Posted on November 15, 2018 by Katie Mortimer and Megan Hawley
Coastal Reforms Transitional Provisions – Coastal Management SEPP
The coastal reforms comprising the State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP) and the Coastal Management Act 2016 (Act) commenced on 3 April 2018. These reforms repealed the Coastal Protection Act 1979 (Former Act). However, the Act and CM SEPP do not automatically apply to all actions taken in the coastal zone from that date. There are transitional provisions which need to be carefully considered. This article discusses the transitional provisions in the CM SEPP, and a recent Court decision on those provisions.
In Johnston v Wollongong City Council  NSWLEC 1331 the Land & Environment Court had to consider whether the CM SEPP applied to its determination of a DA lodged before the commencement of the Act and the CM SEPP, but in respect of which the Court was only to deliver its judgment (and determine the DA) after the commencement of the Act and CM SEPP.
Provisions of the CM SEPP and EPA Act regarding DAs
Clause 21(1) of the Coastal Management SEPP states that:
‘(1) The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies.’
‘Former planning provisions’ are defined to mean:
‘(a) the provisions of each of the following Policies as in force immediately before the Policy’s repeal:
(i) State Environmental Planning Policy No 14—Coastal Wetlands,
(ii) State Environmental Planning Policy No 26—Littoral Rainforests,
(iii) State Environmental Planning Policy No 71—Coastal Protection, and
(b) the provisions of State Environmental Planning Policy (Infrastructure) 2007 that would be in force if that Policy had not been amended by this Policy.’
There are further provisions regarding development applications to the effect that the CM SEPP does not apply, and the former planning provisions do apply to DAs lodged up until 3 April 2019 where an environmental impact statement (EIS) is required to accompany the DA and to address SEPP 14 and SEPP 26 matters, and the requirements for that EIS were issued by the Secretary for the Department of Planning before 3 April 2018.
It is therefore clear that the CM SEPP does not strictly apply to a development application lodged before 3 April 2018 (and up to April 2019 in some cases) as an applicable environmental planning instrument.
However, under s4.15(1)(a)(ii) of the Environmental Planning & Assessment Act 1979 (EPA Act) a ‘proposed instrument‘ that is or has been the subject of public consultation under the EPA Act, and that has been notified to the consent authority also needs to be taken into consideration in determining a development application.
The Court was asked to determine in the Johnston case whether the CM SEPP was such a proposed instrument, and was therefore a relevant consideration when determining the DA.
Consideration of the Court
The Court accepted that the CM SEPP did not strictly apply as an instrument to the DA.
However the Court also accepted the Applicant’s argument that the wording of clause 21 of the Coastal Management SEPP precluded consideration of the SEPP as a proposed instrument under s4.15(a)(ii) of the EPA Act.
Whilst it was not discussed in the judgment, many environmental planning instruments have savings provisions which state that in respect of DAs lodged before the commencement of the instrument, the instrument is ‘taken not to have commenced‘. It is assumed the difference between that type of wording, and the wording of clause 21 (which simply says the CM SEPP does not apply), lead to the Court concluding that the CM SEPP cannot be considered as a proposed instrument.
The Court did state, however, that despite the Act not being a matter for consideration under s4.15 as a current or proposed instrument, it still had some relevance when determining a DA and could be considered as part of the public interest under s4.15(e) of the EPA Act.
Consideration of CZMPs and CMPs
Prior to the commencement of the Act, a coastal zone management plan (CZMP) made under the Former Act was a relevant matter for consideration under s4.15 of the EPA Act.
On commencement of the Act, references to CZMPs (or coastal management programs (CMPs) as they are now called under the Act) were deleted from s4.15.
A CMP, is now, however required to be considered in determining a DA under clause 16 of the CM SEPP which provides that:
‘development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land’.
In respect of those DAs made before 3 April 2018, the CM SEPP does not apply, and therefore clause 16 of the CM SEPP does not apply to make the CZMP relevant.
In any case, clause 16 only relates to CMPs, and the effect of the provisions of the Act is that a CZMP certified under the Former Act before 3 April 2018 is not a CMP, and would not be captured by clause 16 of the CM SEPP in any event.
Whilst, again, a CZMP or CMP may be a relevant aspect of the public interest to be considered under s4.15 of the EPA Act, there is no express requirement for such a plan of be considered in respect of DAs to which the CM SEPP does not apply.
If you wish to discuss this case or the coastal reforms generally, please contact Megan Hawley, Partner on 8235 9703, or via email@example.com