Posted on January 30, 2020 by Anzer Khan and Megan Hawley

Is a Proximity Area for Coastal Wetlands also Environmentally Sensitive Land under the Seniors Housing SEPP?

In the recent case of S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North v Northern Regional Planning Panel (No 2) [2019] NSWLEC 199, the Land and Environment Court (‘the Court’) considered whether the land identified as a ‘proximity area for coastal wetlands’ under the State Environmental Planning Policy (Coastal Management) 2018 (‘Coastal SEPP’) was ‘environmentally sensitive land‘ under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (‘Seniors Housing SEPP’).

Background

The Applicant lodged a development application (‘DA’) with Ballina Shire Council (‘Council’) in September 2016 for a seniors living development on land on the north coast of NSW at Skennars Head (‘the Property’). A DA modification was lodged in May 2018.

The Seniors Housing SEPP required a valid site compatibility certificate (‘SCC’) to be issued before consent could be granted to the DA. The Applicant had previously obtained an SCC but it had expired in March 2017 and so the Applicant applied for a new SCC in July 2018. In March 2019, the Panel determined to refuse to issue the SCC.

At the time the DA was lodged in 2016, the Coastal Protection Act 1979 and various State Environment Planning Policies dealing with coastal wetlands and littoral rainforests were in force (‘former planning provisions’); however, these were repealed on 3 April 2018, when the Coastal Management Act 2016 (‘CM Act’) and Coastal SEPP commenced.

Did the Property include ‘environmentally sensitive land‘?

Clause 4(6)(a) of the Seniors Housing SEPP states that it does not apply to land described in Schedule 1 (environmentally sensitive land). Schedule 1  lists as environmentally sensitive land  ‘land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions…‘ and then includes ‘coastal protection‘ and ‘natural wetland‘.

Under the Coastal SEPP, part of the  Property was identified as within the ‘coastal wetland and littoral rainforest area’ which is defined by reference to a map contained on the NSW Planning Portal.  The map distinguishes between ‘coastal wetland‘ and  ‘proximity area for coastal wetland‘, and the Coastal SEPP contains different assessment requirements for development on land identified as  ‘coastal wetland‘ and on land identified as ‘proximity area for coastal wetland‘.

There was no issue regarding the part of the Property identified as ‘coastal wetland‘ being considered to be environmentally sensitive land under the Seniors Housing SEPP, however it was argued that the proximity area was identified by a like description to those in Schedule 1 of the Seniors Housing SEPP and was therefore environmentally sensitive land, such that the Seniors Housing SEPP did not apply to that part of the Property.

The Court rejected that argument. The Court had regard to the way the map designated subcategories of that area, and the distinction between those areas in the planning controls. In particular she noted that the intent was that the proximity areas could support some development, and that by definition such areas were essentially a buffer to the coastal wetland. Whilst Pain J accepted, based on earlier authority regarding Schedule 1 of the Seniors Housing SEPP, that a wide reading of the language and construction of instruments should be carried out to determine if there was a ‘like descriptor’ to the matters in Schedule 1, and a flexible approach should be adopted, Her Honour considered that the context of the CM Act and Coastal SEPP meant the relevant identification of the land was not the overriding ‘coastal wetland and littoral rainforest area’, but the identification on the map as ‘proximity area for coastal wetlands‘. As such, those words were not a like descriptor for ‘coastal protection’ or ‘natural wetland’ as the ordinary and natural meaning of ‘proximity’ is land near or close to other land, and it was the other land which was the wetland, so the identification was only of land near a natural wetland.

An interesting point was raised in the case regarding reliance on the way the mapping on the Planning Portal worked, which contained a designation of the ‘coastal wetland and littoral rainforest area‘, and then had boxes ticked beneath it including separate boxes for coastal wetlands, and proximity areas for coastal wetlands. The Applicant argued that the ‘IT language which allows engagement with the map is not a recognised tool of statutory interpretation‘ and that as a result what the map showed interactively could not be relied on.

Pain J disagreed saying the publication of the maps on the Planning Portal was part of the statutory scheme of the Environmental Planning & Assessment Act and s1.14(14) of that Act states that a reference to a map includes the map kept in electronic form. Her Honour therefore relied on the maps as indicating that the proximity area was separate to the coastal wetlands themselves for the purposes of the CM Act and Coastal SEPP.

Transitional Provisions

The Applicant also argued the Coastal SEPP did not apply at all and could not be relied on due to cl 21 which provides that the former planning provisions and not the Coastal SEPP apply to a development application lodged but not determined by the commencement of the Coastal SEPP on 3 April 2018.

The relevant DA was made before that date and attracted the savings provision, such that the DA was to be determined under the former planning provisions. Accordingly, the Applicant argued that the “proximity area” did not exist under the former planning provisions and the Property could not therefore be environmentally sensitive land under the Seniors Housing SEPP as a result of the Coastal SEPP.

However the Court  determined that the “process of obtaining an SCC is expressed as a standalone process in cll 24 and 25 of the Seniors Housing SEPP, and is separate from the process for obtaining a development consent under s 4.12 of the [Environmental Planning and Assessment Act 1979]”.

Accordingly, Pain J held that the Coastal SEPP was relevant to whether the land was environmentally sensitive land and whether the SCC could be issued.

Implications

The case confirms that when determining whether land is identified in a certain way for the purpose of Schedule 1 of the Seniors Housing SEPP or other similar provisions, a provision identifying land in a particular way needs to be found, but the task of determining whether the way the land is identified is ‘like’ the descriptor in the other instrument is complicated, and involves more than just a comparison of the words used on the map. If the inquiry stopped at just identification of similar words, then it could be argued that in this case the fact the proximity area was part of the ‘coastal wetlands and littoral rainforests area’ would have been sufficient to say the descriptor was ‘like’ natural wetlands. However, a more substantive inquiry needs to be made.

The case is also authority for the proposition that obtaining an SCC is distinct from the grant of development consent, and savings provisions in instruments relating only to DAs may not apply where an SCC or another step is required to be satisfied before consent can be granted.

The case can be viewed here.

To discuss this post, please contact Megan Hawley on 02 8235 9703 or Anzer Khan on 02 8235 9717.