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A Legal Sea Change – The new planning rules and legal outlook for coastal areas

A Legal Sea Change – The new planning rules and legal outlook for coastal areas

Published on December 15, 2015 by Alex Collie

Representatives from across the world have just met in Paris for the 2015 United Nations Climate Change Conference (known as ‘COP21’). Amongst the many topics under discussion was the rise in mean sea level and its impact upon natural and built environments along the coast. There are two approximately equal factors contributing to sea level rise within the last decade: the melting of glaciers, ice caps and ice sheets (which increase the total volume of the world’s oceans) and the effects of thermal expansion (liquid water, like most matter, expands at higher temperatures, thus increasing in volume).

The Intergovernmental Panel on Climate Change (IPCC) projects the rise in mean sea level by the year 2100 to be between 0.28 and 0.98 metres depending on particular scenarios. A rise of between 30 centres and no more than a metre might well seem like no big deal, particularly given articles with diagrams of submerged cities (usually based on a rate of sea level rise that would take a few millennia). However there may be far greater ramifications depending on the local geology and geomorphology of the region. A small increase in sea level at a beach can take away many metres inland as sands shift in response to the changing water level. The Bruun Rule (an often-used shortcut for estimating changes in beach profile) suggests that every centimetre of sea level rise translates to one metre of beach lost to erosion.  On top of this, relatively small increases in sea levels can magnify the impact of storm events and thus result in greater damage over time. All of this poses a great risk and tremendous uncertainty to the environment, population and infrastructure along Australia’s long coastlines. And given that most general insurance policies do not cover the coastal risks of storm surge, coastal erosion and gradual sea level rise, many Australian homeowners are at risk as well.

At a more local level than the COP21, the New South Wales Government is currently overhauling the planning laws that control development along the State’s extensive coastline. The draft Coastal Management Bill proposes to introduce a new State Environmental Planning Policy (SEPP) that will replace three existing SEPPs (relating to Coastal Wetlands, Littoral Rainforests and Coast Protection, or SEPP 14, 26 and 71 respectively).  The most significant change is a shift from coastal areas being managed as a single homogenous area to four distinct areas:

  • Coastal wetlands and littoral rainforests area
  • Coastal vulnerability area
  • Coastal environmental area and
  • Coastal use area

The different areas will each come with different management objectives, such as the management objective seeking to protect biological diversity and ecosystem integrity in the coastal wetlands and littoral rainforests areas as opposed to the management objective controlling the type, bulk, scale and size of development in the coastal use area. The changes will allow land to fall under more than one of these area classifications and, where they do, the objectives that are environmental-focused will take precedence over those that are development-focused.

The end result that the Government hopes to achieve is a streamlined planning consent system, in which the factors that must be considered will be more relevant to the particular types of coastal environment. By consolidating the different guidelines and codes of practice, the process will also hopefully be clearer to both the decision makers (i.e. local councils) and those seeking planning approval. The new statutory NSW Coastal Council will advise on coastal management matters but unlike the old NSW Coastal Panel it replaces, it will have no role in developmental consent. The result of these changes would suggest that the development consent process will be much simpler, however arguably at the cost of weakening developmental regulation.

The other new addition to the coastal planning framework are Coastal Management Programs (CMP). Prepared by councils, these CMPs will set out a long-term strategy for the management of coastal land, including hazard identification and management.  Whilst councils will not be required to create a CMP, and the old Coastal Zone Management Plans (CZMP) can stay in place until 2021, the Minister for the Environment will have the power to require a CMP be produced if deemed necessary. The hope is that these plans will put councils on the front-foot in mitigating the hazards presented by coastal zones, particularly those presented by erosion.

Those living by the coast or looking to move there, however, should still do their homework. Section 733 of the Local Government Act 1993 provides local councils with an exemption from liability relating to advice relating to coastal zone risks. Given that many insurance policies will not cover coastal hazards, it is paramount that those living on the coast have good advice regarding the risks. In much the same way that a property report is always a good idea when purchasing a new home, an assessment of coastal hazards for property that may be at risk can save a tremendous amount of heartache should the worst occur.

Whilst the cutting of red tape and reduction in bureaucracy are often popular moves, the public should be ever mindful of the danger of relaxed regulation. Should developments be given the greenlight despite the coastal hazards they might face, the (fairly hefty) cost of any damage may well be borne entirely by the owner with insurers and local government able to avoid liability. In Taip v East Gippsland Shire Council, the Victorian Civil and Administrative Tribunal found that the risk of flooding in light of climate change and sea level rise was such that the local council should not have approved a development despite the fact that a state policy regarding climate impacts was still being formulated. The Tribunal found, quite rightly, that it is against general planning policies to ignore clear hazards and, in effect, wait for state policies to ‘catch up’. One hopes that if councils are given more freedom to allow development along the coast, the clear risks posed by a changing coastal environment will remain a pressing factor and will not leave homeowners at considerable risk.

For those of you who are simply keen to visit the beach, however, there is good news:  the old rule requiring access to beaches remain unobstructed will still remain.

More information about the proposed reforms can be found here along with an FAQ.

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