Posted on November 12, 2012 by Megan Hawley

Winding back of coastal protection laws

On 22 October 2012 the Coastal Protection Amendment Act 2012 (Amendment Act) was passed. It has not yet commenced. Once it does commence, it will amend the Coastal Protection Act 1979 (Act) in a number of ways which could be seen to benefit the owners of land subject to coastal hazards.

There are 3 key changes:

• more flexibility for private landowners to place sandbags and other materials on their own land to protect it from coastal hazards,
• the revocation of sea level rise benchmarks, and
• the repeal of provisions in the Act for establishing coastal hazard risk categories for land.

Protection of Private Property

The Amendment Act significantly expands the circumstances in which a private landowner can carry out temporary coastal protection works on his or her own land.

Temporary coastal protection works are currently known  as emergency coastal protection works.  They are defined as the placement of material such as sandbags on a beach or sand dune adjacent to a beach, to mitigate the effects of wave erosion on land.

The Amendment Act will remove from the Act:

• the  requirement for the threat of beach erosion to be imminent or occurring or the threat of damage to a building to be reasonably foreseeable, before temporary coastal protection works can be carried out;
• the current restriction on such works remaining in place for no more than 12 months; and
• the requirement for a certificate to be obtained before the works can be carried out.

The removal of the last mentioned requirement will be welcomed by landowners who face coastal threats, as if erosion is occurring or imminent, the need to obtain a certificate severely restricts the ability of a landowner to protect his or her land.

Certificates will  still need to be obtained, however, if private landowners wish to carry out temporary coastal protection works on public land in order to protect their own land.

As there will no longer be any requirement for the works to be removed after 12 months, it is a misnomer to call the works ‘temporary’. They could remain in place indefinitely. However, if the works themselves cause erosion to neighbouring land or present public safety risks, authorised officers of the Office of the Environment and Heritage (OEH) can exercise their existing powers to remove the works.

The Amendment Act does not affect landowners’ current rights to apply for development consent under the Environmental Planning & Assessment Act 1979 for the construction of coastal protection works which do not fall within the definition of temporary coastal protection works.

Sea Level Rise Benchmarks

The NSW Government’s 2009 Sea Level Rise Policy Statement established sea level rise benchmarks to be used by councils for planning purposes.

Those benchmarks were:

• a 40cm sea level rise above 1990 levels by 2050; and
• a 90cm sea level rise above 1990 levels by 2100 (SLR Benchmarks).

The SLR Benchmarks informed other policies and guidelines issued for planning purposes, particularly the NSW Coastal Planning Guidelines -Adapting to Sea Level Rise 2010 (Planning Guidelines).

The Government has now stated that the SLR Benchmarks are no longer government policy, and that instead the OEH will issue guidelines for coastal hazard mapping.

Whilst there was criticism of the SLR Benchmarks, given their blanket application across the state, the fact that they no longer represent government policy has implications for councils. Councils will now be required to individually establish relevant benchmarks for their local government areas. Clearly this imposes a financial and administrative burden on councils, many of whom do not have the internal expertise or access to readily available information to determine the risk from sea level rise.

A liability issue also arises. Councils have some protection from liability afforded by both the Civil Liability Act 2002 and s733 of the Local Government Act 1993 (LG Act).

Section 733(2) of the LG Act provides that a council does not incur liability in respect of advice furnished by the council in relation to coastal hazards, and anything done or omitted to be done in good faith by the council in respect of such hazards. This includes the exercise of the council’s planning functions.

The SLR Benchmarks  gave councils some comfort that if they based planning decisions on those benchmarks, they could be said to have acted in good faith.

However, if councils develop their own benchmarks, then there is a risk that councils will be required to justify their benchmarks in order to have the benefit of the protection afforded by s733 of the LG Act. It is to be hoped that the OEH guidelines will establish a clear process for coastal mapping, and that if councils can demonstrate compliance with those guidelines, then the good faith defence will be established.

There are a vast number of policy documents which rely on the SLR Benchmarks which will presumably be revised in due course. Until they are, there is some uncertainty for councils and it is likely that councils will cease any work they are doing in respect of coastal hazards.

Property owners are also likely to welcome the move away from the SLR Benchmarks, as there was a widely held concern that mapping of the SLR Benchmarks adversely affected the value of properties mapped as being within the area of the coast susceptible to a 40 or 90cm rise in sea level.

Regulations regarding coastal hazard zones

The Act provides that regulations can be made categorising land into risk categories for coastal hazards.

The Coastal Protection Regulation 2011 (Reg) establishes the following risk categories:

• land that is or is likely to be adversely affected by coastal hazards currently (risk category 1),
• land that is likely to be adversely affected by coastal hazards in 2050 (risk category 2), and
• land that is likely to be adversely affected by coastal hazards in 2100 (risk category 3).

The Minister for the Environment can make determinations of risk categories. Also, if a coastal zone management plan prepared by a council establishes risk categories, and the plan is certified by the Minister, then the categories apply to the land.

A certificate issued by a council under  s149(2) of the Environmental Planning & Assessment Act 1979 (EPA Act) for land must note if that land is within one of the risk categories.

The Amendment Act proposes to delete the provisions in the Act and the Reg which establish risk categories, and remove the requirement for risk categories to be noted in s149(2) certificates. The other requirements for s149 certificates in respect of coastal hazards remain. In particular if  Council adopts a policy which restricts the development of that land because of coast hazards, then this must be noted on a s149(2) certificate for that land.

Again, property owners, particularly those wishing to sell their properties, will welcome the proposed amendment to the extent that it prevents a s149(2) certificate noting that a property is within a coastal hazard risk category.