Posted on December 12, 2019 by Katie Mortimer and Megan Hawley 1

Updated Planning Circular for Coastal Hazards

On 26 November 2019, the Department of Planning, Industry and Environment (DPIE) issued a new planning circular that provides guidance on assessing coastal hazards under the State Environment Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) , and notations to be included on planning certificates in respect of coastal hazards.

The new circular does not make any substantive changes to the guidance provided in respect of notations on planning certificates, but does update references to the Coastal Management SEPP and the Coastal Management Act 2016.

Reminder re Planning Certificates and Coastal Hazards 

Planning certificates issued under s10.7 of the Environmental Planning and Assessment Act 1979 (formerly known as s149 certificates) must contain certain information prescribed by s10.7(2), and may contain additional information pursuant to s10.7(5).

Importantly, contracts for sale of land are only required to include a s10.7(2) certificate containing the prescribed information.

Matters that must be specified in a s10.7(2) certificate concerning coastal hazards are limited to:

• the application of planning controls such as LEPs and SEPPs (which may contain provisions regarding coastal hazards),
• whether the land is subject to any charges for coastal protection services,
• whether the land is affected by a policy adopted by the council or any other public authority, and notified to the council for the express purpose of its adoption by that authority being referred to in planning certificates issued by the council, that restricts the development of the land because of the likelihood of tidal inundation or any other risk (other than flooding).

Councils have much greater flexibility when issuing s10.7(5) certificates, and may include matters such as hazard lines identified in a draft Coastal Management Program, or a council’s latest modelling of coastal risks and hazards.

The updated circular is largely unchanged from DPIE’s previous circular issued in November 2014 (see our previous blog on that draft circular here).

The circular continues to recommend that:

• planning certificates reflect the information required by legislation at the time a person applies for the certificate,
• councils encourage interested parties to make further inquiries to establish the specific exposure of a site, and any evolving risks that may occur in the future,
• planning certificates clearly indicate the currency of any information that is provided, and articulate the date the relevant study or policy was adopted,
• as an adjunct to a planning certificate, councils make available the variables that have been considered in formulating the planning certificate and the assumptions on which the analysis relies.

For s10.7(2) certificates, the circular states that councils should take all necessary steps to clearly identify the type of hazard that may affect a piece of land, and classify whether it is a current or future hazard. If a council cannot stipulate whether a hazard is a current or future hazard, it should clearly note that on the certificate.

For s10.7(5) certificates, the circular repeats the 2 guiding principles for councils, that:

• if a council is of the opinion that information is sufficiently accurate, complete and reliable, and allows the characteristics of a hazard to be described and understood, that information should be included in a s10.7(5) certificate,
• if council is of the opinion that the above test is satisfied and a constraint on development is warranted (such that the constraint would be included in a s10.7(2) certificate), the council should take steps to include provisions with a LEP or DCP, or adopt a policy that manages development on the land.

Councils are under a duty to take reasonable care in providing information when they issue planning certificates. Any breach of this duty of care may expose councils to liability in negligence.

However s10.7(6) of the EPA Act provides that a council shall not incur any liability for advice provided in good faith pursuant to s10.7(5). Section 733 of the Local Government Act 1993 also exempts councils from liability for advice furnished in planning certificates, provided that the advice is furnished in good faith.

The Courts have said that good faith calls for more than honest ineptitude, and there must be a ‘real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority‘ (see the Court’s discussion about  in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290). 

To ensure protection from liability, Councils should have regard to the recommendations in this circular and ensure that when issuing planning certificates they utilise all available information in respect of coastal hazards.

Assessing Coastal Hazards

The Circular also sets out the provisions of the Coastal Management SEPP and how they should be applied to assess coastal hazards in the development assessment process. See our earlier blogs here and here regarding the Coastal Management SEPP.

Read the planning circular here.

If you want to discuss this post, please contact Megan Hawley on 8235 9703 or Katie Mortimer on 8235 9716.