Australia: The Australian NSW Government Sea Level Rise Policy Statement: What Does It Mean for Local Councils and Developers?

In the November 2009 issue of Legally Green we reported on the release of the NSW Sea Level Rise Policy Statement (Policy Statement) by the NSW Department of Environment, Climate Change and Water (DECCW), which adopts sea level rise planning benchmarks (Benchmarks) for an increase above the 1990 mean sea levels of 40cm by 2050 and 90cm by 2100. We also noted the Department of Planning's release of the draft NSW Coastal Planning Guideline: Adapting to Sea Level Rise and the two draft guides released by DECCW to assist councils in preparing and adapting to rising sea levels. A response to submissions received on the guideline and these guides is expected in early 2010.

The Policy Statement sets out the NSW Government's approach to sea level rise, the risks to property owners from coastal processes and, relevantly, provides a framework to guide councils in strategic planning and in assessing development proposals given the predicted sea level rise and the Government's commitment to helping councils manage and adapt to sea level rise.

The Implications of the Policy Statement for Local Councils and Developers

As stated in the Policy Statement, the Benchmarks are intended to guide councils in carrying out strategic planning and development assessment under the Environmental Planning and Assessment Act 1979 (EPA Act). The Policy Statement requires councils to use the Benchmarks when undertaking coastal and flood hazard assessments in accordance with DECCW's Coastline Management and Floodplain Development Manuals (Manuals). Relevantly, when preparing local environmental plans (LEP), there is a statutory requirement for councils to ensure that LEPs are consistent with and give effect to these Manuals.

Therefore, councils now need to ensure LEPs are consistent with and give effect to the Benchmarks and, as such, subsequent development under LEPs is consistent with and gives effect to the Benchmarks. Councils may also be required to notify the adoption of the Policy Statement and Benchmarks in planning certificates issued pursuant to s 149 of the EPA Act.

Developers will be required to ensure that future development proposals are consistent with the Benchmarks under LEPs and, on acquiring property, should check the s 149(5) planning certificate to identify if the relevant council has adopted the Policy Statement and Benchmarks and any other relevant plans and policies.

The Implications of the Policy Statement for Council and Developer Liability

The Policy Statement and Benchmarks may have significant implications for the liability of councils and developers.

Liability Implications

Although the Policy Statement outlines the NSW Government's commitment to assisting councils to identify and reduce risks posed by sea level rise, the Government says that it has and accepts no liability under statute or common law to reduce the impacts of sea level rise on private property. In addition, the Policy Statement includes a disclaimer (Disclaimer) under which the Government, "[its agencies and employees disclaim any and all liability to any person in respect of anything or the consequences of any [actions or omissions carried out] in reliance on...any part of [the Policy]".

However, this does not change the situation for local councils which may be liable for land use planning and development assessment decisions in coastal areas, regardless of any assistance they may receive from the NSW Government in identifying the risks that bear upon those decisions. In particular, councils may be liable in common law negligence or nuisance, or under the Civil Liabilities Act 2002 for negligence or breach of statutory duty.


In some circumstances, a council may be able to rely on an exemption under s 733 of the Local Government Act 1993 (NSW) (LG Act), which provides that a council does not incur any liability in respect of any advice furnished in good faith, or anything done or omitted to be done, in good faith, relating to the likelihood of:

  • any land being flooded or the nature or extent of such flooding; and
  • land in the coastal zone being affected by a coastline hazard or the nature and extent of such a hazard.

This exemption may for example protect councils from liability resulting from actions such as approval of development on land subject to coastal hazards or sea level rise. Whether the exemption is available will depend on the specific facts of a particular situation.

In Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660, the High Court of Australia recognised that the purpose of the exemption is primarily to prevent councils from being overly cautious in providing development consent for potentially sensitive flood-prone land or land potentially affected by coastal hazard, by indemnifying such Council decisions provided that they are made in accordance with government policy at the time. The exemption may apply to Council decisions in respect of land potentially affected by sea level rise especially given that the Policy Statement states that "the Benchmarks are not intended to be used to preclude development of land that is projected to be affected by sea level rise".

In Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319, the NSW Court of Appeal determined that the Council was liable in nuisance for the discharge of water onto the plaintiff's land for approving the original development and constructing the drainage works. The Court held that the statutory exemption under s 733 of the LG Act did not apply as the Council had not acted in good faith. Notably, the Court held that the Council had not acted in good faith as, by failing to rectify the nuisance, it had disregarded the rights of the owners to the use and enjoyment of the land, and that the Council's budgetary constraints and priorities were irrelevant in this regard.

Where the exemption is the subject of litigation, the Courts may also consider the broader policy framework for combating sea level rise in determining whether councils have furnished advice or acted or omitted to act in good faith. Notably, in November 2009, the Federal Government released the Climate Change Risks to Australia's Coast: A First Pass National Assessment in which a more conservative estimate of a sea level rise of 1.1 metres by the year 2010 was selected as a plausible value for the purposes of the risk assessment. Councils may adopt this more conservative benchmark in their operations especially noting that the Policy Statement itself recognises that the accuracy of sea level rise projections will improve over time and also that NSW has the greatest exposure to risk of inundation of all the Australian states and territories.


Despite the possible availability of exemptions, councils may consider adopting a disclaimer regarding their adoption and application of the Policy Statement and Benchmarks similar to that of the NSW Government noted above.

Insurance and Indemnities

Finally, councils and developers should consider the impact of the Policy Statement and Benchmarks on the operation of any insurance or indemnities relating to their role in the development of land which may be at risk from sea level rise. In some circumstances, councils and developers may lose insurance coverage if they do not take into account the Policy Statement and Benchmarks when approving or undertaking development or making other decisions, and damage to property or personal injury occurs as a result of sea level rise or coastal and flooding hazards.

Recent Court Decision

The potential for Council liability for sea level rise and the above issues have been highlighted by the recent Land and Environment Court decision in Vaughan v Byron Shire Council (judgment yet to be published). In that case, Byron Shire Council was held responsible for maintaining beach stabilisation works designed to offset the effects of erosion caused by severe storms. This case should be carefully monitored as the Council has confirmed that, although the costs of maintaining beach stabilisation works have been covered by its insurers, further proceedings will be before the courts regarding the Council's liability for the works, especially given its policy of "planned retreat".

In this context, it is also worth noting the recently released Parliamentary Committee's report "Managing our costal zone in a changing climate" which identifies that legal liability associated with climate change is an important issue to be addressed. One of the Committee's recommendations is that the Government request the Law Reform Commission to undertake an inquiry with emphasis on the legal liability of public authorities in relation to climate change adaptation and possible climate hazards, mechanisms to ensure mandatory risk disclosure to the public about climate change risks and coastal hazards and whether there should be broader indemnification of local governments. It remains to be seen whether this suggestion will be implemented.


If you require assistance in determining how climate change and in particular, sea level rise, needs to be considered in relation to your operations, please do not hesitate to contact a member of our Climate Change team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Elisa de Wit
Felicity Rourke
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions