Posted on November 18, 2020 by Stuart Simington 2

Challenge to validity of coastal wetlands mapping dismissed

State Environmental Planning Policy (Coastal Management) 2018 (NSW) (SEPP) imposes restrictions or requirements on development occurring in four ‘coastal management areas‘, namely:

• Coastal wetlands and littoral rainforests area
• Coastal vulnerability area
• Coastal environment area
• Coastal use area.

Together, and under the Coastal Management Act 2016 (CM Act), the aggregate of these areas constitute the ‘coastal zone‘.

Clause 6 of the SEPP identifies the areas by  respective maps.

Clause 6(2) of the SEPP most relevantly identifies the coastal wetlands and littoral rainforests area as the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map.

Clause 6(2) further notes that the coastal wetlands and littoral rainforests area is made up of land identified as “coastal wetlands” or as “littoral rainforests” on the map and that the land so identified includes land identified as “proximity area for coastal wetlands” and “proximity area for littoral rainforest”.

Despite the above,  under s6 of the CM Act, the coastal wetlands and littoral rainforests area is specified to mean ‘the land identified by a State environmental planning policy to be the coastal wetlands and littoral rainforests area for the purposes of this Act, being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features.’

In Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281, Reysson challenged the validity of the mapping of an area identified as “coastal wetlands and littoral rainforests area” as it related to its  land at Tweed Heads.

Two main issues arose in the appeal.

Firstly, Reysson argued that in the making of the SEPP, there was no power to adopt mapping that identified land as being within the “coastal wetlands and littoral rainforests area’ unless the land did in fact display the hydrological and floristic characteristics of “coastal wetlands” or “littoral rainforests”, or adjoin such land. In turn, the Court was able to adjudicate that issue because the question was a jurisdictional fact which could only enliven the power of the Governor to make the SEPP if those factual characteristics existed. And it was alleged that they did not.

Secondly, Reysson argued that the 100 metre zone mapped as a “proximity area” on the map was not reasonably appropriate and adapted to serving the objects of the CM Act and the SEPP.  Land “adjoining” coastal wetlands was required to be reasonably and appropriately adapted to achieving the objects and aims of the CM Act and the SEPP. If not, the mapping would lack proportionality. Reysson argued that 40 metres from land displaying the relevant characteristics was an appropriate “proximity area”.

But the Court rejected both arguments.

Firstly the Court held that it had no jurisdiction to determine for itself whether land in the area meets the defined characteristics in s6 of the SEPP.

• • ‘Determining which land can and should be identified as forming part of each of these areas may and frequently will involve complex, contestable evaluative judgments. It is improbable that the legislature intended that these provisions turn on objective jurisdictional facts.’
  • ‘Whether it is appropriate for land to be identified as part of a “coastal wetlands and littoral rainforests area” involves a careful assessment of complex factors and the formation of opinions and value judgments about a range of matters… The legislature did not intend that a court would make a policy judgment of this kind.’

Secondly, the Court found that the adoption of a uniform 100m proximity zone on the State wide map was rational and proportionate as a legislative device to serve the relevant objects.

There was nothing unreasonable or disproportionate about the technique adopted in the SEPP of identifying a proximity area, or buffer, around areas identified as “coastal wetlands” understood in the context of the SEPP as a whole and the role that designating certain land as “proximity area” has in terms of engaging certain development controls  in clause 11 of the SEPP.

This was particularly so ‘in circumstances where it is used to trigger an analysis of adverse development impacts. This permits the specific factual circumstances of any mapped area to be considered in the context of a particular development application.’

The personal preference of Reysson’s experts about what they thought an appropriate “buffer” did not address proportionality according to the standard of legal validity.

A copy of the decision is available here.