Australia: NSW Government introduces further coastal management reforms

Last Updated: 28 November 2016
Article by Claire Smith and Tom Dougherty

Most Read Contributor in Australia, November 2017

A new coastal management policy for NSW will balance social, economic and environmental interests and provide adaptable and consistent State-based development controls.

On Friday 11 November, the NSW Government released a draft State Environmental Planning Policy (Coastal Management) 2016 (Coastal Management SEPP) for public comment.

The new State environmental planning policy (SEPP) is part of the NSW Government's overhaul of managing its coastline and follows the introduction of the Coastal Management Act 2016. The Act received assent on 7 June 2016 and will commence at a date following public exhibition of the Coastal Management SEPP.

A range of development controls have been introduced as part of the draft Coastal Management SEPP that aim to protect and manage sensitive coastal environments, mitigate coastal hazard risk and guide appropriate development in coastal locations.

The draft Coastal Management SEPP also simplifies the regulatory framework for coastal management and consolidates provisions under the existing SEPP No 14 - Coastal Wetlands, SEPP No 26 - Littoral Rainforests and SEPP No 71 - Coastal Protection. Each of the existing SEPPs will be repealed on commencement of the Coastal Management SEPP.

The public consultation period for the Coastal Management SEPP and associated maps will close 5.00pm, 23 December 2016.

A new "coastal zone"

The Act redefines the NSW "coastal zone" from a single fixed area along the State coastline to four coastal management areas with separate development controls.

Land in NSW may be subject to multiple coastal management areas, requiring consideration of more than one set of development controls under the Coastal Management SEPP.

The new coastal management areas and an overview of the applicable development controls are outlined below.

Coastal wetlands and littoral rainforests areas

New mapping of the coastal wetlands and littoral rainforests areas (based on state-level mapping) includes:

  • areas of hydrological and floristic coastal wetland characteristics or littoral rainforests and adjoining land;
  • improved information from studies conducted by the Department of Planning and Environment, University of NSW, NSW Office of Environment and Heritage and NSW Department of Primary Industries (Fisheries); and
  • Sydney metropolitan region; and
  • a 100m proximity area for coastal wetlands and littoral rainforests.

Key development controls

Development which satisfies requirements in the Coastal Management SEPP is permitted in this area.

Development within this area is "designated development", requiring an environmental impact assessment to support a development application (DA).

Development identified in "exempt development" in planning instruments in this are unaffected.

Coastal vulnerability area

New mapping of the coastal vulnerability area includes local coastal hazard mapping undertaken by a number of local councils (as adopted in the relevant local environmental plans (LEPs) and development control plans).

Local councils that have not undertaken local coastal hazard mapping will do so over the next five years.

Key development controls

Development which satisfies requirements in the Coastal Management SEPP is permitted in this area.

Coastal environment area

New mapping of the coastal environment area (based on defined distances around bodies of water) includes:

  • State waters and estuaries and a 100m landward area (and upstream to 1km beyond the Highest Astronomical Tide of the estuary);
  • coastal lakes and coastal lagoons and a 500m landward area; and
  • sensitive coastal lakes and coastal lagoons and a 500m landward area, plus any additional catchment area.

Key development controls

Development which satisfies requirements in the Coastal Management SEPP is permitted in this area, including a consideration of environmental values of the area.

Consent authorities must consider a number of criteria in determining a DA, including:

  • protection of the environment, water quality, native vegetation, fauna and their habitats and Aboriginal cultural heritage and places;
  • incorporation of water sensitive design; and
  • protection of the surf zone.

Coastal use area

New mapping of the coastal use area (based on defined distances around bodies of water) includes 1km landward of coastal waters, estuaries and coastal lakes (except for particular areas, eg. Sydney metropolitan region)

Key development controls

Development which satisfies requirements in the Coastal Management SEPP is permitted in this area, including consideration of the specific public interest in coastal areas.

Proposals must consider and address public interest criteria, including:

  • maintaining or improving public access to beaches, foreshores and headlands;
  • minimising overshadowing, wind funnelling and loss of views;
  • ·no detraction from the coastal scenic nature; and
  • protecting Aboriginal cultural heritage and the surf zone.

Coastal protection works

Under the Act, coastal protection works includes "...activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes seawalls, revetments, groynes and beach nourishment".

These works may be carried out by public authorities and other persons (eg. land owners).

Public authority

Coastal protection works may be carried out without development consent if the works are:

  • identified in the relevant coastal management program (CMP) (or a coastal zone management plan (CZMP) under the Coastal Protection Act 1979 (CP Act) that continues to have effect under clause 4 of Schedule 3 to the Act), or
  • beach nourishment, or
  • the placing of sandbags for a period of not more than 90 days, or
  • routine maintenance works or repairs to any existing coastal protection works.

Coastal protection works may be carried out with development consent in any other case.

Other persons

Coastal protection works may be carried out with development consent.

The draft Coastal Management SEPP also permits emergency coastal protection works. Emergency works allow for "the placement of sand, or the placing of sandbags for a period of not more than 90 days, on a beach, or a sand dune adjacent to a beach, to mitigate the effects of wave erosion on land". These works are considered to be exempt development and may be carried out by or on behalf of a public authority. The emergency works must be carried out in accordance with a coastal zone emergency action sub-plan (or a CZMP under the CP Act containing an emergency action sub-plan that continues to have effect under clause 4 of Schedule 3 to the Act).

Impact on property rights

The NSW Government has highlighted that development is still permissible in all areas of the coastal zone and that the Coastal Management SEPP does not rezone land. Land that is wholly or partly in the coastal zone will be subject to the Coastal Management SEPP.

Any proposed zoning changes by local councils will now need to be consistent with the Act and other State-based policies. Proponents seeking rezoning of land use zones under a LEP will need to take extra steps when preparing planning proposals. Proponents must now ensure that a planning proposal gives effect to and is consistent with:

  • the objectives of the Act and relevant coastal management area/s;
  • the NSW Coastal Management Manual and toolkit;
  • the NSW Coastal Design Guidelines 2003; and
  • any relevant CMP that has been certified by the Minister that applies to the land (or any CZMP under the CP Act that continues to have effect).

Additional development restrictions may also apply to specific coastal management areas (eg. a planning proposal must not rezone land to enable increased development or more intensive land use within a coastal wetland and littoral rainforest area).

Next steps

The DPE will continue to consult with local councils and the public regarding identification of relevant coastal hazards for inclusion in the coastal vulnerability area.

Following the public consultation period, the DPE will consider all submissions and may make further amendments to the draft Coastal Management SEPP and accompanying maps. The Coastal Management SEPP will commence when published on the NSW legislation website.

The maps forming part of the Coastal Management SEPP will be refined over time and updated as more information becomes available. The Coastal Management SEPP will also be subject to review in the first year of commencement and at least every five years following commencement.

Supporting instruments, including a new Coastal Management Manual and toolkit, will assist councils to identify and manage coastal management issues.

RELATED KNOWLEDGE

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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