Coastal reforms in New South Wales - a legislative sea-change - Environmental Law

Key Points:

NSW landowners and developers will need to be aware of the Coastal Protection and Other Legislation Amendment Act 2010 as it may affect potential coastal developments and the way in which works are carried out on coastal lands.

Last August we highlighted some of the changes proposed by the Coastal Protection and Other Legislation Amendment Bill 2010, which substantially amended the Coastal Protection Act 1979 (NSW). Given that the legislation commenced on 1 January 2011, we outline some of the principal changes to coastal protection reform including:

creation of the Coastal Panel and Coastal authorities;
changes to the preparation of Coastal zone management plans;
obtaining development consent for coastal protection works;
certification of emergency coastal protection works; and
powers for a Coastal authority to impose Orders.

For landowners and developers it will be important to be aware of these changes as they may affect potential coastal developments and the way in which works are carried out on coastal lands.

The Coastal Panel

Under the revised Coastal Protection Act (CP Act), a new NSW Coastal Panel will be established.

The primary role of this Panel will be to advise the NSW Minister for the Department of Climate Change, Environment and Water (DECCW) and local councils on issues concerning coastal management as well as being given powers in certain circumstances to be able to approve temporary or permanent coastal protection works. The Panel will be made up of seven members appointed by the Minister.

Under the State Environmental Planning Policy (Infrastructure) 2007 (NSW), the Panel will also be the consent authority for coastal protection works (which may include sand-bagging works or the replacement / maintenance works) where the council does not have a coastal zone management plan (discussed below) in force.

Coastal authorities

Coastal authorities established under the CP Act will include the:

Minister;
Minister administering the Crown Lands Act 1989 (NSW); and
Councils within coastal zones or adjoining the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay and their tributaries.

Coastal authorities will also have the authority to appoint authorised officers who may also exercise functions as officers under the Protection of the Environment Operations Act 1997 (NSW) for the purposes of determining non-compliances and taking enforcement action under that Act.

Coastal zone management plans

Coastal zone management plans (CZMP) are prepared under the Coastal Protection Act 1979 (CP Act) and are designed to address coastal hazard risks, such as coastal erosion.

Under the revised CP Act, a council will be required to review existing CZMPs and make a new CZMP under the direction of the Minister.

A number of coastal councils have already drafted CZMPs prior to the recent changes to the CP Act and the new amendment will now enable the Minister to direct Councils to update CZMPs in line with the relevant guidelines. Where a council is required to review and update its existing CZMP the new legislative changes mandate this to be done within 12 months of being directed to do so by the Minister (or longer, as agreed by the Minister).

CZMPs will need to:

identify the risks from coastal hazards and estuary health including management of estuaries;
address management of risks arising from coastal hazards to the coastline; and
where the construction of coastal protection works have been carried out (either by Council or a landowner), an outline of the adequate maintenance of the works and the management of associated impacts of the works (such as increased beach erosion elsewhere).

To assist local councils in preparing CZMPs, DECCW have prepared a set of guidelines, the Guidelines for Preparing Coastal Zone Management Plans, which specify the minimum requirements that draft CZMPs should meet.

It will also be an offence under the CP Act to carry out work that has the effect of preventing or remediation beach erosion or for protecting property affected by beach erosion, unless the work is carried out in accordance with:

a CZMP; or
a development consent or project approval under the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act) or exempt development (not requiring statutory approval); or
an emergency coastal protection work.

The maximum financial penalty for a breach for a corporation is $495,000 or $247,000 for an individual.

Development consent for coastal protection works

The Infrastructure SEPP will also enable development such as a sea wall or beach nourishments measures to be carried out by any person, with consent, on the open coast or entrance to a coastal lake.

In circumstances where a CZMP does not apply to the land, the Panel has the function of determining any development application for such works.

Consideration of coastal protection issues by consent authorities

Costal protection impacts are now relevant matters to be assessed by consent authorities as part of planning approval process. In determining development applications, consent authorities now need to consider the provisions of any CZMP (that applies to the land which forms part of the development consent) in accordance with section 79C of the Planning Act.

The impacts of coastal processes and coastal hazards (including those under projected climate change conditions) will also be considered a additional factor to be taken into account by determining authorities under Part 5 of the Planning Act. This means that a determining authority will be required to consider CZMPs when considering the likely impact of an activity on the environment.

Emergency works

To enable local councils to implement long term coastal erosion and emergency response plans quickly, there are now additional powers under the CP Act for the Minister to direct a local council to prepare an emergency action plan (as under a CZMP) and other emergency coastal protection works. Emergency action plans (required under a CZMP) must outline the emergency actions to be carried out during periods of beach erosion including carrying out of related works.

The reforms followed the Land and Environment Court's decision in Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88 and (No 2) [2009] NSWLEC 110. In this case, Bryon Shire Council sought an injunction to restrain the landowners, the Vaughans, from rebuilding a sand bank and sandbag wall to protect their property until development consent had been obtained.

The original emergency protection works were built by Council (under its own development consent granted in 2001) but were progressively being destroyed by storms and elevated sea levels. An interlocutory injunction was granted restraining the Vaughans from undertaking works to protect their land. However, prior to the listed hearing date, the parties agreed consent orders which were subsequently made by the Court that discharged the injunction and made a number of significant declarations, including:

the 2001 consent was valid and Council was obliged to monitor, maintain and repair beach stabilisation works designed to offset the effects of coastal erosion; and
the Vaughans were entitled, but not obliged, to maintain and repair the existing beach protection works.

Under the revised CP Act, emergency coastal protection works will only be able to be carried out to protect buildings that are lawfully used for a residential, commercial or community purpose and where the distance between the building and the erosion escarpment is less than 10 metres. These works are defined as sand, or sand bags, placed on a beach or a sand dune adjacent to a beach under specific conditions at authorised locations along the NSW coastline.

Emergency coastal protection works will not require development consent, but the works will still require certification by the relevant council or DECCW. In addition to this, councils will also now be empowered to issue certificates (both conditionally and unconditionally) to permit landowners to place emergency coastal protection works and issue orders to modify / remove these works if they cause erosion impacts. This will enable emergency works to be carried out without the need to obtain formal planning approval. There is no statutory time limit prescribed for the issue of such certificates by Council. In addition, such works are intended to be temporary and must be removed within 12 months unless development consent is obtained.

Failure to install emergency coastal protection works in accordance with the CP Act will also be an offence and may attract a financial penalty. The maximum financial penalty for a breach by a corporation is $495,000 (and $44,000 for each day the offence continues) or $247,000 (and $22,000 for each day the offence continues) for an individual.

Orders to remove materials

A coastal authority will also be empowered to order the removal of materials deposited on a beach (other than emergency coastal protection works), or restrain or order the removal of a structure, if it is of the opinion that they are likely to cause:

increased erosion;
unreasonably limit public access to the beach; or
pose a risk to public safety.

Landowners and developers should also be aware that these provisions may apply to protections works installed prior to the commencement of these reforms and that failure to comply with the orders may attract financial penalty. The maximum financial penalty for a non-compliance with an order to remove for a structure or materials for corporation is $495,000 (and $44,000 for each day the offence continues) or $247,000 (and $22,000 for each day the offence continues) for an individual.

Council levies

Developers and landowners should be aware that Councils will now be able to levy an annual charge for coastal protection services on rateable land that benefits from the services under the Local Government Act 1993 (NSW). These may include coastal protection works constructed by or on behalf of the landowner, a public authority or a local council (including maintaining / repair costs).

Planning certificates

Finally, it is also important to be aware that the details from any applicable CZMPs will now be included in section 149 planning certificates under Schedule 4 of the Planning Regulation.

However, this change will only be required by councils in coastal areas, whereby the area is included in a coastal zone (as defined by the CP Act) or in an area where the land adjoins the tidal waters of the Hawkesbury River, Sydney Harbour, and Botany Bay and their tributaries.

If the local council is located within a coastal region, information relating to whether any emergency coastal protection works have taken place on the subject land will be included in the Planning Certificate (if applicable), as will any order that has been issued by the relevant council in relation to emergency works.

Implications

These changes signal a move by Government to tackle coastal erosion and future development in vulnerable coastal areas. Local councils will have increased responsibilities through the development of CZMPs to identify risks from coastal hazards and manage those risks going forward. This may be achieved in part through emergency protection works put in place by council and funded by levies. Landowners will also arguably have more flexibility to take emergency steps under the new regime. However, it is unclear, at this stage, how well the certification process will work in practice.

The inclusion of details of CZMPs in section 149 certificates will alert future buyers to coastal hazards. Coastal landholders will also need to factor in potential council levee increases to address maintenance and repair of coastal protection measures if applicable.

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Coastal reforms in New South Wales - a legislative sea-change

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