Posted on November 13, 2015 by Megan Hawley

Coastal Management Bill 2015 – Public Consultation Draft Released

Shortly after the Minister for Planning  spoke at the NSW Coastal Conference this morning, the Government released its much-anticipated reform package for the management of the NSW coastline (Reform Package). The public consultation period in respect of the Reform Package runs until 29 February 2015.

Overview 

The Reform Package is comprised of:

• the public consultation draft of the Coastal Management Bill 2015 (Bill);
• an Explanation of Intended Effect for the proposed Coastal Management State Environmental Planning Policy (Coastal Management SEPP); and
• a draft coastal management manual (Manual).

Draft Coastal Management Bill 

The current Coastal Protection Act 1979 (CP Act) is proposed to be replaced with a new Coastal Management Act.

Significant features of the Bill include:

• A new definition of the ‘coastal zone’ which will divide the coastal zone into four coastal management areas as follows: the coastal wetlands and littoral rainforests area, the coastal vulnerability area, the coastal environment area, and the coastal use area;
• The requirement for councils to prepare coastal management programs (CMP) to replace current coastal zone management plans, and which must be implemented through local environmental plans and development control plans.
• CMPs are intended to be integrated into the Local Government Act 1993 (LG Act) as an additional component of the Integrated Planning and Reporting Framework contained in Chapter 13 of the LG Act. Relevantly, the development of a CMP will require an appropriate level of consultation not only at the local level, but also at the regional level where necessary;
• The incorporation of existing provisions in the CP Act relating to the protection of beaches and headlands from the impacts of inappropriate coastal protection works (see my comment below in this regard) together with a new condition making power in the Environmental Planning & Assessment Act 1979 (EPA Act) to enable consent authorities to impose a condition on a development consent in respect of coastal protection works to require the payment of any costs associated with rectifying potential damage caused by the coastal protection works to other property; and
• enforcement measures to be included in the EPA Act.

Proposed Coastal Management SEPP

The proposed Coastal Management SEPP will contain the statutory objectives of and map out the four coastal management areas that constitute the ‘coastal zone’.

Further, the Coastal Management SEPP will consolidate into the one document various existing provisions of environmental planning instruments relating to coastal management, including:

• State Environmental Planning Policy No 14 – Coastal Wetlands (SEPP 14);
• State Environmental Planning Policy No 26 – Littoral Rainforests (SEPP 26);
• State Environmental Planning Policy No 71 – Coastal Protection (SEPP 71);
• the provisions of the State Environmental Planning Policy (Infrastructure) 2007 that refer to the requirements for proposals for coastal protection works; and
• clause 5.5 of the Standard Instrument Local Environmental Plan (Development within the coastal zone),

and will include the guidance contained in the NSW Coastal Policy and Coastal Design Guidelines.

Draft Coastal Management Manual

The Manual is intended to provide instruction and guidance for the preparation of CMPs and to ‘promote collaboration and consultation to ensure CMPs are developed by the community for the community‘.

The Manual deals with mandatory requirements and essential elements for CMPs, the process for preparation of CMPs and a ‘technical toolkit’ which contains detailed technical advice to assist councils.

Some Preliminary Comments on the Bill

Coastal Protection Works and Enforcement

The overview of the Reform Package released by the Government states that the provisions of the CP Act regarding coastal protection works are included in the Bill.

However, the only relevant provision is proposed section 27 which provides that development consent cannot be granted for coastal protection works unless the consent authority is satisfied the works will not unreasonably limit public access to or use of a beach or headland or pose or be likely to pose a threat the public safety.

There is no longer provision for carrying out temporary coastal protection works without development consent. This will no doubt be of concern to some landowners who consider that they must retain the right to deposit materials on beaches to protect their land from imminent threats. I note, however, that the Coastal Management SEPP may deal with such works.

The proposed amendments  to the EPA Act and Environmental Planning & Assessment Regulation 2000 (EPA Reg) in the Bill support this new approach to coastal protection works.

A new provision in the EPA Reg will clarify that depositing material on a beach can constitute ‘work’ for the purposes of the EPA Act. This means that such an action is ‘development’ and can be controlled using the suite of enforcement powers under the EPA Act in respect of unlawful development. Therefore, in the absence of any provision making temporary coastal protection works permissible without development consent, carrying out such work without consent will be a breach of the EPA Act.

There is a new order proposed to be included in s121B of the EPA Act. Councils (and other authorities) will be able to issue an order requiring the recipient to ‘cease carrying out an activity on a beach or foreshore’ if that activity is being carried out in breach of the EPA Act. The order can be issued on ‘any person apparently engaged in promoting, conducting or carrying out the activity’.

There are amendments to some of the other existing types of orders which can be issued under the EPA Act to ensure they can be utilised in respect of placement of materials in public places such as beaches. Also, the power to issue orders is extended to the Minister or Secretary, or other prescribed authorities in respect of land in the coastal zone.

These new powers are a welcome tool in respect of protecting the environment and beaches from unauthorised beach protection works but as mentioned above, restrict the ability of landowners to protect their land through placement of temporary works.

Community consultation on CMP

The Bill has public participation as an object, as did the former CP Act.

Before adopting a CMP councils must consult with the community in accordance with the new Manual.

However proposed s16(3) of the Bill provides that a failure to consult does not invalidate the CMP. Therefore, a CMP will remain valid even if there was no or inadequate community consultation. Presumably, however, the Minister could, in those circumstances exercise his power to refuse to certify the CMP on the basis that it was not prepared in accordance with the Manual (see s17 of the Bill).

The Manual requires councils to prepare and implement a stakeholder engagement strategy to manage consultation with the community and other councils and authorities.

Therefore it is possible that a failure to consult would constitute a breach of the Manual.

Failure to comply with the Manual could have implications for councils’ negligent liability as compliance with the Manual is taken to constitute ‘good faith’ for the purposes of the defence in s733 of the LG Act.

Implementation of CMP

The Bill provides that councils must give effect to their CMPs through their local environmental plans and development control plans (see s22 of the Bill), and in preparation of their plans under Chapter 13 of the LG Act.

However, proposed s29 provides that a failure to do so does not render any resulting instrument or plan invalid if it does not give effect to the CMP.

The Bill proposes that the Minister for Planning be given the power to report a failure to implement the CMP to the Minister for Local Government who may consider the report in determining whether to take performance management action against the Council.

Clearly the intention is that the threat of what is in effect disciplinary action will dissuade councils from not complying with the requirement to implement the CMP. However, if a Council does breach the requirements in this regard, the planning decisions made contrary to the CMP will remain effective, with possibly adverse consequences for coastal management.

The provision does however provide councils with some comfort that if they have attempted to give effect to their CMP, members of the public will not be able to challenge local environmental plans on the basis of an alleged failure to do so.

The Manual

The preparation of a new Manual is welcomed.

Section 733 of the LG Act is proposed to be amended to make it clear that if planning decisions are made in accordance with the principles and mandatory requirements of the Manual, then a council will be taken to have acted in good faith, and have the benefit of the defence against negligent liability in that section.

For some time councils have been left in a difficult position in terms of lack of guidance and technical support in respect of their preparation of coastal zone management plans, and in the exercise of planning functions as a result of the repeal of statewide sea level rise benchmarks and amendments to various policy documents (see my earlier blog here).

The ‘toolkit’ section of the Manual is a link to numerous resources to assist with community engagement, threat and risk assessment, modelling and other matters. I will leave it to others to comment on the usefulness of those resources. However I note that part of the ‘Upcoming information’ referred to in the toolkit is technical advice on sea level rise which ‘provides a synthesis of sea level rise research applicable to NSW to provide input into coastal erosion and inundation risk assessment’. 

Whilst this information may previously have been available, its inclusion in the toolkit and Manual gives councils comfort that acting in accordance with the information will provide the benefit of the good faith defence, and may also assist councils to sell their programs to the community.

Lindsay Taylor Lawyers will carry out a more detailed review of the Reform Package and monitor the progress of the package at it proceeds through the consultation phase.

We will blog further on issues raised by the Reform Package, and in particular on the content of the proposed Coastal Management SEPP.

Access to the documents comprising the Reform Package can be found here.