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13 Aug 2010

Planning ahead for sea level rises in NSW

by Claire Smith, Nick Thomas

The introduction of a coastal protection amendment Bill and the Sea Level Rise Policy Statement means that sea level rise and its effect on development is finally being addressed at the regulatory level.

The legislative and policy framework for coastal development in NSW is being updated to give:

  • developers guidance on predicted sea level rises to allow them to adopt an adaptive risk based approach to siting, design and development controls for new development in vulnerable coastal areas;
  • landowners rights to conduct emergency coastal protection works to combat erosion risks to their infrastructure and buildings in particular situations; and
  • Coastal Authorities new powers to prevent or remove illegal works on beaches (or private property) likely to cause erosion or a safety risk or impede public access.

Background

According to the NSW Government, some 200 existing houses at 15 erosion hotspots in NSW are currently exposed in the event of a significant coastal storm, and the number of exposed houses is expected to increase with projected sea level risk. The Coastal Protection Act 1979 has not been reviewed for many years and does not provide a practical way for erosion risks to be addressed in emergency situations.

In addition, there have been a number of challenges to coastal development in the NSW courts recently on the grounds that the decision-maker has failed to take ecologically sustainable development principles (including climate change risk) into account in approving coastal development.

To fill this legislative and policy lacuna, the NSW Government has announced a variety of measures including:

  • the October 2009 release of the NSW Sea Level Rise Policy Statement that specifies sea level planning benchmarks for the NSW coastline; and
  • the 11 June 2010 introduction of the Coastal Protection and Other Legislation Amendment Bill 2010 which deals with coastal erosion and projected sea level rise.

NSW Sea Level Rise Policy Statement

The Policy Statement outlines the NSW Government's objects and commitments with regard to sea level rise adaptation.

The benchmarks set by the Policy Statement are an increase above 1990 mean sea levels of 40 centimetres by 2050 and 90 centimetres by 2100. These benchmarks are intended to support an adaptive risk-based approach by the proponent to future development and upgrading of existing development in vulnerable coastal areas, and to give the decision-maker dealing with development applications a framework on which to base its decisions.

For example, under the Policy Statement, the developer of any new asset should consider the predicted increase in sea level over the lifespan of that asset or development and undertake appropriate risk-based site planning, design and development control in order to minimise the likely impacts if that predicted sea level rise occurs. The use of benchmarks allows consistency in that risk-based assessment.

The NSW Government will periodically monitor sea level rise projections using credible national and international sources, with the next review likely to coincide with the release of the fifth Intergovernmental Panel on Climate Change report due in 2014.

Coastal Protection and Other Legislation Amendment Bill 2010

The Bill deals with coastal erosion and projected sea level rise by improving the operation of the principal Act, the Coastal Protection Act 1979. The Bill establishes, amongst other things, the NSW Coastal Panel which, in addition to any role made for it under planning legislation, will take on the function of providing advice to the Minister.

Emergency coastal protection measures

The Bill introduces provisions that enable landowners and occupiers to place certain emergency coastal protection materials (eg. sand bags) on beaches and sand dunes to mitigate the effects of wave erosion without obtaining development consent as long as:

  • the material is placed in accordance with a certificate given by the Minister (although the function of issuing such a certificate can be delegated to an emergency works officer);
  • placing the material is an emergency action during a period of beach erosion;
  • the material is placed to protect a lawfully erected building or land on which a building could be lawfully erected that is zoned residential and is adjacent to land on which a lawfully erected building is located; and
  • the maximum period the materials remain in place is six months (or such other period prescribed by regulations made under the principal Act).

Long-term coastal protection measures

The new Bill also inserts provisions to the effect that consent must not be granted under NSW planning legislation to long-term coastal protection development (such as seawalls) unless the consent authority is satisfied that satisfactory arrangements have been made for the following for the life of the works:

  • the restoration of a beach, or land adjacent to the beach not protected by the works, if any increased erosion of the beach or adjacent land is caused by the presence of the works; and
  • the maintenance of the works.

The NSW Government has stated that amendments to the Infrastructure State Environmental Planning Policy will be progressed following the passage of the Bill which will allow landowners to apply for development to construct long-term coastal protection works. This is necessary as some local environmental plans currently prohibit these works.

Funding for coastal protection measures

The Bill contains provisions enabling local councils to make and levy an annual charge for the provision of coastal protection services on rateable land that benefits from such services. Consent authorities can also ensure there is adequate funding for long-term coastal protection works requiring development consent, through legally binding obligations on land owners.

Penalties and powers for Coastal Authorities

The Bill gives a Coastal Authority which is the designated authority for a beach the power to remove structures or issue stop work orders where it considers that those structures or activities are: causing or likely to cause an increased erosion of a beach or adjacent land; unreasonably limiting public access; or likely to pose a threat to public safety.

The Bill also steeply increases the maximum penalty for offences from 100 penalty units ($11,000) to 4,500 penalty units ($495,000) in the case of a corporation and 2,250 penalty units ($247,000) in any other case.

Implications

The introduction of the Bill and the Policy Statement means that the potential for sea level rise and its effect on development is finally being addressed at the regulatory level. The clear benchmarks provided by the Policy Statement make it easier, both for applicants and decision-makers, to address and plan for the impacts of sea level rise at the development application stage.

Once development is undertaken, the Bill streamlines the process for legally protecting it during emergency events. However, it is worth noting that, while the Bill removes the need for development consent, a certificate authorising the works is still required and a landowner or occupier may take advantage of the special provisions relating the emergency coastal protection works only once.

Developers and owners of coastal land may also be liable for new coastal protection levies or rates if the Bill is passed and will need to be wary of Coastal Authorities who will have new powers to remove or alter structures (even on private land that is or fronts a beach).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.