At the beginning of 2013 the City of Charles Sturt 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 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.
In February 2013 the Council commenced public consultation in relation to the proposed coastal path.
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); to 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.
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.
A small but significant majority supported the community reference group's recommendation 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.
In February 2015, on instructions by Council administration, the Council's consultant prepared a new Planning Study and a new option designated Option 2B with the path proceeding through the dunes.
The Council did not engage in public consultation 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. 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 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 Council delegated to the Council administration the power to approve variations to path alignment. The Council administration subsequently made two such variation decisions.
In September 2017 the Coastal Ecology Protection Group make a decision to initiate a judicial review with the belief that:
The Councils plan was not in accordance with the Management Plan and was inconsistent with the objective of protecting the coastal dune system and coastal vegetation.
The Council failed to comply with its own Consultation Policy.
The construction of the proposed coastal path was not permitted and was inconsistent with the dedications for some of the land.
The Community Land Management Plan did not state performance targets or how the Council proposed to measure its performance against its objectives and performance targets as required by any plan consideration, namely environmental considerations and the path decisions are consequentially unlawful.
The case was heard in the Supreme Court over 10 days over June and July 2017.
The Judgment was released on 21st September 2017.
Justice Blue held that:
- 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.
- The 1999 Local Government Act requires a council to manage land in accordance with a community land management plan, this requirement encompasses development and maintenance and is an objective one.
- The April 2016 and January 2017 path decisions are contrary to the management plan and are unlawful.
- The Council acted in breach of its consultation policy in adopting the management plan and the management plan is consequently unlawful and the April 2016 and January 2017 path decisions are consequently unlawful.
- The Council failed to comply with its consultation policy in respect of the path decisions and they are consequently unlawful.
- Construction of the proposed coastal path has not been proved to be inconsistent with the dedication purposes.
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SUPREME COURT CASE