Posted on February 5, 2014 by Megan Hawley

Coastal Hazard Risk – Information on s149 Certificates

The Department of Planning has released a draft Planning Circular (Draft Circular) regarding notations on s149 certificates in respect of coastal hazards.

Under s149 of the Environmental Planning & Assessment Act 1979 (EPA Act) application can be made for a planning certificate in respect of land. Certain prescribed information must be included on a planning certificate under s149(2), and a council can include advice on other relevant matters regarding the land under s149(5).

Importantly, when land is sold, the contract for sale must contain a planning certificate which contains the information required under s149(2) but not any advice provided under s149(5).

In respect of coastal hazards, whilst  s149(2) requires a planning certificate to contain some information regarding coastal protection works, and whether the Minister’s concurrence is required for certain development, it is not required to state whether the land is affected by coastal hazards unless the relevant council had adopted a policy which restricts development as a result of those hazards.

This means that generally, councils provide information regarding coastal hazards only under s149(5).

The Draft Circular is primarily directed at a recommendation that councils ensure that any advice provided under s149(5) distinguishes clearly between coastal hazards which currently affect the land, and those that are projected to affect the land in the future as a result of climate change and sea level rise.

The Draft Circular also contains 3 guiding principles for the councils in respect of s149 certificates and coastal hazards:

• if information is not sufficiently accurate, complete and reliable, do not provide advice in respect of that information under s149(5);
• if information is reliable, provide the advice under s149(5); and
• if information is reliable, council should adopt a policy restricting development as a result of the hazard, and this policy would then need to be included on a certificate under s149(2) .

I would agree with the general directive of the Draft Circular. Section 149 certificates must be accurate. If they are not, the council issuing the certificates could be exposed to damages claims. Therefore the certificates should make it clear what is a current and future hazard.

The first guiding principle is really directed at ensuring that there is no adverse affect on property values by councils issuing certificates suggesting a risk exists if there is no reliable basis for that suggestion.

The difficulty for councils, particularly since the State Government moved away from the statewide benchmarks for sea level rise, is that councils need to develop their own models to assess coastal risks. This means that many councils may not currently have accurate and reliable information.

The media release issued in respect of the Draft Circular states that the State Government is ‘considering the best and most suitable way to provide technical support for local councils in interpreting and translating new scientific findings, and assist them in developing strategies, infrastructure planning and appropriate risk management related to sea level rise and its impacts’.

Until this occurs, there will continue to be uncertainty regarding risks from sea level rise and coastal hazards.

If reliable information does exist, then I agree that it should be included on a certificate under s149(5), and a policy should be adopted to manage the risk through restricting development. This would overcome some of the issues faced by the council in the case of Newton and Anor v Great Lakes Council [2013] NSWLEC 1248, which was the subject of my recent blog Reasonableness of Conditions of Consent to Protect Against Sea Level Rise.

Submissions can be made on the Draft Circular until 3 March 2014.