Posted on November 11, 2016 by Megan Hawley
Draft Coastal Management SEPP Released
On Friday 11 November 2016, the Minister for Planning and the Environment, Rob Stokes released the draft State Environmental Planning Policy (Coastal Management) 2016 (CM SEPP) coinciding with his address to the 25th NSW Coastal Conference.
The CM SEPP (found here) has been much anticipated, being a key document in the Stage 2 Coastal Reform Package which also comprises the Coastal Management Act 2016 (CM Act) which has not yet commenced operation, and the Coastal Management Manual, which remains in draft form. My earlier blogs on the reform package can be found here and here and here.
Maps for 3 of the 4 new coastal management areas to be established by the CM Act and CM SEPP are available. It is expected that local councils will use their own mapping to map coastal hazards which will define the coastal vulnerability area, and only some mapping is available in this respect at present.
Rather than publishing pdf versions of maps, the mapping under the CM SEPP is available through the NSW planning portal and comprises spatial data sets, a positive technological advancement for planning in NSW. The link to the maps is here.
In my paper delivered to the 25th NSW Coastal Conference on Wednesday 9 November 2016, which is available here, I stated that it was unclear to what extent the CM SEPP would include development controls which could assist councils to defend development decisions.
The draft CM SEPP does not prohibit any development.
However, in respect of the coastal wetlands and littoral rainforests area (the most sensitive of the management areas in the coastal zone), it requires development consent for certain activities (including earthworks, damaging vegetation etc) and makes that development designated development, which ensures a rigorous environmental assessment process.
Another positive inclusion in respect of the coastal vulnerability area (being the management area subject to coastal hazards), is that consideration must be given by the consent authority when determining a development application for land within this area to whether proposed buildings or works should be temporary, and whether any land use should be temporary. This should greatly assist consent authorities to defend conditions on development consents which are time limited (that is the consent is only valid for a certain number of years, or until a trigger point is reached, and buildings may be required to be removed at the end of that period). Such conditions have been recommended in various policy documents over the years in respect of management of coastal hazards, but have not previously been supported by the Land & Environment Court (see my blog here).
The inclusion in the CM SEPP of a clause dealing with considerations set out in clause 5.5 of the Standard Instrument – Principal Local Environmental Plan (PLEP) (which is to be deleted from the PLEP) gives some further strength to that provision as the CM SEPP will prevail over other environmental planning instruments to the extent of any inconsistency. Also, the consent authority now needs to be satisfied of certain matters, rather than just to have considered certain matters. This is a significant strengthening of the provision, as in the absence of any evidence of the satisfaction of the consent authority, there is no power to grant the consent.
However clause 5.5 as it was in the PLEP will not apply in its entirety to land within the coastal zone. Some of the considerations under clause 5.5 (such as in respect of biodiversity and ecosystems) will not be relevant in the coastal use area, but will be relevant to the coastal environment area. The focus of the considerations for the coastal vulnerability area, is the effect on and of coastal processes and hazards, rather than environmental impacts. This may facilitate development, or make the assessment process simpler in the coastal use area.
Another noteworthy provision of the CM SEPP is that it includes a requirement to consider a coastal management program (CMP) or coastal zone management program (CZMP) when considering whether to grant development consent to development in the coastal zone.
Currently, s79C of the Environmental Planning & Assessment Act 1979 (EPA Act) requires consideration of CZMPs when determining a development application. However the CM Act proposes to remove the reference to CZMP’s from s79C, and not to replace that reference with a reference to CMPs. I expressed concern at the coastal conference that the amendment to the EPA Act would mean that a CMP or CZMP would arguably not be relevant to development assessment without specific reference to them in s79C, and given previous decisions of the Court (see my blog here) . However the inclusion of the clause in the CM SEPP requiring consideration of those documents ensures that a CMP or CZMP remains relevant to development assessment.
Clause 19 of the CM SEPP deals with the application of provisions regarding a management area across a whole parcel of land if that parcel is subject to more than one management area. Similarly the development controls for each area apply to land ‘wholly or partly’ within the relevant management area. Clause 19 reflects s10 of the CM Act, and could, as discussed in my paper (see the link above), lead to dispute.
For example, a very large parcel of land could have a small proportion that is within the coastal wetland and littoral rainforest area, and another portion which is in one of the other management areas. There is no requirement for development consent (at least under the CM SEPP) for any works in areas other than the wetlands and littoral rainforest area.
However, in that area, development consent is required for any earthworks (for example), and that development is designated development. This means that even if the earthworks are proposed in another area of the large parcel, and may have no impact on the wetland or littoral rainforest area, development consent will be required, and an EIS will need to be prepared.
A neighbouring property could have none of its parcel within the wetland and littoral rainforest area, and hence avoid the requirement for development consent and an EIS for similar works in a similar location. Owners of large properties partially within the coastal wetland and littoral rainforest area would be advised to subdivide their land to prevent application of the controls for that area affecting the remainder of their land, before the CM Act and CM SEPP commence operation.
A new draft direction under s117 of the EPA Act has also been released to the effect that planning proposals for land in the vulnerability area and wetland and littoral rainforest area cannot propose increased development or more intensive land use on that land.
However planning proposals can seek to amend mapping of the management areas, so if sufficient information was available, a planning proposal could propose to reduce the level of protection to land by altering the mapping to a management area which permits greater development such as the coastal use area.
The CM SEPP and associated documents, including the mapping are available for public comment until 23 December 2016.