Posted on January 29, 2019 by Katie Mortimer and Megan Hawley 3

Time Limited Consents and Coastal Hazards

The Department of Planning’s publication, Coastal Planning Guideline: Adapting to Sea Level Rise, states that time limited development consents are an option to allow for the occupation of coastal lands until they are compromised by coastal hazards. Such development consents have often been considered as a way to balance a private person’s wish to develop land against risks to people and property and the potential liability which could arise for government if development consent is granted.

A recent case has cast doubt on when the Court will consider a time limited development consent to be appropriate.

Facts

Three owners of coastal land lodged separate DAs with the New South Wales Coastal Panel (now called the NSW Transitional Coastal Panel following the April 2018 coastal reforms) (Panel), seeking development consent to repair failing sea walls on Belongil Beach, Byron Bay (Works). The sea walls were located largely on public land, and were existing unlawful works.

The landowners commenced an appeal to the Land and Environment Court (Court) against the Panel’s deemed refusal of the DAs.

Precondition to grant of consent

In order to grant consent to the DAs, the Court had to be satisfied under s55M of the Coastal Protection Act 1979 (CP Act) that the Works would not unreasonably limit or be likely to unreasonably limit public access to the beach or pose or be likely to pose a threat to public safety.

The Court found that those preconditions would not be met in respect of the Works as the sea walls did unreasonably limit access to the beach. The Court did not accept that this issue was to be determined on the basis that the Works related to sea walls already in existence, so only an increase to the area of the beach restricted by the Works was relevant. The Court found that the existing sea walls were unlawful, so the grant of consent for the Works would effectively legalise the sea walls. As such the impact of the whole of the sea walls as modified by the Works needed to be considered.

Because of its conclusion that the preconditions in s55M were not met, and consent could not be granted, the Court did not need to consider a proposal by the Panel that if consent was granted a time limited condition should be imposed. However the Court made some preliminary comments in respect of the proposed condition.

Proposed Time Limit Condition

The Panel submitted that if the Court determined to grant consent to the DAs, any grant of consent should be subject to conditions limiting the duration of the consent such that the consent would no longer authorise the works after the earlier of:

1. five years (or alternatively 30 years) following the grant of consent;
2. when a whole of embayment solution [to the relevant coastal hazards] is implemented; or
3. if and when the works suffer a failure event (which is when 30% or more of the primary armour of the works is displaced as a consequence of a storm event or series of storm events),

Court’s Comments on Time Limited Consents

Firstly, the Court stated that the imposition of a time limit condition as proposed by the Panel did not overcome the requirement for the Court to be satisfied of the preconditions in s55M in respect of the DAs as lodged. The DAs did not offer a time limit, and so the Court when considering s55M had to consider the developments as proposed, without any time limit.

The task under s55M could not be satisfied by the Panel modifying the development proposed in the DAs via conditions of consent.

As the Court determined the preconditions were not satisfied, consideration of the time limit condition was not required. However, had the Court considered that consent could have been granted to the DAs as proposed (without the time limit) then a requirement for time limit conditions would likely not be justified, because the Panel would have been satisfied the development could proceed in any event.

Secondly, the Court commented that a time limited consent (particularly one limited to 5 years, or 30 years rather than a trigger) would undermine the purpose and utility of granting a development consent. The Works proposed in the DAs were to protect the landowner’s properties. If a consent required the Works to be removed after 5 years or 30 years, when no equivalent protection had been provided by other coastal protection works, the landowner’s properties would then be exposed to coastal hazards.

Concerns with Time Limited Consents 

Based on the comments of the Court in this case, the circumstances in which the Court might consider time limited consents to be appropriate could be reduced.

However in circumstances where there is no statutory precondition to the grant of consent, or where the relevant application proposes the time or trigger limit itself, the outcome could well have been different.

Another matter for consideration is that a development consent that requires the demolition or abandonment of a structure after a period of time is arguably contrary to the principles of ecologically sustainable development (as discussed by the Court in Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 418).

In practice, once a time limited consent is granted, there is also no way for a consent authority to preclude an application to modify the consent, or prevent a new development application being lodged seeking to continue the use allowed under the consent. In our view this is in fact an argument in support of a time or trigger limited consent, as it means it is not necessarily the case that the development must cease to be used or be demolished at the end of the time period. Rather it can be reassessed, and possibly allowed to continue if predicted increases in coastal hazards have not eventuated.

See the case in full here: Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207

We have also previously blogged on a time limited condition, imposed to protect against sea level rise, which was not supported by the Court (read the blog here).

Read the Department of Planning’s publication, Coastal Planning Guideline: Adapting to Sea Level Rise here.

Should you wish to discuss the issues raised in this post, please contact Megan Hawley, Partner on 8235 9703 or by email, at megan.hawley@lindsaytaylorlawyers.com.au.