Posted on February 25, 2015 by Megan Hawley

Relevance of the Coastal Protection Act to Development Assessment

In the recent case of Dunford v Gosford City Council [2015] NSWLEC 1016, the Land & Environment Court considered whether to grant development consent for the construction of a dwelling which the Council contended would not avoid or minimise risks of coastal erosion and would be impacted by coastal hazards.

The dwelling complied with the applicable planning controls which had specific and detailed provisions for development on land designated as subject to coastal hazards by the relevant Coastal Management Plan.

A new LEP and DCP had recently been adopted by the Council which contained provisions mirroring those in the applicable DCP.

The Coastal Management Plan had been adopted in 1995 and recommended that a revetment wall be constructed and prior to construction of the wall, properties in the coastal hazard zone be set back and designed to withstand storm wave erosion.

Shortly before the Court came to consider the application, the Council advertised a draft Coastal Zone Management Study (CZMS) ¬†which also recommended the construction of the revetment wall and modification of the DCP to prevent development seaward of the ‘Immediate Zone of Slope Adjustment’. Although not clear from the judgement, this likely required a greater setback than the applicable controls.

Evidence for Council was led that without the construction of the revetment wall, the security of the dwelling couldn’t be guaranteed, and was inappropriate. The applicant led evidence that the proposed construction method would adequately protect the dwelling in the absence of the revetment wall.

The Court accepted the evidence of the applicant’s expert. The first ground for doing so was that the dwelling complied with the applicable planning controls.

None of the controls in force indicated that there should be no development until the revetment wall was constructed.

The Court stated that the planning controls, including those recently adopted, must reflect the Council’s position, and the general public should be able to rely on them. The Court specifically rejected a submission that the exhibition of the CZMS should affect a moratorium on development.

The Court held that the Environmental Planning & Assessment Act 1979 (EPA Act) and applicable planning controls provided a more than suitable framework for the consideration of the application.

The decision highlights the supremacy the Court will give to adopted planning controls, including when considering coastal protection issues.

The decision is odd as the Commissioner comments that the Coastal Protection Act 1979 (CP Act) plays only a minor role in development assessment. However, s79C of the EPA Act specifically requires a relevant coastal zone management plan made under the CP Act to be considered in assessing a development applications. Also, there is no reason why a coastal study could not be considered under s79C as part of the consideration of the suitability of the site, as well as the public interest.

The case provides further support for the view that if information regarding coastal hazards becomes available to a council, action should be taken quickly to incorporate any mitigation measures or exclusion zones in planning controls, so as to ensure that development decisions of the Council which seek to protect against coastal hazards are not overturned by the Court.