Posted on December 11, 2023 by Megan Hawley and Samantha Hainke
New NSW Coastal Design Guidelines and Coastal Crown Land Guidelines
The Department of Planning and Environment (Department) recently published the NSW Coastal Design Guidelines 2023 (Coastal Design Guidelines) and the Coastal Crown Land Guidelines 2023 (Coastal Crown Land Guidelines).
Coastal Design Guidelines
We previously discussed a draft of the Coastal Guidelines. However there have been changes since the draft exhibited in 2022.
The Coastal Design Guidelines are a key element of the NSW coastal management framework.
The Coastal Design Guidelines have mandatory effect in respect of planning proposals in the coastal zone. They also advise on best practice urban design in the coastal zone and are recommended to be used in that context. They are also consistent with requirements for coastal management plans (CMPs) and are recommended to be considered in the development of CMPs.
The Coastal Design Guidelines should also be considered when preparing regional plans as a relevant government policy (as required by s3.3 of the Environmental Planning & Assessment Act 1979 (EPA Act)) and local strategic planning statements.
The EPA Act requires planning proposals to justify a proposed local environmental plan including whether the proposed plan will comply with the requirements of any directions made by the Minister under s9.1 of the EPA Act (Local Planning Directions).
Under the Local Planning Direction 4.2 – Coastal Management, planning proposals in respect of the coastal zone must include provisions that give effect to and are consistent with a range of documents, including the objects of the Coastal Management Act 2016 (Coastal Management Act) and coastal management areas established by that Act, the Coastal Management Manual, and section 3.2 of the Coastal Design Guidelines.
In Neilson v Secretary, Department of Planning & Environment  NSWLEC 32 the Land & Environment Court held that the words ‘give effect to’ have their ordinary meaning of ‘implement, undertake or deliver’.
Section 3.2 of the Coastal Design Guidelines sets out ‘desired outcomes’ which fall within the following objectives:
- protect and enhance coastal environmental values;
- ensure the built environment is appropriate for the coast and local context;
- protect and enhance the social and cultural values of the coastal zone;
- respond to coastal hazards; and
- support sustainable coastal economies.
There are then a range of ‘requirements’ in respect of each outcome. Appendix 1 sets out which requirements are relevant to which coastal management area.
Where there is inconsistency between requirements, the Coastal Design Guidelines provide that those inconsistencies must be explained and justified in the planning proposal, in accordance with the hierarchy of coastal management areas which, from highest to lowest is:
- Coastal wetlands and littoral rainforests area;
- Coastal vulnerability area;
- Coastal environment area; and
- Coastal use area.
The outcomes and requirements are detailed, and so to ensure a planning proposal includes provisions to give effect to section 3.2 of the Coastal Design Guidelines is significant.
The Coastal Design Guidelines require the assessment checklist contained in Appendix 1 to be used to demonstrate how all relevant requirements for each planning proposal have been dealt with.
Urban Design Guidance
The Coastal Design Guidelines also provide guidance on urban design, which although it is not a mandatory requirement, provides a starting point for design ideas as well as further guidance on best-practice urban design.
The purpose of the urban design guidance is to complement other existing NSW Government publications (such as the Urban Design Guide for Regional NSW and the Apartment Design Guide) and should be used conjunctively.
Assessment authorities can also use the checklist contained in Appendix 2 to guide their consideration of a project and whether a design meets the objectives in the Coastal Design Guidelines.
The urban design guidance is not given any particular status under the EPA Act or most planning instruments (there is one local environmental plan which refers to the previous 2003 guidelines), but could be considered as part of the public interest in the determination of development applications under s4.15 of the EPA Act. The Coastal Management Manual currently refers briefly to the previous 2003 guidelines suggesting the principles of urban design in those guidelines are relevant in preparation of a CMP.
Councils may wish to consider the guidelines when preparing CMPs.
Coastal Crown Land Guidelines
The Coastal Crown Land Guidelines must be used in the administration of Crown land under the Crown Land Management Act 2016 (Crown Land Management Act) and Crown roads under the Roads Act 1993 within the coastal zone. They do not apply to certain ports and land which is governed by the National Parks and Wildlife Act 1974.
The Crown Land Guidelines seek to align decisions made under the Crown Land Management Act with the objects and principles of the Coastal Management Act.
The Coastal Crown Land Guidelines are intended to be used by departmental staff and Crown land managers (including councils) when:
- preparing other strategic plans and CMPs, including providing formal agreement to a CMP under section 15(4)(b) of the Coastal Management Act;
- assessing applications for landowner’s consent for development applications on Crown land and requiring the department to provide consent under section 23 of the Environmental Planning and Assessment Regulation 2021;
- assessing applications for issuing a tenure under the Crown Land Management Act (e.g. lease or licence applications for dredging in waterways and coastal protection works); and
- preparing plans of management under the Crown Land Management Act.
The Coastal Crown Land Guidelines provide five key principles to guide the management and administration of coastal Crown land. These principles are that:
- Crown land management should align with CMPs;
- coastal hazard risks should be considered when issuing tenures over coastal Crown land;
- coastal protection works on coastal Crown land on the open coast, should be low impact or non-structural, where feasible or practicable;
- private structural coastal protection works on the open coast should be wholly located within the boundaries of the property, the works are intended to protect; and
- non-Commercial dredging on coastal Crown land should be in the broader public and/or environmental interest.
The Coastal Crown Land Guidelines provide substantial supporting material on how to implement each of these principles in practice.
The Coastal Design Guidelines can be found here.
The Coastal Crown Land Guidelines can be found here.
The Local Planning Direction can be found here.
Our previous article can be found here.
If you require advice on the Coastal Management Framework, or if you have any questions about this article, please leave a comment below or contact Megan Hawley on 02 8235 9703.