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Last updated: 30 October 2008
5.5 Coastal Protection
1 Overview
Key to terms used in this Fact sheet
Coastal Policy means the NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast
Environment Minister means the NSW Minister for Climate Change and the Environment
Planning Minister means the NSW Minister for Planning
EPA Act means the Environment Planning and Assessment Act 1979
SEPP means a State Environmental Planning Policy.
The NSW coast is an environmentally fragile area which is under increasing pressure from new residents, development, and more recently, climate change. This Fact sheet describes the legal framework regulating development in coastal areas in NSW.
1.1 Division of responsibilities
Responsibility for coastal protection is split between State and local governments. The Minister for Planning has a general responsibility for coastal areas, and often has a consent role. However, local councils also play a role in zoning coastal areas (LEPs) and approving development.
Under Federal environmental laws (Environment Protection and Biodiversity Conservation Act 1999, there may also be an approval role for the Federal Minister for the Environment.
Like development in the rest of NSW, coastal development is mainly controlled under the Environmental Planning and Assessment Act 1979.
For more information about environmental planning and assessment, see Fact sheet 2.2
For more information on marine protected areas, see Fact sheet 6.3
For more information on water pollution, see Fact sheet 4.1
Environmental and Planning Law in NSW, Lyster, et al (2007) pp 296-303
The Environmental Law Handbook, Farrier and Stein (eds), (4th ed) 2006, Redfern Legal Centre Publishing, Chapter 13, Coastal and riverside land, pp 467 - 496.
2 Where is the Coastal Zone?
The Coastal Zone determines whether specific planning laws and policies will apply to a development.
2.1 Coastal Zone maps covering regional NSW
The precise boundaries of the area which has been declared by the Minister as the Coastal Zone in regional NSW are shown on a series of maps.1 The maps generally show the Coastal Zone to extend:2
One kilometre inland from the coast
One kilometre landward around any bay, estuary, coastal lake or lagoon
One kilometre along either bank of a coastal river.
The Coastal Zone also includes coastal waters which generally extend up to three nautical miles from the NSW coastline.3
The maps showing the Coastal Zone in regional NSW are not available on the Internet. They can only be viewed in person at the Department of Planning's Head and regional offices, and at each local council which has land within the coastal zone.4
2.2 Coastal Zone maps covering metropolitan Sydney
On 18 November 2005 the Minister for Natural Resources extended the Coastal Zone to include parts of the Sydney Greater Metropolitan Region, ie the local government areas between Newcastle City Council and Shellharbour Council. This generally covers land one block back from the coast and includes public foreshore lands.
This had the effect of bringing the following three coastal policies into force in 13 local government areas around Sydney:
NSW Coastal Policy 1997
SEPP 71 - Coastal Protection
SEPP (Major Projects) 2005.
The maps showing which Sydney metropolitan areas are in the Coastal Zone are available on the Internet.
2.3 What are the implications of land being in the Coastal Zone?
Some of the implications of a site falling within the Coastal Zone are that the following laws and policies will apply to the site:
The 1997 Coastal Policy
SEPP 71 - Coastal Protection
SEPP (Major Projects) 2005
The Coastal Protection Act 1979.
3 NSW Coastal Policy 1997
In 1997, the NSW Government issued the NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast (Coastal Policy). The aim of the Coastal Policy is to promote the ecologically sustainable development of the NSW coastline.
The Coastal Policy applies in the Coastal Zone as defined under the Coastal Protection Act 1979.
The Policy gives guidance to State government agencies and local councils that are responsible for the protection and management of the Coastal Zone. The Policy contains a range of new initiatives including:
A ban on new sand mining projects in coastal national parks and nature reserves
Controls over sand mining in environmentally sensitive areas
A ban on new canal estate developments
A prohibition on development on beach fore dunes
A requirement that new tourist developments not impede public access to beaches and foreshores.
3.1 How is the Coastal Policy enforced?
The Coastal Policy itself is not legally enforceable.
Its implementation and enforcement takes place through a range of other indirect measures. These include:
A requirement that all local environment plans give effect to it in accordance with a section 117 direction by the Planning Minister
A requirement that a local council must consider the Coastal Policy when determining a development application in the Coastal Zone5
A requirement that local councils and state agencies address, in their annual reports and state of the environment reports, how they are going to implement the Coastal Policy.
4. Coastal protection under SEPPs
There are a number of State Environmental Planning Policies (SEPPs) which regulate development in coastal areas.
4.1 SEPP 71 - Coastal Protection
The main SEPP controlling development in the Coastal Zone is SEPP 71 (see ' Where is the Coastal Zone ' above).6 It came into force on 1 November 2002. As with other SEPPs, it is legally enforceable.
Additional matters for LEPs and development applications
SEPP 71 sets out a number of additional matters that a consent authority must take into account when preparing a local environment plan or determining a development application.7
These include:
Retaining public access to and along the coastal foreshore for pedestrians
Providing opportunities for new public access on the foreshore
Any detrimental impact that development may have on the amenity of the coastal foreshore, including overshadowing and significant loss of views from a public place
The scenic qualities of the NSW coast
Measure to conserve threatened animals, plans and fish
Protecting existing wildlife corridors, and
The likely impact of coastal processes and coastal hazards on development.
Certain developments must not be approved
The Policy provides that a consent authority must reject development applications that will:
Impede or diminish access to coastal foreshores8
Result in effluent discharge that negatively affects water quality,9 or
Involve a discharge of untreated storm water into the sea, a beach, an estuary, or coastal lake or creek.10
Master plans for subdivisions
SEPP 71 also requires that a consent authority cannot grant development consent to certain subdivisions unless the Planning Minister has adopted a master plan.11
Under SEPP 71, master plans are required for:12
Subdivision of land with a residential or rural/residential zone in a 'sensitive coastal location'
Subdivision not within a 'sensitive coastal location', but
are for more than 25 lots, or
are within a rural/residential zone into more than 5 lots.
A 'sensitive coastal location' is defined in SEPP 71 to include land within 100 metres above the mean high water mark, a coastal lake, a Ramsar wetland, a World Heritage property, and land within 100 metres of a SEPP 14 Coastal Wetland.13
Master plans are prepared by the owner or lessee of land and must be placed on public exhibition before they are either accepted or rejected by the Planning Minister.14
Significant coastal development
Development applications for significant coastal development must be referred by the local council to the Director-General of Planning for comment, unless the Planning Minister is already the consent authority.15 The Director-General has 28 days within which to specify any additional matters that the council must take into consideration.
Following amendments to SEPP 71, many of the provisions concerning significant coastal development were transferred to SEPP (Major Projects) 2005 so that now only development within 100 metres below the mean high water mark of the sea, a bay or estuary need be referred under this provision.
Friends of South West Rocks v Machro Pty Ltd [2004] NSWLEC 721
The EDO successfully represented Friends of South West Rocks in challenging a consent granted by Kempsey Shire Council to three development applications at South West Rocks on the mid north coast of NSW.
The proposed development was for 82 housing lots on 8.5 hectares of native forest. Justice Pain, of the Land and Environment Court, found that the Council had breached the provisions of State Environmental Planning Policy No. 71 (SEPP 71) and had no power to grant consent to the development applications because the Minister was the proper decision maker for one of the DAs and the Council could not grant consent to the development applications in the absence of a master plan for the land. Accordingly, the Court found that the consents were invalid.
SEPP (Major Projects) 2005 was introduced on 1 August 2005 as part of the package of amendments introducing Part 3A (Infrastructure and other major projects) to the EPA Act. This SEPP identifies, among many other things, the types of coastal development that require the approval of the Planning Minister under Part 3A: See Fact sheet 2.3 for more information on Part 3A.
SEPP (Major Projects) provides that Part 3A of the EPA Act applies to the following types of developments (listed in Schedule 2) within the Coastal Zone:16
Extractive industries
Landfill facilities
Mining operations and marinas which are designated development within a 'sensitive coastal location'
Designated developments within a 'sensitive coastal location' in the metropolitan coastal zone
Some recreational or tourist facilities in 'sensitive coastal locations'
Buildings or structures over 13 metres in height
Some subdivisions which are in a 'sensitive coastal location'
A 'sensitive coastal location' has the same definition as under SEPP 71.
The SEPP also provides that the Planning Minister is the consent authority under Part 3A for many different classes of high-impact developments (listed in Schedule 1) which take place in an environmentally sensitive area of State significance, which includes many coastal areas such as SEPP 14 wetlands, Ramsar wetlands and marine parks.17
4.3 SEPP 14 - Coastal Wetlands
SEPP 14 Coastal Wetlands aims to protect and preserve coastal wetlands.18
The areas covered by the SEPP are shown on a series of maps held by the Department of Planning.19 Over 1,300 coastal wetlands have been mapped under SEPP 14, representing 7% of all coastal wetlands in NSW.
Under SEPP 14, a person must not clear land, construct a levee, drain land or fill land which is covered by the Policy except with the consent of the local council and the concurrence (agreement) of the Director-General of Planning.20 A copy of all development applications for such activities must be forwarded by the local council to the Director of National Parks and Wildlife within 7 days.21
Activities on SEPP 14 wetlands which require development consent are deemed to be designated development, which means they must have an environmental impact statement under Part 4 of the EPA Act.22
Works to restore SEPP 14 wetlands must not be carried out except with the consent of the local council and the concurrence (agreement) of the Director of Planning.23
4.4 SEPP 26 - Littoral Rainforests
A littoral rainforest is a particular type of forest which is adapted to withstand coastal conditions involving harsh, salt-laden, drying winds. The aim of SEPP 26 - Littoral Rainforests is to preserve those forests.
The rainforests covered by the SEPP are shown on a series of maps held by the Department of Planning. The Policy also applies to land within 100 metres of the boundary of a SEPP 14 wetland.24
Development consent is required for the following activities in littoral rainforests:25
Erecting a building or carrying out a work
Disturbing, altering or changing any landform
Dumping rubbish or chemicals
Using a littoral rainforest for any purpose
Disturbing native flora (clearing)
These activities are deemed to be designated development, for which an environmental impact statement must be prepared under Part 4 of the EPA Act:26 see Fact sheet 2.3. Under SEPP 26, the local council remains the consent authority for developments caught by SEPP 26, and the concurrence (agreement) of the Planning Minister is also required.27
4.5 SEPP 50 - Canal Estate Development
Canal estate developments are prohibited under SEPP 50, which was introduced in November 1997. The Policy applies to the whole State.28
4.6 SEPP 62 - Sustainable Aquaculture
SEPP 62 regulates aquaculture activities in NSW. The Policy commenced on 1 October 2000.
The Policy defines 'aquaculture' as cultivating fish or marine vegetation for the purposes of harvesting and selling them, and keeping fish in a confined area for a commercial purpose (such as a fish-out pond).29
The Policy applies to the following classes of aquaculture:
Tank-based aquaculture (eg barramundi or abalone)
Pond-based aquaculture (eg prawns and yabbies)
Natural water-based aquaculture (eg oysters and caged fin fish).
The specific local government areas to which the Policy applies are set out in Schedules 1 and 2 to the SEPP.
The Policy establishes minimum performance criteria for aquaculture activities.30 Any type of aquaculture proposal that is not permissible under the Policy is prohibited.31 Proposals that meet the minimum criteria can be undertaken, but only once development consent is obtained.
The type of environmental assessment required depends on the level of risk involved. Development categorized as low-level or medium-level risk is deemed to be advertised development under the EPA Act:32 See Fact sheet 2.2. Development categorized as higher risk (Class 3) is deemed to be designated development which requires an environmental impact statement.33
Aquaculture also requires a permit under the Fisheries Management Act 1994.34
5 Coastal Protection Act 1979
The Coastal Protection Act 1979 (NSW) gives the Environment Minister broad powers to regulate development in the Coastal Zone of NSW.
5.1 Concurrence of Environment Minister
The Act prohibits a public authority from carrying out development in the Coastal Zone, or from granting consent to another person to develop or use land in the coastal zone, without the concurrence (agreement) of the Environment Minister.
The provisions requiring concurrence only come into play if the Environment Minister chooses to activate them by either:
Issuing a notice35 to a public authority (which includes a local council) prohibiting the authority from carrying out a particular development itself, or granting development consent to another party, or
Making an order36 prohibiting a public authority (including a local council) from carrying out a development itself or granting development consent to another party, within a specified area of the Coastal Zone.
In deciding whether to grant concurrence, the Environment Minister cannot only consider whether a proposed development, use or occupation of coastal land will have impacts on a foreshore area, but must also consider whether it is consistent with the principles of ecologically sustainable development.37 Under these provisions, the Environment Minister could, for example, impose conditions requiring increased set backs from foreshore areas, require the protection of biodiversity, and apply the precautionary principle.
The concurrence of the Environment Minister is not required for a project which is approved by the Planning Minister under Part 3A (Major Infrastructure and other projects) of the EPA Act.38
A decision on concurrence must be made within 40 days,39 and the Environment Minister must give the public authority reasons.40 The Environment Minister can order works or buildings which are carried out without concurrence to be demolished and restoration work to be carried out.41
In practice, the power to issue notices and orders has rarely been used. A section 149 certificate must state whether land is affected by a s 38 notice or s 39 order.42
In June 2008, the Coastal Protection Act 1979 was amended to limit the circumstances in which the Environment Minister's concurrence is required.43 The amendments provide that the concurrence of the Environment Minister is not required for development in the Coastal Zone if the development:
Requires development consent under the EPA Act;
Is exempt development under that Act; or
Is carried out in accordance with a coastal zone management plan.
The amendments also reduce the period with which a decision on concurrence must be made from 40 days to 21 days. However, as at the time of writing (29 October 2008), none of these amendments have commenced.
5.2 Coastal zone management plans
The Coastal Protection Act 1979 allows local councils in the Coastal Zone to make coastal zone management plans if they so choose.44 A local council must make one if directed to do so by the Environment Minister.45
The plan must address three things:46
How the beach environment and amenity will be protected;
What emergency actions are permitted (eg property protection) during periods of beach erosion, such as a violent storm or irregular event; and
How the council will ensure continued public access to beaches, headlands and waterways.
The purpose of a coastal zone management plan is to avoid inappropriate action from being taken during storm events which may inadvertently lead to more erosion or beach damage, and to put in place a more structured plan for beach protection. Draft plans must be placed on public exhibition any person can make a submission during this period.47 Coastal zone management plans must be approved by the Environment Minister.48
Coastal zone management plans are legally enforceable,49 and can be enforced by the Environment Minister or local council in the Land and Environment Court.50
Byron Shire Council is presently in the process of preparing its coastal zone management plan.
Either the Environment Minister or a local council can issue a beach protection order in an emergency, even where there is no coastal zone management plan in force.51 For example, the Minister or council could order a person to:
stop dumping material on a beach (such as car bodies or tyres),
remove material deposited by that person which is causing erosion or disturbing public access
refrain from erecting structures near the beach, or
remove unlawful structures on the beach.
These orders must be issued in accordance with certain procedural requirements in order to be valid.52
5.4 Court can order beach restoration
The Coastal Protection Act 1979 gives the Land and Environment Court power to order that damage to a beach be repaired. The Court can order a person to make good any environmental damage, to clean up material dumped during a beach erosion event, and to prevent the recurrence of harm to the beach.53
6 Coastal protection under Federal environmental law
6.1 Environmental Protection and Biodiversity Conservation Act 1999
The main federal environmental law is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It lists seven matters of national environmental significance ('triggers') which activate the power of the Federal Environment Minister to regulate new developments. Although there is no direct 'coastal' trigger, many of the other triggers may be affected by coastal development.
For example, a new development or activity in a coastal area may need to be referred to the Federal Environment Minister, and be assessed, if it is likely to have a significant impact upon one or more of the following matters:
a World Heritage site
a National Heritage place
a nationally protected wetland (Ramsar wetlands)
a nationally listed threatened species or ecological community
a listed migratory species
a Commonwealth marine area.
In addition, activities which are to take place on land owned by the Commonwealth, and activities by Commonwealth agencies, which are likely to have a significant impact on the environment also require referral and assessment.
For more information on the EPBC Act, see Fact sheet 3.1 EPBC Act.
Case Study: Minister's refusal of Nobby's Lighthouse Development Proposal
In 2007 the Environmental Defender's Office wrote to the Federal Minister for the Environment, Peter Garrett, asking that he call in, under the Environmental Protection and Biodiversity Conservation Act 1999, a decision regarding a development proposal adjacent to the historic Nobbys Lighthouse, Newcastle.
On 19 May 2008, the Minister confirmed the decision to refuse the development proposal. The decision was made following a period of public consultation in which the Newcastle community made more than 450 written submissions. The Minister cited potential impacts on the heritage values of the lighthouse as particularly important in underpinning his final decision.
The decision has not, however, discounted other future developments within the area.
6.2 How can I find out if the EPBC Act applies in a coastal area?
The Commonwealth EPBC Act website contains a search function which allows you to easily find out whether the EPBC Act might apply to your area.
You can search a particular area by browsing maps, entering coordinates, or by Local Government Area. The EPBC Act website will then generate a Report (an EPBC Act Protected Matters Report) showing all of the Matters of National Environmental Significance in your area which are protected under the EPBC Act (eg showing the World Heritage sites, National Heritage places, Ramsar wetlands or endangered species, etc in your area).
Climate change is likely to bring with it new threats to the NSW coast.
7.1 Potential coastal impacts
The potential impacts of climate change on the coast include:54
Sea level rise and increasing flood levels in tidal reaches of estuaries which will be particularly significant around coastal lakes and lagoons;
An increased frequency and intensity of storms;
Loss of sandy beaches, especially where they are backed by seawalls;
Changed estuarine tidal regimes;
Problems with local drainage in lower estuaries;
Reduction in under bridge clearances; and
Landward migration of mangroves and salt marshes, and potential loss of threatened species.
A recent mapping report on low-lying coastal areas published by the NSW Department of Planning notes that although the potential for destruction caused by extreme weather events is of concern to coastal communities, the increased frequency of flooding probably represents a more significant concern for coastal communities as this will require increased maintenance of important infrastructure such as roads, storm water and sewerage systems.55
7.2 Climate change and development applications
It is clear that a consent authority should factor in the risk of climate change when determining a development application.
Local councils are required to consider climate change under the following plans and policies:
NSW Coastal Policy 1997 (Objective 2.2) "to recognise and consider the potential effects of climate change in the planning and management of coastal development"
The Coastal Policy is listed in the Regulations as a specific matter which a consent authority must take into account when determining a development application in the Coastal Zone56
SEPP 71 - Coastal Protection lists "the likely impact of coastal processes and coastal hazards on development" as an additional matter for consent authorities to consider when determining a development application.57
The Land and Environment Court has also made it clear that a consent authority must take the principles of ecologically sustainable development into account when determining a development application, and this would include the impacts of climate change.58
Climate change and Part 3A major infrastructure projects
It is not clear whether the Planning Minister is bound to consider the impacts of climate change when deciding whether to approve a major infrastructure project under Part 3A of the Environmental Planning and Assessment Act 1979 (see case study).
Walker v Minister for Planning and Ors
The EDO assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a Concept Plan approval of a development at Sandon Point.
The proposed development was for up to 285 homes and an aged care facility to be built on flood-prone coastal land.
It was argued that the Minister failed to take into consideration the recommendations and findings of a Commission of Inquiry report, and that the Minister failed to apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal.
In a detailed judgment, Justice Biscoe reviewed the principles of ESD as well as US and Australian case law on climate change. He found that the Minister for Planning had failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site.
The case has important implications for how the Minister must deal with major projects under Part 3A of the Environmental Planning and Assessment Act 1979.
The Minister for Planning successfully appealed to the NSW Supreme Court, Court of Appeal. Jill Walker has sought leave to appeal to the High Court of Australia.
7.3 Mapping project for NSW Central and Hunter coasts
The NSW Department of Planning has recently produced a report which identifies the low-lying areas of the Central and Hunter coasts which are at risk of sea level rise resulting from climate change: High resolution terrain mapping of the NSW Central and Hunter coasts for assessments of potential climate change impacts: Final project report (May 2008).
The Report covers the local council areas of Wyong, Lake Macquarie, Newcastle City and Port Stephens. The purpose of the Report is to assist those local councils, their communities, and the NSW Government to make informed decisions about the likely impacts of sea level rise on low-lying coastal areas for existing and future developments.
The boundaries of the coastal zone are set out in the Coastal Protection Act 1979, s 4 and 4A(3).
Interpretation Act 1987 (NSW), s 58.
Coastal Protection Act 1979, s 4B.
Environmental Planning and Assessment Regulation 2000, cl 92(1)(a).
SEPP 71, cl 4. But the Policy does not apply if SEPP 62 - Sustainable Aquaculture applies.
SEPP 71, cll 7 and 8.
SEPP 71, cl 14.
SEPP 71, cl 15.
SEPP 71, cl 16.
SEPP 71, Part 5, cll 17 - 24.
SEPP 71, cl 18.
See SEPP 71, cl 3 (Definitions) for a full description of what land is within a 'sensitive coastal location'.
SEPP 71, cll 20, 21 and 22.
SEPP 71, Part 3, cl 11.
SEPP (Major Projects), Sch 2 lists Part 3A projects within the Coastal Zone.
SEPP (Major Projects), cl 3 (Definitions) 'environmentally sensitive area of State significance'.
SEPP 14, cl 2.
SEPP 14, cl 4.
SEPP 14, cl 7.
SEPP 14, cl 8.
SEPP 14, cl 7(3).
SEPP 14, cl 7A.
SEPP 26, cl 4.
SEPP 26, cl 7.
SEPP 26, cl 6.
SEPP 26, cl 7(4).
SEPP 50, cl 4.
SEPP 62, cl 4.
SEPP 62, cl 7(2) and 8(2).
SEPP 62, cl 11.
SEPP 62, cl 15.
SEPP 62, cl 14.
Fisheries Management Act 1994, s 144.
Coastal Protection Act 1979, s 38(1).
Coastal Protection Act 1979, s 39(1).
Coastal Protection Act 1979, s 44.
EPA Act, s 75U(1)(a).
Coastal Protection Act 1979, s 42.
Coastal Protection Act 1979, s 46.
Coastal Protection Act 1979, s 51.
Environmental Planning and Assessment Regulation 2000, Sch 4, cl 4.
Environmental Planning and Assessment Amendment Act 2008, Sch 5.2[1].
Coastal Protection Act 1979, s 55B.
Coastal Protection Act 1979, s 55B.
Coastal Protection Act 1979, s 55C.
Coastal Protection Act 1979, s 55E and 55F.
Coastal Protection Act 1979, s 55G.
Coastal Protection Act 1979, s 55K.
Coastal Protection Act 1979, s 55L.
Coastal Protection Act 1979, s 55M.
Coastal Protection Act 1979, s 55M(2) - (4).
Coastal Protection Act 1979, s 56A.
High resolution terrain mapping of the NSW Central and Hunter coasts for assessments of potential climate change impacts, Final project report (May 2008), NSW Department of Planning, p 9.
High resolution terrain mapping of the NSW Central and Hunter coasts for assessments of potential climate change impacts, Final project report (May 2008), NSW Department of Planning, p 9.
Environmental Planning and Assessment Regulation 2000, cl 92.
SEPP 71, cl 8(j).
Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 in which the Court held that a consent authority must take the principles of ESD into account under section 79C(1)(e) of the EPA Act which requires that a consent authority take the "public interest" into account.
