Posted on October 22, 2020 by Katie Mortimer and Megan Hawley 1

Managing Coastal Hazards – Time Limited Conditions of Consent

Time limited conditions of consent can be used to restrict the period within which a development consent operates, and may be used as a tool to allow for the occupation of coastal lands until they are compromised by coastal hazards.

We have previously blogged about decisions that cast doubt on whether the Court would uphold time limited consents and consider them to be appropriate (the Ralph Lauren and Newton decision). In a recent case, the sole issue for the Court’s determination was whether a condition limiting the life of coastal protection works to 60 years should be deleted from a development consent. The Court distinguished these circumstances from those in Ralph Lauren and Newton and considered that the time limited condition was appropriate.

This is the first decision of the Court we are aware of that has embraced a time limited condition in respect of coastal hazards.

The case gives consent authorities some confidence that time limited conditions of consent may be appropriate and upheld by the Court, albeit possibly in limited circumstances, and can be used as a tool to manage development on land that is subject to coastal hazards.

Facts

The land the subject of the proceedings fronts Collaroy-Narrabeen Beach on Pittwater Road and is located in a high risk coastal zone area. The area has a long history of ad-hoc coastal protection works.

The proceedings related to a modification application lodged by the Applicant that sought, amongst other things, the deletion of a condition that limited the life of coastal protection works on the land to 60 years (Condition).

The Condition provided a mechanism for the coastal protection works (Works) to be reviewed, and the operation of the development consent extended past the 60 year period if the Works remained structurally sound. If the steps provided by the Condition were not taken, then the Works would become unlawful at the end of the 60 year period.

Section 27 of the Coastal Management Act 2016

The Condition noted that it was imposed in line with s27 of the Coastal Management Act 2016 (CM Act) to allow a mechanism to prevent the Works from ever unreasonably limiting public access to or use of the beach, and from posing a threat to public safety.

Section 27(1) of the CM Act relevantly provides:

‘(1)  Development consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that—

(a)  the works will not, over the life of the works—

(i)  unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or

(ii)  pose or be likely to pose a threat to public safety, and

(b)  satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works—

(i)  the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works,

(ii)  the maintenance of the works.’

The Court’s Findings 

Was the Condition Justified? Consideration of s27 CM Act

The Applicant argued that:

• imposing the Condition was not necessary to ensure that the precondition in s27 of the CM Act could be met,
• satisfaction of that precondition must be directed to the development for which consent had been sought in the DA, and
• the satisfaction required under s27 could not rest on a condition of consent, but rather the proposed development itself should satisfy the precondition.

In the Ralph Lauren case, Preston CJ had held that the consent authority could not impose a time limited condition in order to satisfy the preconditions in s55M of the Coastal Protection Act 1979 (which was in similar terms to s27(1)). This informed the third of the Applicant’s arguments.

Unlike in the Ralph Lauren case, the Works in this case were proposed entirely on private land, and the Applicant argued that this meant they would never threaten public safety or restrict public access. Also this case related to a modification application, in respect of which the Court did not technically need to be satisfied that the precondition was met.

The Court found the Condition to be justified and refused to delete it from the development consent.

Pain J found that the Condition responded directly to the requirements of s27(1)(a)(ii) of the CM Act, and was imposed so that Council could be satisfied the Works complied with that requirement of the CM Act [being that satisfactory arrangements had been made by condition for the maintenance of the works]. The Condition was in accordance with the design life identified in the coastal engineering report accompanying the DA.

The Court found that on the Applicant’s case, if the Condition had not been imposed, Council would have been obligated to refuse development consent if it was not otherwise satisfied that the integrity of the Works would be maintained indefinitely and beyond the 60 year period.

Was the Condition Necessary? 

The Applicant argued that due to a proposed Seawall Maintenance Management Plan, the Works would be in good repair in 60 years time and the Condition was therefore unnecessary.

The Court disagreed and accepted the evidence of Council’s expert that based on current knowledge, 60 years was the most appropriate period after which to consider whether there was a need for the Works to be adapted due to changes in the environment. The Condition was therefore necessary.

Was the Condition Unreasonable? 

The Applicant submitted the Condition was unreasonable as it undermined the purpose of the development consent, being to protect the Applicant’s property, and it was unreasonable for the Applicant to face the spectre of needing to remove the Works in 60 years’ time.

The Court rejected this argument. Pain J considered that the Condition was designed to create a mechanism for regular review to ensure that the Works achieve the objective of protecting the Applicant’s property in perpetuity.

See our earlier blog on Newtown here and Ralph Lauren here.

You can read this case here: Salama v Northern Beaches Council [2020] NSWLEC 143.

If you’d like to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Megan Hawley on 8235 9703.