A new, integrated regulatory framework will require local councils to prepare NSW coastal management programs, and proponents to closely consider the impact of a proposed development on the surrounding coastal environment.
In May 2016, the NSW Government introduced the Coastal Management Bill 2016 to overhaul the management and protection of the NSW coast. The Bill forms part of the NSW Government"s two-stage coastal management reform program and follows approximately 450 submissions across a public consultation period of over three months.
The staggered coastal management reform program seeks to establish a contemporary legislative framework that empowers local councils to develop long-term strategies for the management of NSW coastal land. The NSW Government outlined that this reform will:
- remove outdated and complex coastal management laws;
- resolve historical issues with maintaining the NSW coast;
- provide better support to local councils to manage coastal challenges; and
- manage unique environmental, social and economic values of the NSW coast in a strategic manner.
Stage 1 coastal management reforms
In November 2014, the NSW Government completed Stage 1 of its coastal management reforms. These reforms focused on providing regulatory relief to landowners and local councils to deal with existing coastal hazards and increased flexibility to carry out temporary coastal protection works.
Stage 1 reforms included:
New coastal management framework
The Bill will replace the Coastal Protection Act and introduce a new, simplified regulatory framework.
Overall, the Bill states that management of the NSW coast will be conducted in accordance with the principles of ecologically sustainable development (ESD) and support the social, cultural and economic well-being of NSW.
Key objects of the Bill include:
- protecting and enhancing natural coastal processes and coastal environmental values including natural character, scenic value, biological diversity and ecosystem integrity and resilience;
- supporting the social and cultural values of the coastal zone and maintain public access, amenity, use and safety;
- recognising the coastal zone as a vital economic zone and to support sustainable coastal economies; and
- mitigating current and future risks from coastal hazards, taking into account the effects of climate change.
Revised "coastal zone" definition
The Bill redefines the NSW "coastal zone" from a single zone with similar characteristics throughout the State to four distinct coastal management areas with unique features.
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New coastal management area
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Key management objectives
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1. Coastal wetlands and littoral rainforests area
Land that displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests (including adjacent land)
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Protect the natural state of the area
Promote rehabilitation and restoration
Improve resilience to climate change impacts, including opportunities for migration
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2. Coastal vulnerability area
Land subject to coastal hazards (including hazards such as beach erosion, shoreline recession, coastal or tidal inundation and coastal cliff instability)
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Ensure public safety and prevent risks to human life
Mitigate current and future risk from coastal hazards
Maintain public access, amenity and use of beaches and foreshores
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3. Coastal environment area
Land containing coastal features such as coastal waters, estuaries, coastal lakes, coastal lagoons (including adjacent land)
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Protect and enhance the coastal environmental values and natural processes
Reduce threats and improve resilience
Maintain and improve water quality
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4. Coastal use area
Land adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out (at present or in the future)
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Protect and enhance the scenic, social and cultural values through appropriate development (considering type, bulk, scale, size, urban design, public open space and avoiding or mitigating adverse impacts)
Balance urbanised and natural stretches of coastline
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The Bill prioritises the adoption of restoring or enhancing natural defences (for example, sand dunes, vegetation and wetlands) prior to taking other action to mitigate or reduce coastal hazard risk.
The four areas identified above will be identified in a new Coastal Management State Environmental Planning Policy and mapped throughout NSW. The Bill notes that a parcel of land may be subject to multiple coastal management areas. In this scenario, the hierarchy of management objectives will apply and the highest of the four coastal management areas (set out highest (1) to lowest (4) in the table above) will apply.
Coastal management programs
The Bill establishes outcome-focused management objectives for each of the four coastal management areas to ensure suitable development controls are implemented by local councils.
Local councils will be required to prepare coastal management programs (CMPs) under Part 3 of the Bill to set out the long-term strategy for coordinated coastal zone management that aligns with the objects of the Bill and a new Coastal Management Manual. Notably, the Bill does not specify sea level rise benchmarks for the State. However, local councils will be assisted by the Coastal Management Manual and related technical information to account for coastal processes (including sea levels) when preparing a CMP. CMPs will replace existing coastal zone management plans and must be certified by the Minister for Planning, and may also be referred to a new NSW Coastal Council for review and advice.
Until local councils have established a CMP, the NSW Government has advised that development applications for coastal protection works (for example, sea walls) should be referred to the applicable Joint Regional Planning Panel for consent. The Panel will also have an ongoing consent authority role for new coastal protection works proposed by public authorities that are not identified in a CMP.
Compliance and enforcement
Unlike the Coastal Protection Act, the Bill does not include offences and enforcement powers. To reduce regulatory duplication, the Bill provides for compliance and enforcement provisions under the Environmental Planning and Assessment Act 1979 (Planning Act) to apply to the new legislative arrangements.
Consequently, unauthorised works and development in the coastal zone will be subject to the same offences and enforcement provisions (including higher maximum penalties than the Coastal Protection Act) as other unauthorised development under the Planning Act.
Additional Stage 2 coastal management reforms
The Bill will be supported by additional Stage 2 coastal management reforms, including the:
Coastal Management SEPP: The Coastal Management SEPP will detail development controls for the new coastal management areas. The Coastal Management SEPP will replace three existing SEPPs: SEPP No 14–Coastal Wetlands; SEPP No 26–Littoral Rainforests; and SEPP No 71–Coastal Protection. An Explanation of Intended Effect for the proposed Coastal Management SEPP formed part of the Stage 2 reforms package public consultation period; and
Coastal Management Manual: The Coastal Management Manual will provide guidance to local councils to prepare and implement CMPs that follow ESD principles and comply with the specific objectives of the Bill. A technical toolkit to assist with the identification and assessment of coastal hazards and risks is also included in the Manual. A draft Coastal Management Manual formed part of the Stage 2 reforms package public consultation period.
Implications
The Bill will create a new framework for managing development proposals along the NSW coast.
Proponents will have to ensure that development applications relating to land within a coastal management area includes an appropriate consideration of objectives under the Bill, including:
- the type, bulk, scale and size of the proposed development in relation to its location and the natural scenic quality of the coast; and
- the adverse impacts of development on cultural and built environment heritage are avoided or mitigated.
Next steps
The Bill was initially introduced in, and passed by, the Legislative Council. On 11 May 2016, the Bill was introduced in the Legislative Assembly and awaits further debate as at the date of this article.
A draft Coastal Management SEPP, including maps identifying NSW coastal management areas, will be publicly exhibited later this year.
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