Posted on November 18, 2014 by Megan Hawley

Coastal Reform – Has the Tide Finally Turned?

On Monday 17 November 2014 the Minister for the Environment Rob Stokes MP announced a reform package for coastal hazards involving the repeal of the Coastal Protection Act 1979 and a new coastal management act. The major aspects of the reform package as announced appear to be a step in the right direction, and to remedy some of the issues which arose with this Government’s previous reforms in respect of coastal hazards.

The Media Release issued by the Minister states that the 3 major aspects of the proposed reforms are:

• replacing the current laws with less complex laws which are a ‘better fit’ with land use planning and local government legislation;
• new arrangements to better support council decision making, including a new manual and improved technical advice; and
• developing a clear system for funding and financing of coastal management actions.

I have previously expressed concerns (see my blog Winding back of coastal protection laws) that the government’s decision to move away from sea level rise benchmarks placed an unacceptable burden on local government to carry out their own scientific investigations, and increased the risks that local government could be found liable in negligence.

The development of a new manual and improved technical advice would assist councils in this regard. In particular, if the manual is adopted for the purposes of s733 of the Local Government Act 1993, it would assist in councils being able to rely on the ‘good faith’ defence in that section in respect of planning decisions and other actions regarding coastal hazards based on the manual.

A key concern with all coastal hazard issues is the allocation of risks. Given that local government is the key decision maker in respect of planning decisions in the coastal zone, the risks arising from coastal hazards fall primarily on either the property owner, or the relevant local council.

To protect themselves from negligent liability and the costs of litigation (including development appeals), the best approach for councils is to restrict development on land subject to current or projected future coastal hazards through environmental planning instruments. However, this can result in sterilisation of the coastal zone, and clearly would not be welcomed by property owners.

The alternative to planning solutions to coastal hazards is the expenditure of significant amounts of money in the coastal zone, either on land buy back schemes or coastal protection works. For that reason, any funding from State government must be welcomed.

I will follow with interest the progress of the new reforms. As always the devil is in the detail, and as we learned from the proposed planning reforms in 2013, the Government’s public statements regarding proposed reforms do not always accurately reflect the true effect of those reforms.

The exposure draft bill for the new coastal management legislation is also not proposed to be released until mid 2015. There is a state government election to be held before then, so whether the reforms ever see the light of day remains to be seen.

On 13 November 2014, the Department of Planning & Environment also released a planning circular regarding Coastal notations on section 149 planning certificates.

See my blog Coastal Hazard Risk – Information on s149 Certificates in respect of the draft of that circular.

Some changes have been made to the draft circular, particularly in the background and explanatory information in the circular.

Also the published circular recommends that notations on planning certificates refer to the study which identifies the coastal hazards the subject of the notation, including the date of the study. This is to reflect the changing nature of the science, and the fact that the risk of coastal hazards can change over time.

Otherwise, the recommendations to councils in  the published circular are similar to those proposed in the draft circular and require notations on planning certificates to make a distinction between current and future hazards, notation of hazards to be made on s149(5) certificates where the information held by the council is accurate and reliable when assessed by a competent process, and adoption of a policy where constraints on development are warranted, which would then be noted on 149(2) certificates.

The Minister’s media release can be viewed from the website of the Office of Environment & Heritage here.

The planning circular published by the Department of Planning and Environment can be viewed from the Department’s website here.