Posted on November 28, 2016 by Anna Sinclair

Protection of Marine Environments through new Coastal Management Reforms – opportunities and challenges

As we recently blogged, the NSW Government has released the much anticipated draft State Environmental Planning Policy (Coastal Management) 2016 (CM SEPP) for public comment as part of its broader coastal management reform package (Reform Package).

This blog looks at the opportunities under this reform package to protect the marine environment under new Coastal Management Programs (CMPs) and the CM SEPP, and highlights some challenges under this system to achieving this.

The Reform Package includes the Coastal Management Act (CM Act) (passed in June 2016 but not yet operational), the Coastal Management Manual (CM Manual) which is still in draft form, and the CM SEPP. Our previous blogs on the Reform Package can be found found here and here and here.

This blog is based on a presentation I gave to the 25th NSW Coastal Conference on 9 November 2016, prior to the release of the CM SEPP.

Protection of the marine environment under Coastal Management Programs

An argument I put forward at the Coastal Conference is that under the new CM Act and CM Manual there may be greater opportunity for local councils in implementing CMPs (which are to replace Coastal Zone Management Plans (CZMP) prepared under the Coastal Protection Act 1973) to protect the marine environment.

The ‘marine environment’ is essentially the areas of the coastal zone now referred to as Coastal Wetlands and Littoral Rainforests areas and Coastal Environment areas (coastal waters, estuaries, coastal lakes, lagoons, headlands and rock platforms). These areas are defined by reference to the new mapping under the CM SEPP which is available through the NSW planning portal.

In summary, this is because:

• the requirements for preparing CZMPs were more focused on protecting and maintaining estuary health, with a lesser focus on the protection of other marine environments such as coastal wetlands, littoral rainforests and coastal waters, lakes, lagoons etc,
• estuaries and these other marine environments are now equally covered by Coastal Wetlands and Littoral Rainforests areas and Coastal Environment areas under the CM Act (as mapped under the CM SEPP),
• CMPs applying to these areas must be prepared in accordance with the CM Manual and give effect to the ‘management objectives’ of the areas,
• the management objectives for each of these areas under the CM Act expressly require the protection and improvement of these environments,
• the CM Manual is a far more comprehensive document than the Guidelines for Preparing Coastal Zone Management Plans and is underpinned by a risk-based process for identifying, preparing and responding to threats to the marine environment.

The new regime also has a greater focus on the implementation of CMPs and importantly a local council must give effect to its CMPs through its Ch 13 of the Local Government Act 1993 plans, environmental planning instruments (EPIs) and development control plans (DCPs)(s22 of the CM Act).

A concern that I raised at the Coastal Conference was that the implementation of CMPs may be hampered by the fact that there would not be a requirement under s79C of the EPA Act for a consent authority to consider a CMP when determining a development application (there is such a requirement for CZMPs). This issue is further discussed in Megan Hawley’s blog here.

This requirement is  proposed to be retained in the CM SEPP.  A development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of a CMP or CZMP that continues to have effect under the transitional provisions of the CM Act (cl 17). This ensures that planning decisions must take into account the requirements of a CMP.

A further important provision under the CM SEPP is that local councils and other public authorities will not be required to obtain development consent for any environmental protection works carried out in Coastal Wetlands and Littoral Rainforest areas, provided that the works are identified in a CMP applying to the land (cl11(3)).

This will remove unnecessary red-tape, making it easier for CMPs proposing environmental protection works and the actions required under the CMP to be implemented.

Challenges to protecting the marine environment

The coverage and protection of the marine environment is not ensured under CMPs given that a local council may prepare a CMP and only must if required by the Minister.

Further, CMPs may be made in relation to the whole or any part of the area in the coastal zone.

Given that their coverage and content is driven by local councils and their communities, who set the priority management issues and determine what actions will be taken to address those issues, the reality of budget and capacity constraints of councils may mean that some sections of the marine environment cannot be covered by CMPs, or that coastal hazard issues in Coastal Vulnerability areas are considered of a greater priority.

Requirements under the CM SEPP that may address these challenges

The requirements of the proposed CM SEPP are important for reducing the impacts of these challenges in coverage of CMPs, by containing development controls for all coastal management areas that meet the management objectives under the CM Act.

This ensures that even where a CMP does not apply to land within the Coastal Wetlands and Littoral Rainforest or Coastal Environment areas (and therefore there are no EPIs or DCPs that give effect to a CMP) any development occurring on this land must still meet the management objectives of these areas.

Coastal Wetlands or Littoral Rainforests

Part 2, Division 1 of the CM SEPP sets out the development controls for Coastal Wetlands or Littoral Rainforests and will replace the State Environmental Planning Policy No 14 – Coastal Wetlands (SEPP 14) State Environmental Planning Policy No 26 – Littoral Rainforests (SEPP 26). CM SEPP repeals SEPP 14 and SEPP 26.

Notable changes have been made to the matters that must be considered before consent is granted for development in these areas. For example, under SEPP 14 a range of matters needed to be considered including environmental impacts, whether adequate safeguards were proposed and whether objectives of national wetland policies were met.

In contrast, a ‘catch-all’ provision is proposed under cl 11(4) of the CM SEPP providing that a consent authority must not grant consent for development unless it is satisfied that ‘sufficient measures have been, or will be, made to protect the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest‘.

That being said, like under SEPP 14 and SEPP 26, development in these areas is still declared to ‘designated development’ (cl11(2)) which requires an EIS be prepared and third parties be notified, which may ensure that all relevant environmental impacts continue to be properly considered and addressed.

A further important change is that under SEPP 14 and SEPP 26 a council can only grant consent to development on land near a coastal wetland or littoral rainforest with the concurrence of the Director of the Department of Planning. The Director of National Parks and Wildlife (NPW) must also be given a copy of the development application and any representations considered before the granting of development consent.

There is no similar requirement under the CM SEPP leaving the decision to grant consent solely to the discretion and expertise of local councils. This proposed change may prove controversial given the requirement for the Director’s concurrence and representations of NPW to be considered arguably adds an important oversight to a local council’s decisions in respect of development in these environmentally sensitive areas.

Coastal Environment areas

The CM SEPP mapping indicates that the Coastal Environment areas outside the Sydney region extends from approximately 1km inland of any coastline, bay, estuary, lake or lagoon. Within the Sydney region typically 100m from these areas.

Currently, the State Environmental Planning Policy No 71 – Coastal Protection and clause 5.5 of the Standard Instrument – Principal Local Environmental Plan (PLEP) generally applies to this land. CM SEPP repeals SEPP 71 and cl5.5 is to be deleted.

Part 1, Division 3 of CM SEPP sets out the development controls that will apply to Coastal Environment areas. Whilst the development controls cover the same type of matters covered by SEPP 71 and cl 5.5 there has been important changes to the drafting and how environmental impacts must be considered.

For example, cl 5.5 prohibits a consent authority from granting development consent to land within the coastal zone unless it had ‘considered’ a range of matters relating to a range of impacts, including environmental, visual, access and amenity impacts.

In contrast, cl 14 of the CM SEPP prohibits a consent authority from granting development consent ‘unless the consent authority is satisfied that the proposed development’ is not likely to cause adverse impacts, or will not adversely impact a range of matters, including:

• is not likely to cause adverse impacts on the biophysical, hydrological and ecological environment,
• is not likley to significantly impact on geological and geomorphological
  coastal processes and features or be significantly impacted by those processes
  and features, and
• is not likely to have an adverse impact on the water quality of the marine estate.

The drafting of cl 14 reflects contemporary legislative requirements for the assessment of environmental impacts, based around the likelihood of adverse or significant impacts to the environment.

The move away from a council to simply ‘consider’ such environmental impacts without any benchmarks as to what is and what is not an appropriate impact arguably makes it easier for developers to understand what level of impact they must meet. It is also likely to promote more transparent decision-making by consent authorities in the assessment of development in Coastal Environment areas.

The CM SEPP and associated documents, including the mapping are available for public comment until 23 December 2016.

For more information, please contact Anna Sinclair, Senior Lawyer on 8235 9713 or anna.sinclair@lindsaytaylorlawyers.com.au