 empowered the Governor to reserve or dedicate for the public interest Crown lands for any public purpose. Section 5 provided:
The Governor with the advice [of the Executive Council] may by notice in the Gazette reserve or dedicate in such manner as may seem best for the public interest any Crown Lands for any railway or railway station – any public road canal or other internal communication – any public quay or a landing place – any public reservoir aqueduct or watercourse – or for the preservation of water supply – or for any purpose of defence – or as a site for any place of public worship any hospital asylum or infirmary any public market or slaughter-house any college school mechanic’s institute public library museum or other institution for public instruction or amusement – or for any pasturage common – or for public health recreation convenience or enjoyment – or for the interment of the dead – or for any other public purpose. And upon any such notice being published in the Gazette such land shall become and be reserved or dedicated accordingly and may at any time thereafter be granted for such purposes in fee simple provided that an abstract of any intended reservation or dedication shall be laid before both Houses of Parliament one calendar month before such reservation or dedication is made.
- The difference between dedication and reservation was evidently that dedication was appropriate when the land was to be used for the dedicated purpose definitely and relatively immediately; whereas reservation was appropriate when the land was only contingently or in the relative future to be used for the reserved purpose.
- The Act also governed the grant in fee simple of Crown Lands.
- The Act by section 3 provided that these methods of dedication and grant comprised a code and land could not be dedicated or granted in any other manner. Section 3 provided:
Any Crown Lands may lawfully be granted in fee simple or dedicated to any public purpose under and subject to the provisions of this Act but not otherwise. And the Governor with the advice of the Executive Council is hereby authorized in the name and on the behalf of Her Majesty so to grant or dedicate any Crown Lands.
This provision made express what was clearly implied in the later South Australian 1872 Act.
Subsequent NSW legislation and cases
- The Crown Lands Act 1884 (NSW) (the 1884 NSW Act) by section 104 re-enacted section 5 of the 1861 NSW Act in respect of dedication largely in identical terms, except that section 104 referred only to dedication, discarding reservation as otiose. In this respect it was modelled on the 1877 South Australian Act. Section 105 empowered the Governor by notice in the Gazette to resume any dedicated land. Section 5 re-enacted section 3 of the 1861 Act, identifying the matters covered as sale, lease, dedication, reservation or dealing with land.
- The Crown Lands Consolidation Act 1913 (NSW) (the 1913 NSW Act) by section 24 re-enacted section 104 of the 1884 NSW Act in respect of dedication in largely identical terms except that the Minister was substituted for the Governor. Section 24 re-enacted section 105 of the 1884 Act in respect of the resumption of dedicated land in largely identical terms. Section 6 re-enacted section 5 of the 1884 Act in largely identical terms.
- In The State of New South Wales v The Commonwealth,[120] the Governor had in 1866 dedicated most of Garden Island in Sydney Harbour for naval defence purposes pursuant to section 5 of the 1861 Act. In 1913 the Commonwealth took over the occupation and use of Garden Island as a naval depot. In 1923 the Minister purported to resume the land pursuant to section 24 of the 1913 Act. The High Court by majority rejected the Commonwealth’s contention that the resumption was contrary to an earlier binding agreement with the United Kingdom to which the Commonwealth was a successor. Isaacs J dissented on this point but addressed the nature of dedication in terms not inconsistent with the majority and in terms later approved by the High Court in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act.[121] Isaacs J said:
When in 1865-1866 Garden Island was “dedicated for a naval depot” – a process unknown for such a purpose to the common law – there was then a statutory disposition inherently inconsistent with the initially implied right of possession to, and of benefits from, Garden Island in the Executive of New South Wales.
Section 3 of the Act of 1861 (Crown Lands Alienation Act) provided: “Any Crown lands may lawfully be (a) granted in fee simple or (b) dedicated to any public purpose”. I have for clearness separated the words of the section in order to exhibit more plainly the alternative methods of exercising the constitutional power of dealing with Crown lands. Section 5 enacted that upon the notice mentioned therein being gazetted “such lands shall become and be reserved or dedicated accordingly”. That impressed upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated.... The statute itself has stated its legal effect to the executive act of dedication.[122]
- In Council of the Municipality of Randwick v Rutledge,[123] Windeyer J (with whom Dixon CJ and Kitto J agreed) also addressed the nature of dedication under the 1861 and 1913 Acts. Windeyer J said:
At common law the only way in which land can properly be said to be dedicated to a public use is when it is dedicated as a highway (Ex parte Lewis (1888) 21 QBD 191, at p 197; Attorney-General for New South Wales v Williams (the Government House Case) [1915] UKPCHCA 1; (1915) 19 CLR 343, at pp 345, 346 and per Isaacs J. in New South Wales v The Commonwealth (the Garden Island Case) [1926] HCA 23; (1926) 38 CLR 74, at p. 91. ... [O]ur law does not recognise a public ius spatiandi vel manendi apart from charitable trust or statute ... But it seems more probable that "dedicate" came to be used in New South Wales without any concern for its limited common law sense. It seems to have been thought to indicate something more formal than mere reservation from sale, something binding the Crown and creating some right in members of the public or of a section of the public...
In 1861 Sir John Robertson's two famous Land Acts were passed. The one relevant for present purposes is the Crown Lands Alienation Act of 1861. This Act defined Crown lands as "all Lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple". ... The provisions of ss 4 and 5 concerning reservations and dedications seem to overlap; and quite early there were some differences of judicial opinion as to their effect. In general, s 4 seems to have been designed to provide mainly for temporary reservations from sale, either pending survey or for some other reason; and s 5 to provide for permanent dedications for public purposes, including "public health, recreation, convenience or enjoyment".[124]
- The Crown Lands Consolidation Act 1989 (NSW) by section 80 empowered the Minister, by notification in the Gazette, to dedicate Crown land for a public purpose. Section 84 empowered the Minister, by notification in the Gazette, to revoke a dedication. Section 6 re-enacted section 6 of the 1913 Act in largely identical terms that extended the matters covered to include licensing, occupation and use.
- In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim),[125] land at Armidale had been reserved for the purpose of public recreation in 1966 pursuant to section 28 of the 1913 NSW Act. In 2003, the Minister granted a licence to use the land for grazing. The Land Council contended that this was an unlawful use under the 1913 NSW Act and the 1989 NSW Act and hence it was claimable land under the Aboriginal Land Rights Act 1983 (NSW). The Minister contended that express power to grant a licence in respect of Crown land was conferred by section 34(1)(b) of the 1989 NSW Act. The New South Wales Court of Appeal held that it was unlawful to use the land for grazing and to grant a licence for the use of land for grazing when it had been reserved for the purpose of public recreation. Basten JA (with whom Beazley, McColl and Macfarlan JJA and Sackville AJA agreed) said:
As already explained, the mere fact that reserved land remains Crown land does not mean that the Minister can exercise a power which is inconsistent with the terms of the reservation, but which would be available in respect of Crown land which was not so reserved.
...
[The Minister’s] submission had in common with the previous submission the misconceived formulation of a question by assuming the existence and exercise of the power to grant a licence for a purpose other than the purpose of the reservation. The logical formulation of the question which the Minister should have asked himself or herself, before granting the licence, must be “Is a licence for the proposed purpose one which can be granted given the terms of the reservation of the land for a different purpose?” ....
...
... the scope of the power to grant the licence did not depend on the use of the land, actual or potential, under the licence. Rather, it depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used, but the purpose for which it could be used...
...
Where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised.[126]
- In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,[127] land at Berima had in 1891 and 1894 been dedicated under the 1884 NSW Act for the purpose of a gaol and adjoining land had in 1958 been dedicated under the 1913 Act for the purpose of a gaol. In 2011 the gaol was closed and the High Court proceeded on the basis of a finding that the land was not thereafter used for the dedicated purpose of a gaol. The land was maintained while a decision was made as to its future use, and offenders the subject of community service orders worked in the grounds as part of their community service obligations. The majority in the High Court held that it would have been unlawful to use the land for a purpose inconsistent with the dedicated purpose of a gaol but there was no positive obligation on the Crown to use the land for the dedicated purpose. French CJ, Kiefel, Bell and Keane JJ said:
It may be accepted that the dedication of land has a limiting effect. Its use, benefit and possession must conform to the purpose for which it was dedicated [citing the judgment of Isaacs J in The State of New South Wales v The Commonwealth extracted at [724] below]. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it...
...
While the dedications may not permit the claimed land to be actively used for purposes inconsistent with the dedications, occupation for the purpose of preserving the value of the land as an asset of the State of New South Wales so that it may then be used by the State to best advantage having regard to any dedications existing at that time is not occupation inconsistent with the dedications.[128]
- Gageler J, agreeing in the result, addressed the restriction on use as a result of dedication in the following terms:
For so long as it remains in force, each dedication restricts use of the portion of the land to which it relates to use for the particular public purposes for which the portion was dedicated.[129]
- Nettle and Gordon JJ also proceeded on the basis that the Crown Land Acts imposed legal constraints on the use of dedicated land by reference to the dedicated purpose. They said:
The legal effect of a dedication of the kind to which a statutory provision like s 36 of the Land Rights Act refers was explained by Isaacs J in New South Wales v The Commonwealth when considering s 3 of the Crown Lands Alienation Act 1861 (NSW), an equivalent provision to that now found in s 80 of the CLA 1989. His Honour stated that a dedication "impresse[s] upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated".[130]
Effect of dedication
Interpretation from first principles
- All parties referred to South Australian predecessor legislation before the enactment of the Crown Land Act 2009 for the purpose of construing the latter and proceeded on the basis that the legal effect of dedication in South Australia has not changed since its introduction: either a dedication has always had legal effect or it has never had legal effect.
- I first consider the interpretation of the Crown Land Act (and its predecessors) from first principles by reference to text, context and evident purpose before turning to consider authorities in relation to the interstate legislation.
- Starting with the text of section 18 (and its predecessors), it is highly significant that the legislature chose the term “dedicate” for the new process created by section 6 of the 1872 Act now embodied by section 18 of the Crown Land Act.
- The
verb “dedicate” is relevantly defined by the Macquarie Dictionary to
mean:
- to set apart and consecrate to a deity or to a sacred purpose.
- to give up wholly or earnestly, as to some person or end; set apart or appropriate.[131]
and by the Oxford English Dictionary to mean:
- a. trans. To devote (to the Deity or to a sacred person or purpose) with solemn rights; to surrender, set apart, and consecrate to sacred uses.
- transf. To give up earnestly, seriously, or wholly, to a particular person or specific purpose; to assign or appropriate; to devote.
...
4. a. Law. To devote or throw open to the use of the public (a highway or other open space).
- To open formally to the public; to inaugurate, made public.[132]
The ordinary English meaning of “dedication” connotes a formal and effective act.
- More importantly, the legislature deliberately chose the verb “dedicate” against the background that its prior use in the law referred to a highway dedication, which was a legally effective act whereby land became dedicated to the purpose of a highway for the benefit of the public. If the legislature had intended that an instrument have no legal effect, it would not have used the word dedicate with its pre-existing connotation.
- The legislature provided that a formal instrument is required to effect dedication of land for a specified purpose. If dedication were not intended to have legal effect, such formality would not have been needed.
- The Crown is entitled to use Crown land for any purpose that it wishes and there is no need to dedicate the land to a particular purpose in order to use it for that purpose. If dedication were not intended to have legal effect, there would have been no need to introduce a concept of dedication at all.
- Turning to the context of section 18 (and its predecessors) within its Division, the other provisions reinforce dedication having legal effect. If dedication were intended to have no legal effect, there would be no necessity for consultation with a licensee or custodian (as is required by subsections 18(2) and (3) and 20(3)) before effecting a dedication. There would be no need for the formalities required by section 19 before revocation of dedication is effected.
- Turning to the context of section 18 (and its predecessors) within Part 3, Part 3 is entitled “Dealing with land” and addresses various forms of disposal of land, including sale, leases and licences. Dedication is treated as one species of dealing with land in the sense that it affects its future lawful use.
- Turning to the context of section 18 (and its predecessors) within the Act as a whole, if dedication were intended to have no legal effect, there would be no need to exclude dedicated land from the definition of “unalienated Crown land” (as is done by section 3) or from the substantive provisions of the Crown Land Act that address unalienated Crown land (see Part 3 Division 3 Disposal of land and Division 5 Leases; and Part 4 Division 2 addressing conservation, protection and rehabilitation of unalienated Crown land).
- Turning to the evident purpose of the dedication provisions, the evident purpose is to restrict, as long as the dedication remains in force, the lawful use of the land by reference to the dedicated purpose.
- The Council submits that the dedication provisions do not expressly or impliedly create a trust. This proposition may be accepted: dedication of a highway at common law does not create a trust. Dedication is a concept sui generis in the law: it has its own consequences independently of the equitable doctrine of trusts.
- The Council submits that there was nothing in the 1929 Act and there is nothing in the Crown Land Act that expressly makes use for a non-dedicated purpose or for a purpose inconsistent with the dedicated purpose unlawful. Such a provision would be otiose because dedication itself connotes a limitation on use by reference to the dedicated purpose.
- The Council points to section 5AA(1)(c) of the 1929 Act which empowered the Governor to resume dedicated land when it was being used for a purpose other than the one for which it was dedicated and submits that this implied that dedicated land could lawfully be used for a non-dedicated use but this merely risked provoking resumption of the dedication. No such implication arises. This provision is entirely consistent with use for a purpose inconsistent with the dedicated purpose being unlawful.
- The Council points to section 244 of the 1929 Act which empowered the Governor to grant licences for certain purposes with respect to, amongst others, dedicated lands and submits that this power excluded any implied notion that a licence could only be granted for the dedicated purpose. However, in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim),[133] the Minister had granted a licence to use the land for grazing pursuant to a similar power conferred by section 34 of the 1989 NSW Act and the New South Wales Court of Appeal held that the power to grant a licence under that provision was subject to the restrictions arising from the dedication.[134] This reasoning applies equally to section 244 of the 1929 Act.
- The Council makes the same submission about section 28 of the Crown Land Act, which empowers the Minister to grant an easement over Crown land for any purpose the Minister thinks fit and section 46 of the Crown Land Act, which empowers the Minister to grant licences in relation to Crown land. Again, in the absence of express statutory provision, applying the reasoning of the New South Wales Court of Appeal, this power would be subject to the restrictions arising from the dedication. Moreover, subsection 18(6) expressly provides that the Minister must not grant an interest or rights in relation to dedicated land if the grant of the interest or rights would have the effect of preventing the land being used for the purpose for which it is dedicated.
- The Council submits that if a custodian uses dedicated land contrary to the dedicated purpose, the Minster can withdraw the land from the custodianship of the custodian pursuant to section 20 of the Crown Land Act. However, this does not address the circumstance in which the land is not under the custodianship of a council or other entity under section 20. Moreover, the mere fact that the Minster has power to withdraw land from a custodian does not negate use of the land contrary to the dedication being unlawful.
- The Council points to section 26 which empowers the Minster to transfer the fee simple in land to a transferee on condition that the transferee enter into a “Crown condition agreement”, it being implicit that such an agreement imposes restrictions on, or perhaps positive obligations in respect of, the use of the land by the transferee. This is the successor to provisions in predecessor legislation for transfer of the fee simple subject to a trust to use the land for specified purposes. Subsections 26(4) to (6) empower the Court upon application by the Minister to cancel the title of the transferee, or impose a fine, if the transferee breaches the agreement. The Council submits that this is the exclusive mechanism under the Act for enforcement of limitations on the use of land. I reject that submission. Section 26 has no application to dedicated land under the care control and management of the Crown or of a council. It only applies after land has been disposed of by the Minister.
- The Council submits that the right of the Crown to manage Crown lands is a prerogative power; there is a presumption that legislation is not intended to withdraw or curtail prerogative powers and that presumption has not been displaced in relation to statutory dedications under the Crown Land Act and its predecessors. The Council’s first two propositions may be accepted, but as observed above there is no statutory purpose in dedicating land unless it affects the pre-existing position that the Crown can use the land for any purpose it wishes pursuant to the prerogative power. Moreover, land is only dedicated in the first place by a voluntary and formal act of the Crown. For these reasons and all of the reasons given above, there is a clear statutory intention to limit the power of the Crown to manage dedicated lands by reference to the dedication purpose.
- As a matter of construction, a dedication of land for a specified purpose pursuant to section 18 of the Crown Land Act or its predecessors has legal effect.
Authority
- I turn to consider authorities in respect of interstate legislation. The Council accepts that in New South Wales the legal effect of a dedication is and always has been to limit the permissible use of land by reference to the dedicated purpose and a use of the land inconsistent with the dedicated purpose is unlawful. The Council contends however that the position in South Australia is and always has been different by reason of the inclusion in the New South Wales legislation of section 3 of the 1861 NSW Act and its equivalents.
- Section 3 of the 1861 NSW Act provided:
Any Crown lands may lawfully be granted in fee simple or dedicated to any public purpose under and subject to the provisions of this Act but not otherwise. And the Governor with the advice of the Executive Council is hereby authorized in the name and on the behalf of her Majesty so to grant or dedicate any Crown lands.
- It was the 1861 NSW Act which Isaacs J in The State of New South Wales v The Commonwealth[135] held, in a passage subsequently approved in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,[136] “impressed upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated”.[137]
- The evident purpose of section 3 of the 1861 NSW Act was to ensure that the Act covered the field of grants and dedications. As observed above, although an explicit provision to this effect was not included in the South Australian 1872 Act that was modelled on the 1861 NSW Act, this was clearly implied. Section 3 was not the operative section of the 1861 NSW Act that created or defined the effect of dedications: that was achieved by section 5. The evident purpose of section 5 of the South Australian 1872 Act was to create a statutory form of dedication of the same nature and having the same effect as had been created in New South Wales 11 years earlier. The fact that there was no direct equivalent of section 3 in the South Australian 1872 Act does not detract from the applicability of the reasoning of the High Court to dedications in South Australia.
- Over the years since 1861, the equivalent of section 3 of the 1861 NSW Act was gradually extended. Section 6 of the 1989 NSW Act provides:
6. Crown land to be dealt with subject to this Act etc
Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989.
- It is plain that section 6 does not affect or deal with the nature and effect of a sale, lease, licence, dedication, reservation etcetera under the 1989 NSW Act: this is left to be addressed by the substantive sections of the Act. All that section 6 does is to provide that the Act operates as a code in relation to sale, lease, licence, etcetera.
- Accordingly, the decisions of the High Court that dedications under the New South Wales legislation have legal effect are equally applicable to the South Australian legislation.
- The Council cites decisions in which it has been held that, absent a formal dedication under statute, no informal dedication can arise outside the common law doctrine of dedication for a highway purpose. These decisions do not support the Council’s contention that a statutory dedication has no legal effect.
- In Williams v The Attorney-General for New South Wales,[138] a house was built and gardens created between 1836 and 1845 on Crown land that became known as Government House in Sydney. The Governor of New South Wales resided at Government House between 1845 and 1900 and the Governor-General of Australia resided there between 1901 and 1912. Upon the departure of the Governor-General, the New South Wales government announced that the house and grounds would no longer be used for the residence of the King’s representative and would instead be used for some other purpose and thereafter permitted them to be used by members of the public. The Attorney-General on the relation of three individuals filed an information against Williams as nominal defendant representing the Government seeking declarations that the house and grounds were vested in the Crown in right of the United Kingdom and had been dedicated to the public purpose of a residence for the King’s representative and the New South Wales government had no power to interfere with that purpose. It was an essential element of the informants’ case that the land in question was vested in the Crown in right of the United Kingdom and not the Crown in right of New South Wales and further that the Attorney-General could bring the action on behalf of the Crown in right of the United Kingdom under the doctrine of parens patriae. The High Court and in turn the Privy Council[139] held that the informants had failed to make out either proposition. The informants did not allege that there had ever been any statutory dedication of the land under the 1861 NSW Act or its successors. The High Court held that, there being no statutory dedication or dedication recognisable at common law and there being no trust, there was no legal foundation for the informants’ claim in any event. This additional basis for the High Court’s decision is unsurprising and does not assist the Council in any way.
- Barton ACJ said:
I cannot think that in respect of this particular area as a place of residence for the King’s representative in New South Wales the people of New South Wales can look upon themselves as entitled to some beneficial right or interest. It is of course not asserted that they have any proprietary interest. How then is their interest defined? If it is not proprietary, how can it be a right to have the Governor’s residence located there and nowhere else; and, if it is not proprietary, under what head does it fall? It seems to me both undefined and indefinable, and I cannot see that it is the subject of any trust... [T]he informants here ... failed to bring their claim “within some recognized legal principle”....
...
I fail to see how any distinction can be drawn between the land in question and the other land and buildings which at the time of the Constitution were used by the Crown for public purposes and which have ever since been administered by the Government responsible to the local legislature. That I believe to be the position in this case, and I am of opinion that the Executive Government of this State is entitled to put the house and grounds in question to any use not expressly or impliedly forbidden by the terms of its Crown Land Acts or any other of its laws.[140]
Isaacs J said:
The respondents ... “must bring their claim within some recognized legal principle.” ... What, then, is the supposed trust? ... It is, in fact, nothing but a supposed surrender by the Crown of the right to use its own public property, if used at all, in any but the one way – a surrender based on no consideration, accompanied with no easement or servitude, or grant of any fragment of ownership. I am utterly unable to classify the alleged right, or to identify its position in our system of servant law.[141]
Higgins J said:
If the Crown has built a house for one of its servants, there is nothing to prevent it from changing its intention at any moment, and letting in another servant, or pulling down the house. The servant has no right to the house as against the Crown; and what is more to the purpose – the public have no right that can be recognized in a court of law against the Crown.
Now, what evidence is there of any relinquishment of its full rights of ownership, on the part of the Crown?... there is no evidence of anything in the nature of dedication... Successive Governors “reserved” – held back – from sale a large but diminishing area of the frontage to the harbour, and the land in question was part of the area; but no evidence has been produced to show either that the Governors had power, or that they intended, to bind the Crown as to the purposes for which this land was to be used.[142]
Gavan Duffy and Rich JJ said:
It is true that the land was reserved, and has long been reserved, as a residence and domain for the Governor of New South Wales; but the reservation was not intended to confer on the public of New South Wales any rights as against the Sovereign. Its intention and its effect were to retain the land for the purpose of the King’s Government in the Colony... The reservation gave to the public no more than it would have been given had the land been reserved and used for post office, a Court of Justice, or a Custom house. Such purposes are commonly call public purposes, but the public has no right with respect to them which can be enforced in a Court of law, apart from the proprietary right which the sovereign can enforce and defend.[143]
- The Council also cites Council of the Municipality of Randwick v Rutledge[144] for the proposition that, leaving aside dedications for highways at common law and statutory dedications, there can be no dedication in the absence of creation of a trust. Windeyer J (with whom Dixon CJ and Kitto J agreed) said:
At common law the only way in which land can properly be said to be dedicated to a public use is when it is dedicated as a highway ...[O]ur law does not recognise a public ius spatiandi vel manendi apart from charitable trust or statute... It was a later and even greater mistake to think that lands appropriated and taken into use by the Crown for a particular purpose (without the creation of any trust) became dedicated to that purpose and could not thereafter be used by the Crown for another purpose. All this was fully considered in Williams v Attorney-General for New South Wales (the Government House Case). It suffices to say here that there can be no dedication in any strict sense unless a public trust be created.[145]
- This does not assist the Council as Windeyer J excepted dedications by statute from the legal position set out in the second sentence extracted above and went on after this passage to address statutory dedication under the 1861 NSW Act.
- The authorities support the construction advanced by the plaintiffs and are contrary to the construction advanced by the Council.
Conclusion
- Both principle and authority compel the conclusion that on the proper construction of the Crown Land Act the dedication of land for a specified purpose pursuant to section 18 of the Crown Land Act or its predecessors has legal effect.
Test for contravention of dedication
- The next issue is whether the requirement to act in accordance with a dedication is breached by acting otherwise than in furtherance of the dedication purpose or by acting inconsistently with the dedication purpose.
- The plaintiffs contend that a use of dedicated land is unlawful if the use is for any purpose other than or incidental to the dedicated purpose (the furtherance test). The Council, supported by the Attorney-General, contends that a use of dedicated land is only unlawful (if at all) if the use is inconsistent with the dedicated purpose (the inconsistency test).
- I first consider the interpretation of the Crown Land Act from first principles by reference to text, context and evident purpose before turning to consider authorities in relation to interstate legislation.
- Subsection 18(6) of the Crown Land Act provides:
The Minister must not grant an interest or rights in relation to dedicated land if the grant of the interest or rights would have the effect of preventing the land being used for the purpose for which it is dedicated.
- This provision strongly suggests that the test of unlawfulness is the inconsistency test. This provision allows the Minister to grant an interest in relation to dedicated land as long as it does not prevent the land being used for the dedicated purpose. This provision permits the Minister to grant a lease of dedicated land enabling the lessee to use the land for a non-furtherance purpose as long as it does not prevent the land being used for the dedicated purpose.
- Subsection 22(1) provides that the Minister’s consent is required to the grant of a lease by any other person of dedicated land. Subsection 22(3) provides:
The Minister may refuse consent to the grant of a lease if the grant of the lease—
(a) would detract from any existing public use and enjoyment of the land; or
(b) would prevent the land being used for the purpose for which it was dedicated; or
(c) would otherwise, in the opinion of the Minister, be improper or undesirable.
- Section 23(3)(a) and (b) employ the same concept of a use preventing or detracting from the land being used for the dedicated purpose. In this respect subsections 22(3) and 23(3) are consistent with subsection 18(6) and also support the inconsistency test.
- The regime embodied in subsections 18(6), 22(3) and 23(3) is inconsistent with the furtherance test.
- There is no evident rationale for rendering unlawful the use of dedicated land that is not inconsistent with or detrimental to use of the land for the dedicated purpose. If land can be used simultaneously for the dedicated purpose and another independent purpose not inconsistent therewith, there is no evident reason why such use should be rendered unlawful. Similarly, if the land is used for an independent purpose not inconsistent with or detrimental to its use for the dedicated purpose, there is no reason why such use should be rendered unlawful. This is particularly so given that the obligation in respect of use of dedicated land is negative in nature (the Crown or the custodian not being under a positive obligation to use the land for the dedicated purpose). If by definition a use is not inconsistent with the dedicated purpose, the evident purpose of the dedication provisions does not require that such use be unlawful.
- The statutory concept of dedication for a public purpose was modelled on common law dedications of land for the purpose of a highway. The test for unlawfulness of use of land dedicated for the purpose of a highway is the inconsistency test rather than the furtherance test.[146] The likely legislative intention was that the test for unlawfulness was also modelled on the common law test.
- By reference to the text, context and evident purpose of section 18, the test for unlawful use of dedicated land is the inconsistency test.
- Turning to authorities on the New South Wales legislation, in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim),[147] the New South Wales Court of Appeal held that the furtherance test applied under the 1989 NSW Act. Basten JA (with whom Beazley, McColl and Macfarlan JJA agreed) said:
The issue, as identified in this court, was whether, to be lawful, the use and occupation must be (a) for, or incidental to, the purpose of the reservation or (b) merely not inconsistent with, or not incompatible with, that purpose. ...
...
The approach adopted by the primary judge, accepting the contentions of the Land Council, was, in effect, that a reservation under the Crown Lands Act bound the Minister according to its terms, until revoked. Thus, land reserved from sale could ... be the subject of the exercise of other powers so long as those powers were exercised for the public purpose stated in the reservation, namely public recreation, or for some purpose incidental thereto. All other purposes were excluded. Grazing, as carried out by a private property owner, did not involve use of the land for the identified purpose. An instrument which purported to confer such a right was therefore invalid.
By contrast, the Minister sought to apply the test of inconsistency or incompatibility to the permitted use of the land ... The Minister could, according to that submission, authorise uses of the land for any purpose, private or public, so long as those uses were not inconsistent or incompatible with the use resulting from the purpose identified in the reservation. On that approach, although grazing was not a form of public recreation, if it were not inconsistent or incompatible with public recreation, it was a permissible use of the land.
...
Where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised.
...
The opinion of the primary judge that the issue of a grazing licence over the claimed land was not a valid exercise of the Minister's power under the Crown Lands Act in respect of that land was correct and involved no error of law.[148]
- In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,[149] French CJ, Kiefel, Bell and Keane JJ said:
It may be accepted that the dedication of land has a limiting effect. Its use, benefit and possession must conform to the purpose for which it was dedicated [citing the judgment of Isaacs J in The State of New South Wales v The Commonwealth extracted at [695] above]. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it.
...
While the dedications may not permit the claimed land to be actively used for purposes inconsistent with the dedications, occupation for the purpose of preserving the value of the land as an asset of the State of New South Wales so that it may then be used by the State to best advantage having regard to any dedications existing at that time is not occupation inconsistent with the dedications.[150]
- The plurality accepted that use for an unrelated purpose of preserving the value of the land as an asset of the State was not unlawful provided that it was not inconsistent with the dedications. Although the plurality did not refer to the New South Wales Court of Appeal’s decision in the Goomallee Claim case, the persuasive authority of the Goomallee Claim case is undermined by the judgment of the plurality in the High Court.
- The New South Wales Court of Appeal in the Goomallee Claim case did not identify why a furtherance test as opposed to an inconsistency test was evident by reference to the text, context and evident purpose of the provisions of the 1989 NSW Act. Given the circumstances, and the subsequent decision of the High Court in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act, it is appropriate to determine the statutory construction of the South Australian provisions from first principles notwithstanding the decision of the New South Wales Court of Appeal in the Goomallee Claim case.
- In conclusion, the test whether use of land is unlawful by reference to the dedicated purpose is whether it is inconsistent with use of the land for the dedicated purpose.
Amenability to review and standing
- As noted above, the Council sought to contend that its conduct is not amenable to review by the Court. I have ruled that, in the absence of pleading this answer, it is not open to the Council to advance this contention.
- In any event, I would have rejected the Council’s contention on its merits. The only argument advanced by the Council in support of the contention was that the decision of the High Court in Williams v The Attorney-General for New South Wales[151] establishes that inconsistency between acts of a custodian of Crown land and the dedicated purpose of that land is not capable of founding a legal proceeding by anyone, citing passages from the judgments of the Justices of the High Court from which the extracts at [731] above are taken. However, as observed above, there was no statutory dedication in existence in Williams and the High Court merely decided that in its absence there was no legal basis for the claims made by the informants.
- If I had held that on its proper construction the Crown Land Act did not give legal effect to statutory dedications, it would have followed that the Council’s conduct is not amenable to review on the ground of inconsistency with the statutory dedication. Conversely, given that I have held that legal effect is given to statutory dedications, the Council’s conduct is amenable to review on the ground of inconsistency with the statutory dedication.
- As noted above, the Attorney-General sought to contend that the plaintiffs do not have standing to seek review by the Court on the ground that the Council’s conduct is inconsistent with the statutory dedications. I have ruled that, given the Attorney-General’s limited status as an intervener, it is not open to him to advance this contention.
- In any event, I would have rejected the Attorney-General’s contention on its merits. The Attorney-General submits that, if dedicated land is used by a custodian in an impermissible fashion, only the Minister and possibly the Attorney-General or a person with his fiat can assert a breach. However, this does not address the circumstance in which it is the Minister who is allegedly using dedicated land in a manner inconsistent with the dedicated purpose.
- If I had held that on its proper construction the Crown Land Act did not give legal effect to statutory dedications, it would have followed that no one (not even the Minister or the Attorney-General) has standing to seek review by the Court on the ground that the Council’s conduct is inconsistent with the statutory dedications. Conversely, given that I have held that legal effect is given to statutory dedications, the rules as to standing are those articulated by the High Court in Onus v Alcoa of Australia Ltd,[152] in which Gibbs CJ (with whom Stephen and Mason J relevantly agreed) said:
A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.[153]
Brennan J agreed with the test articulated by Gibbs CJ,[154] adding:
A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner.[155]
- The Attorney-General does not contend that, insofar as the action is based on alleged inconsistency with the dedicated purposes, the plaintiffs in this action do not have an interest in the subject matter of the action beyond that of other members of the public. It is clear that they do. The plaintiffs have standing to bring the action insofar as it is based on alleged inconsistency with the dedicated purposes.
Breach of requirement as to use
- The next issue is whether construction of the coastal path pursuant to the Path Decisions is contrary to the requirement to act in accordance with the dedications.
Coast Protection Dedication
- The Coast Protection Dedication is dated 29 January 1976 in respect of sections 987 and 988 hundred of Yatala. The Coast Protection Dedication Land is that part of the Council coastal land between Fort Street and the southern boundary of Moredun Reserve and from the northern boundary of Moredun Reserve for about 40 metres to the north towards Hillview Avenue.
- The Dedication reserves the land for the purpose of a “coastal protection reserve” and declares that it is shall be under the care, control and management of the Council.[156]
- The Council submits that the reference in the Dedication to “the coast” is a reference to the houses and infrastructure constructed on the land east of the property boundaries and does not include the sand dunes west of the property boundaries. The plaintiffs submit that the reference is to, or alternatively primarily to, the land west of the property boundaries.
- The Dedication was made not long after the enactment of the Coast Protection Act and establishment of the Coast Protection Board. That Act defined “coast” for the purpose of the Act to mean amongst other things land within 100 metres landward of the mean high water mark or within three nautical miles seaward of the mean low water mark. While the selection by the legislature of 100 metres might be regarded as somewhat arbitrary in that say 90 metres or 110 metres might equally have been selected, it gives a plain indication as to the intent of the Dedication in applying to “the coast”.
- I reject the Council’s submission. On the proper construction of the Dedication, the “coast” the subject of the reservation for coast protection purposes is the same coast which it is the Board’s responsibility to protect from erosion, damage, deterioration, pollution and misuse. The “coast” the subject of the reservation for coast protection purposes includes the sand dunes which are within the public coastal land. However, it also encompasses that part of the dunes on which houses and infrastructure have been constructed to the extent that they are within 100 metres of the mean high water mark.
- On the proper construction of the Dedication, the protection the subject of the reservation for coast protection purposes is the same protection that is addressed under the Coast Protection Act, namely protection from erosion, damage, deterioration, pollution and misuse.
- On the proper construction of the Dedication, the concept of “coast protection” the subject of the Dedication is a relatively large scale, or macro, concept. To take an extreme example, it does not extend to protection of every grain of sand, every blade of grass, every plant or every square metre.
2016 Path Decision
- When the Council made the 2016 Path Decision, it authorised the Council administration to proceed with construction of a three metre wide concrete path in the general vicinity of the path shown in Option 2A or Option 2B in the 2015 Planning Study. The Council administration was given the latitude to locate the concrete path in a range between the property boundaries and somewhere through the sand dunes.
- I accept the evidence of Dr Semeniuk, which was not contested or challenged by the Council, that a concrete path is subject to breaking up into large chunks as a result of a severe storm, with the chunks causing damage to the coast.
- Based on the information provided by the Coast Protection Board to the Council, I find that a concrete path located on or adjacent to the grassed strip as depicted in Option 2A would be protected by in excess of 80 cubic metres of sand to the seaward and the chance of its being broken up in a severe storm is so remote that construction of the path would not be inconsistent with the relevant land being used for the purpose of coast protection. Equally, based on the same information, I find that a concrete path located somewhere through the sand dunes as depicted in Option 2B would not be sufficiently protected by sand to the seaward and the chance of its being broken up in a severe storm and causing damage to the coast is substantial such that construction of the path in that location would be inconsistent with the relevant land being used for the purpose of coast protection.
- If the Council administration had decided to locate the concrete path somewhere through the sand dunes, this would have been inconsistent with the relevant land being used for the purpose of coast protection. However, the Council administration never made such a decision and decided instead that the concrete path was to be confined to the vicinity of the grassed strip and the path to be located through the dunes was to be a boardwalk instead. No evidence was adduced to prove that the breaking up of a boardwalk would cause appreciable damage at a sufficient level to offend against the coast protection purpose.
- As the Council has no intention of proceeding with construction of a concrete path through the dunes, there has been no actual breach by the Council of its obligation not to use the relevant land for a purpose inconsistent with the purpose of coast protection and, whatever the position may have been between April 2016 and January 2017, there is no such threatened breach. There is now no basis to grant an injunction or other relief by reference to the Coast Protection Dedication in respect of action that might otherwise be taken pursuant to the 2016 Path Decision.
2017 Path Decision
- The 2017 Path Decision involves the construction of a three metre wide concrete path in the vicinity of the grassed strip and a boardwalk through the Swale. For the reasons given above, by acting on the 2017 Path Decision there would be no breach by the Council of its obligation not to use the relevant land for a purpose inconsistent with the purpose of coast protection. There is no basis to grant an injunction or other relief by reference to the Coast Protection Dedication in respect of action that might be taken pursuant to the 2017 Path Decision.
Natural Features Dedication
- The Natural Features Dedication is dated 10 October 1974 in respect of sections 993 and 994 hundred of Yatala. The Natural Features Dedication Land is that part of the Council coastal land extending from about 90 metres south to about 60 metres north of Hillview Avenue (section 993).
- The Dedication reserves the land for the “preservation of natural features” and declares that it shall be under the care, control and management of the Council.[157]
- No evidence was adduced to identify any feature or features of the land that as at 1974 might be characterised as natural and might be in need of preservation. Some evidence identifying natural features of the land capable of being the subject of preservation is essential to determine the nature and extent of the dedicated purpose in sufficient detail to make a finding whether the proposed use of the land by the Council would be inconsistent with the dedicated purpose. The onus of proof lies on the plaintiffs in this respect.
- As in the case of coast protection, the preservation of natural features is likely to be a relatively large scale concept. The January 2017 plans show the path cutting across only a few square metres on the corner of the land the subject of the Natural Features Dedication. Evidence was adduced that there are presently exotic oleander bushes planted on this part of the land and no native vegetation. The 2017 Path Decision authorised the Council administration to make variations to the precise location of the path. However, wherever the path is located on the Natural Features Land, in the absence of proof what are the natural features the subject of the Dedication, the plaintiffs have failed to prove that there would be a breach of the Natural Features Dedication.
Conclusion
I. CONCLUSION
- The plaintiffs have established that, in making the Path Decisions, the Council breached section 199 by acting contrary to and not in accordance with the Management Plan and this results in unlawfulness of the Path Decisions, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.
- The plaintiffs have established that the Management Plan is invalid because it does not state any performance targets or how the Council proposes to measure its performance against its objectives and performance targets and unlawful because the Council breached sections 50 and 197 by failing to comply with its Consultation Policy in respect of the draft Management Plan, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.
- The plaintiffs have established that the Path Decisions are unlawful because the Council breached section 50 by failing to comply with its Consultation Policy in respect of the Path Decisions, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.
- The plaintiffs have established that, in making the Path Decisions, the Council failed to have regard to a mandatory consideration, namely environmental considerations, giving rise to an entitlement to the grant of an injunction restraining the Council from acting on the Path Decisions.
- The plaintiffs have failed to establish that the use of the land for a coastal path pursuant to the 2017 Path Decision is inconsistent with the Dedications.
- The plaintiffs are entitled to declaratory or injunctive relief or both in accordance with my reasons for judgment. I will hear the parties as to the precise terms of the relief to be granted.
[1] Grounds 1.1 and 1.2.
[2] Ground 2.
[3] Grounds 3.3-3.11 and 4.3
[4] Grounds 3.1, 3.2, 4.2 and 4.6. The plaintiffs also contend in the alternative to the above that the Council failed to have regard to compliance with its public consultation policy and section 196(3)(d) (Grounds 1.1, 2, 3.12, 4.1 and 4.4).
[5] A desire to limit the extent and duration of public debate concerning the proposed coastal path and/or the draft management plan: Ground 1.1.1 (first occurring).
[6] That prior consultation in relation to the proposed coastal path diminished the level of consultation required in relation to the draft management plan (Ground 1.1.2.1) and that the draft management plan was a plan for the construction of a coastal path (Ground 1.1.2.2).
[7] Ground 4.
[8] Grounds 6.1-6.3, 9 and 10, 10.6, 13.1 and 13.2.
[9] Grounds 5 and 9.
[10] Grounds 6.20, 6.21, 9 and 10.6.
[11] Ground 6.4 and 9
[12] Grounds 6.4-6.11, 6.14, 6.16, 6.18, 9, 10.1-10.5, 10.7, 11.1 to 11.6. The plaintiffs also contend in the alternative to the above that the Council failed to have regard to compliance with the management plan (Grounds 6.1-6.3, 6.13, 6.15, 9 and 13.3), its public consultation policy (Grounds 6.20, 6.21 and 9) and the dedications (Grounds 4.7, 6.12 and 9).
[13] That the path decisions had unqualified support from the relevant State Minister (Ground 6.17) and the Purported Dedications were valid (Grounds 7, 9, 11 and 14.2).
[14] Ground 11.
[15] Grounds 6.20, 6.21, 9 and 12.
[16] Response 2.3.
[17] Response 1.4 and 1.5.
[18] The Council does not plead this in its Response. However, it makes this contention in its closing address and the plaintiffs do not object to it on the ground that it is not pleaded.
[19] Response 1.4 and 1.5.
[20] The Council does not plead this in its Response. However, it makes this contention in its closing address and the plaintiffs do not object to it on the ground that it is not pleaded.
[21] The Council does not plead this in its Response. However, it makes this contention in its closing address and the plaintiffs do not object to it on the ground that it is not pleaded.
[22] Response 8 and 12.
[23] Response 3, 4, 6 and 10.
[24] Response 5A and 9A.
[25] The Council does not plead this in its Response. However, it makes this contention in its oral address and the plaintiffs do not object to it on the ground that it is not pleaded.
[26] The Council’s predecessors included the City of Henley and Grange and the City of Woodville.
[27] The Moredun Reserve vested in the Minister for Sustainability, Environment and Conservation and an area around the Torrens Outlet in West Beach/Henley Beach South vested in SA Water.
[28] Although this swale is only the easternmost of the swales west of the property boundaries, I call it the Swale because of the focus in the case on this swale compared to more westerly swales.
[29] See [193] below.
[30] She also sought feedback from the Crown on the draft management plan and assurances that the Crown land dedications were appropriate for a shared use pathway: see [195] below.
[31] The Minister also addressed the request for feedback from the Crown on the draft management plan: see [196] below.
[32] Development Regulations 2008 (SA) Schedule 3 clause 17.
[33] Point Malcolm Reserve, Tennyson Heights Reserve and Moredun Reserve all at Tennyson. The report also listed the Tennyson Dunes Car Park Reserves North and South, although they were not under the Council’s care and control at least as at February 2016.
[34] She also sought the State government’s view on its preferred pathway alignment: see [154] above.
[35] The Minister also addressed the request for the State government’s view on its preferred pathway alignment: see [155] above.
[36] Citing Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404 at 428-430 per Barton ACJ, 433-434 per Isaacs J, 462-463 per Higgins J and 466-466 per Gavan Duffy and Rich JJ.
[37] This is not to say that the questions whether the Crown Land Act renders invalid or unlawful an act by the custodian inconsistent with a dedication and whether the act is amenable to review are not two sides of the same coin. However, if they are, if the Council succeeds on the former, any question of amenability to review is otiose and conversely if they are not, the Council is not permitted to advance an independent contention in respect of the latter.
[38] [2010] HCA 19, (2010) 241 CLR 1.
[39] At [132]-[133]. (Citations omitted)
[40] Hocking v The Southern Greyhound Racing Club Inc [1993] SASC 4226; (1993) 61 SASR 213 at 215-216 per King CJ and 219-222 per Debelle J (with each of whom Millhouse J agreed).
[41] [1993] SASC 4226; (1993) 61 SASR 213.
[42] At 215-216 per King CJ and 219-222 per Debelle J (with each of whom Millhouse J agreed).
[43] At 215.
[44] This is not to say that the questions whether the Crown Land Act renders an act by the custodian inconsistent with a dedication unlawful and whether a plaintiff has standing are not two sides of the same coin. However, if they are, if the Council succeeds on the former, any question of standing is otiose and conversely if they are not, the Attorney-General is not permitted to advance an independent contention in respect of the latter.
[45] Turner v Kostoglou [2004] SASC 174 at [31] per Mullighan J (with whom Nyland and Anderson JJ agreed).
[46] NEC Information Systems Australia Pty Ltd v Lochart (1991) 101 ALR 95 at 97-98 per Kirby P.
[47] Australian Conservation Foundation v The Commonwealth [1980] HCA 53; (1980) 146 CLR 493 at 511 per Aickin J; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591 at [47] per Gaudron J.
[48] [2000] HCA 11; (2000) 200 CLR 591.
[49] At [2]. (Citations omitted)
[50] At [40].
[51] At [88]-[107].
[52] At [98]-[99].
[53] As will be seen when I address the second issue, the Council contends that non-compliance with the plan does not rise to any legal consequences.
[54] Macquarie Dictionary, 7th ed (2017) page 124.
[55] Oxford English Dictionary, 2nd ed (1989) vol 2 page 9.
[56] Macquarie Dictionary, 7th ed (2017) page 8.
[57] Oxford English Dictionary, 2nd ed (1989) vol 1 page 72.
[58] See [60] above.
[59] See [61] above.
[60] [1998] HCA 28, (1998) 194 CLR 355.
[61] At [95]. (Citation omitted)
[62] [2004] NSWCA 422, (2004) 61 NSWLR 707.
[63] At [56].
[64] (1998) 194 CLR 355.
[65] At [93], [98]-[100]. (Citation omitted)
[67] At 13.
[68] Macquarie Dictionary, 7th ed (2017) page 1116.
[69] Macquarie Dictionary, 7th ed (2017) page 1115-1116.
[70] Macquarie Dictionary, 7th ed (2017) page 1532.
[71] Macquarie Dictionary, 7th ed (2017) page 932.
[73] At [93]-[94]. (Emphasis in original)
[74] (1998) 194 CLR 355.
[76] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41 per Mason J (with whom Gibbs CJ and Dawson J agreed) and 55-56 per Brennan J (with whom Deane J agreed).
[77] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41 per Mason J (with whom Gibbs CJ and Dawson J agreed).
[79] At 345-346. (Emphasis in original)
[80] [2010] NSWCA 145, (2010) 174 LGERA 67.
[81] At [102]-[103] per Tobias JA (with Basten JA and Handley AJA agreed).
[82] (1998) 100 LGERA 365 at 374 per Stein JA (with whom Mason P and Handley JA agreed).
[83] [1999] NSWCA 134 at [30] per Stein JA (with whom Powell and Giles JJA agreed).
[84] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J (with whom Hayne J agreed); LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [145] per North, Logan and Robertson JJ.
[86] At 335.
[87] At 346-347.
[88] See Parramatta City Council v Hale (1982) 47 LGRA 319 at 355 per Moffitt P; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374 Stein JA (with whom Mason P and Handley JA agreed); Franklins Limited v Penrith City Council [1999] NSWCA 134 at [30] per Stein JA (with whom Powell and Giles JJA agreed) (discussed above).
[90] [2010] NSWCA 145, (2010) 174 LGERA 67.
[91] See for example Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374 per Stein JA (with whom Mason P and Handley JA agreed); Franklins Limited v Penrith City Council [1999] NSWCA 134 at [30] Stein JA (with whom Powell and Giles JJA agreed).
[92] See Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374 per Stein JA (with whom Mason P and Handley JA agreed); Franklins Limited v Penrith City Council [1999] NSWCA 134 at [30] Stein JA (with whom Powell and Giles JJA agreed).
[93] Akpan v Minister for Immigration and Ethnic Affairs [1982] FCA 46; (1982) 58 FLR 47 at 50 per Sheppard J; Brunetto v Collector of Customs [1984] FCA 383; (1984) 4 FCR 92 at 97-98 per Toohey J; Walsh v Parramatta City Council [2007] NSWLEC 255, (2007) 161 LGERA 118 at [63] per Preston CJ.
[94] Coal Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 at [31] per Gleeson CJ, Gaudron and Hayne JJ.
[95] Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at [23], [24], [28] and [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] and [90] per Gageler.
[96] (2013) 249 CLR 332.
[97] At [25]. (Citations omitted)
[98] At [72] and [75]-[76].
[99] At [105]. (Citation omitted)
[100] [1986] HCA 40; (1986) 162 CLR 24.
[101] At 31. (Citation omitted)
[103] [2007] NSWCA 333; (2007) 161 LGERA 230 at [132] per Tobias JA (with whom Mason P and Hodgson JA agreed).
[104] [2013] NSWCA 169 at [145] per Gleeson JA (with whom Emmett AJA and Preston CJ at LEC agreed).
[105] Gillbank v Bloore (No 2) [2012] NSWLEC 273 at [53]- [54] per Pain J; Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191, (2015) 213 LGERA 103 at [88] per Pain J; Dougherty Bros Pty Ltd v Outline Planning Consultants [2016] NSWLEC 72, (2016) 216 LGERA 144 at [44] per Pain J.
[107] At [16].
[109] Halsbury’s Laws of England 5 ed (2012) vol 55 [111]; Halsbury’s Laws of Australia vol 14 [225-275]; State Government Insurance Commission v Tredwell [1979] HCA 40; (1979) 142 CLR 617 at 658 per Gibbs J and 661-662 per Mason J.
[110] Halsbury’s Laws of England 5 ed (2012) vol 55 [111]; Halsbury’s Laws of Australia vol 14 [225-275]; Eyre v New Forest Highway Board (1892) 56 JP 517 at 517 per Wills J.
[111] Halsbury’s Laws of England 5 ed (2012) vol 55 [111]; Halsbury’s Laws of Australia vol 14 [225-275]; R v Mellor [1830] EngR 673; (1830) 109 ER 699 at 700 per Littledale J.
[112] Halsbury’s Laws of England 5 ed (2012) vol 55 [111]; Halsbury’s Laws of Australia vol 14 [225-275]; Fortune v Wiltshire Council [2012] EWCA Civ 334 at [12] per Lewison LJ.
[113] Halsbury’s Laws of England 5 ed (2012) vol 55 [111]; Halsbury’s Laws of Australia vol 14 [225-275]; Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84 at 92 per Young J.
[114] Halsbury’s Laws of England 5 ed (2012) vol 55 [115]; Halsbury’s Laws of Australia vol 14 [225-295]; Rapley v Martin (1865) 4 SCR (NSW) L 173 at 181 per Stephen CJ.
[115] Halsbury’s Laws of Australia vol 14 [225-285]; Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84 at 92 per Young J.
[116] Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 74 per Windeyer J (with whom Dixon CJ and Kitto J agreed).
[117] International Tea Stores Company v Hobbs [1903] 2 Ch 165 at 172 per Farwell J; City of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 74 per Windeyer J (with whom Dixon CJ and Kitto J agreed).
[119] A new subsection 18(1a) was inserted to provide that the purposes for which land may be dedicated include the management of land in accordance with a specified management plan, corresponding with section 12 which empowered the Minister to develop a management plan for the management of Crown land. A new subsection 19(1a) was inserted to require, where another Minister is the custodian of dedicated lands and has granted a lease, the Minister’s consent before revoking a dedication during the term of the lease. A new section 21 was substituted for the previous version to remove the requirement for an instrument to be published in the Gazette. A new section 22A was enacted addressing the grant of licences of dedicated land.
[120] [1926] HCA 23; (1926) 38 CLR 74.
[121] [2016] HCA 50, (2016) 339 ALR 367 at [43] per French CJ, Kiefel, Bell and Keane JJ and 171] per Nettle and Gordon JJ. See [699] and [701] below.
[122] At 91. (Citations omitted, emphasis added)
[124] At 74 and 77. (Emphasis added)
[125] [2012] NSWCA 358; (2012) 84 NSWLR 219.
[126] At [20], [22], [26], [37].
[127] [2016] HCA 50; (2016) 339 ALR 367
[128] At [43], [61]. (Emphasis added)
[129] At [65].
[130] At [171].
[131] Macquarie Dictionary, 7th ed (2017) page 400.
[132] Oxford English Dictionary, 2nd ed (1989) vol 4 page 355-356.
[133] [2012] NSWCA 358; (2012) 84 NSWLR 219.
[134] See [698] above.
[135] [1926] HCA 23; (1926) 38 CLR 74.
[136] [2016] HCA 50; (2016) 339 ALR 367 at [43] per French CJ, Kiefel, Bell and Keane JJ and [171] per Gordon and Nettle JJ.
[137] At 91.
[138] [1913] HCA 33; (1913) 16 CLR 404.
[139] The Attorney-General for New South Wales v Williams [1915] UKPCHCA 1; (1915) 19 CLR 343.
[140] At 429-430. (Citations omitted)
[141] At 433. (Citations omitted)
[142] At 462-463.
[143] At 467.
[144] [1959] HCA 63; (1959) 102 CLR 54.
[145] At 467.
[146] Harold Parrish and Patrick Freeman, Pratt and Mackenzie's Law of Highways (Butterworth & Co, 19th ed, 1956) 48-50; Benfieldside Local Board v Consett Iron Co. Ltd. (1877) 3 Ex D 54 at 64 per Kelly CB; McCarron v Noske Bros Pty Ltd [1929] SAStRp 54; [1929] SASR 433 at 440-441 per Richards J; Attorney-General ex rel Australian Mutual Provident Society v the Corporation of the City of Adelaide [1931] SAStRp 13; [1931] SASR 217 at 229-230 per Murray CJ; The Corporation of the City of Adelaide v Attorney General for South Australia [1931] HCA 48; (1931) 45 CLR 517 at 532-533 per Starke J (with whom Evatt J agreed).
[147] [2012] NSWCA 358; (2012) 84 NSWLR 219.
[148] At [5], [23]-[24], [37]-[38].
[149] [2016] HCA 50; (2016) 339 ALR 367.
[150] At [43], [61]. (Emphasis added)
[151] [1913] HCA 33; (1913) 16 CLR 404.
[152] [1981] HCA 50; (1981) 149 CLR 27.
[153] At 35-36. (Citation omitted)
[154] At 68-74.
[155] At 74.
[156] Originally the Council’s predecessor the Corporation of the City of Woodville.
[157] Originally the Council’s predecessor the City of Woodville.