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5.5 Coastal Protection

5.5.1 Overview

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.

5.5.1.1 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 with regards to proposed developments. Coastal Panels, constituted under the Coastal Protection Act 1979 have consultative and approval functions for proposed developments in the coastal zone and coastal protection works.

Local councils also play a role in zoning coastal areas (when drafting local environmental plans) and approving development.

Under Federal environmental laws, there may also be an approval role for the Federal Minister for the Environment if a proposed activity is likely to have a significant impact on a matter of national environmental significance such as a nationally listed threatened species, a Ramsar wetland or a nationally listed migratory species. For more information on Federal environmental laws, see Fact Sheet 3.1 – The EPBC Act and Fact Sheet 3.3 – Commonwealth Threatened Species Law.

Like development in the rest of NSW, coastal development is mainly controlled under the Environmental Planning and Assessment Act 1979 (EPA Act).

• 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

5.5.1.2 Useful web links

• Coastcare
• Department of Environment, Climate Change and Water
• Department of Planning
• Land and Property Management Authority
• Sydney Coastal Councils Group

5.5.1.3 Useful legal texts

• Environmental and Planning Law in NSW , Lyster, et al (2007) pp 296-303
• The Environmental Law Handbook , Farrier and Stein (eds), (4 th ed) 2006, Redfern Legal Centre Publishing, Chapter 13, Coastal and riverside land, pp 467 – 496.

5.5.2 What is the coastal zone?

The coastal zone determines whether coastal-specific planning laws and policies will apply to a development.

5.5.2.1 Where is the coastal zone?

The NSW coastal zone is defined in the Coastal Protection Act 1979 and generally includes land: 1

• one kilometre inland from the coast;
• one kilometre landward around any bay, estuary, coastal lake or lagoon; and
• 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. 2

The exact boundaries of the coastal zone are shown on a series of maps. You can view these maps at your local council chambers or at the Department of Planning's head and regional offices.

Maps of the metropolitan region between Newcastle City Council and Shellharbour Council (including Sydney) are also available on the Department of Planning's website .

5.5.2.2 What does it mean if my land is in the coastal zone?

If your land is within the coastal zone then additional laws and policies will apply to the site, including:

• the Coastal Protection Act 1979 (NSW)
• SEPP 71 – Coastal Protection
• SEPP (Major Development) 2005
• NSW Sea Level Rise Policy Statement
• NSW Planning Guideline: Adapting to Sea Level Rise
• NSW Coastal Policy 1979

5.5.3 Laws and Policies that apply to the coastal zone:

5.5.3.1 Coastal Protection Act 1979

The Coastal Protection Act gives the Environment Minister broad powers to regulate development in the coastal zone of NSW.

5.5.3.2 Concurrence of Environment Minister

The Act prohibits a public authority from carrying out development, 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 notice 3 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 order 4 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 not only considers whether a proposed development, use or occupation of coastal land will have impacts on a foreshore area, they must also consider whether it is consistent with the principles of ecologically sustainable development. 5 For example, if the Minister grants concurrence, he or she may apply ecologically sustainable development principles by imposing conditions on the development. Such conditions may include requiring increased set backs from foreshore areas and measures to conserve biodiversity.

The concurrence of the Environment Minister is not required in a number of circumstances, including where 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.

A decision on concurrence must be made within 21 days, 6 and the Environment Minister must give the public authority reasons for the decision. 7 The Environment Minister may order works or buildings which are carried out without concurrence to be demolished and restoration work to be carried out. 8

5.5.3.3 Coastal zone management plans

The purpose of a coastal zone management plan is to avoid inappropriate action 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.

The Coastal Protection Act allows local councils in the coastal zone 9 to make coastal zone management plans if they so choose. 10 A local council must make a plan, or review their plan, if directed to do so by the Environment Minister. 11

The plan must address several matters, including: 12

• how the beach environment and amenity will be protected;
• what emergency actions are permitted (e.g. property protection) during periods of beach erosion, such as a violent storm or irregular event;
• how the council will ensure continued public access to beaches, headlands and waterways;
• how risks relating to coastal hazards are to be managed;
• if there is an estuary in the plan's area, how the health of the estuary and risks to the estuary are to be managed;
• how the climate change impacts on risks arising from coastal hazards and on estuary health are to be managed; and
• arrangements for the adequate maintenance of, and management of, the impact of any coastal protection works (other than emergency coastal protection works).

Draft coastal zone management plans must be placed on public exhibition for a minimum of 21 days and any person can make a submission in writing during this period. 13 Coastal zone management plans must be certified by the Environment Minister. 14 Before the local council submits the draft plan to the Minister, it must consult with any public authorities that the Minister requires. 15

The Minister may also refer the draft plan to the Coastal Panel for advice. 16

Coastal zone management plans are legally enforceable. Undertaking development to protect or remediate beach erosion 17 in contravention of a coastal zone management plan carries a maximum penalty of $495,000 for a corporation and $247,500 for an individual. 18

The Environment Minister or local council may bring proceedings in the Land and Environment Court for orders to restrain a breach of a coastal zone management plan. 19

5.5.3.4 Removal, restoration and stop work orders

A Coastal Authority 20 (that is the designated authority 21 for the beach) may order you to remove material placed unlawfully on the beach 22 or stop work on an activity, 23 if it is of the opinion that the material is, or is likely to:

• cause increased erosion to the beach or land next to the beach;
• unreasonably limit public access to the beach or headland; or
• pose a threat to public safety.

An order to remove the material may also require you to restore any erosion caused by the material. 24

Removal and stop work orders do not apply to measures taken to protect the beach where development consent has been granted 25 or they are ‘emergency coastal protection works'. 26

Separate orders can be made by a Coastal Authority in relation to emergency coastal protection works. The Coastal Authority can order a person to remove, alter or repair emergency coastal protection works and restore the land, if it is of the opinion that the works are: 27

• causing increased erosion to the beach or to land next to the beach;
• unreasonably limiting public access to the beach or a headland;
• posing a threat to public safety; or
• not being carried out or maintained in accordance with the Coastal Protection Act.

It is a breach of the Coastal Protection Act not to comply with an order made under the Act. 28 The maximum penalty for non-compliance with an order is $11,000. 29

The Coastal Protection Act also gives the Land and Environment Court the power to make orders for the protection of beaches and the coastal environment. The Court may order a person to: 30

• make good any environmental damage;
• clean up material dumped during or following a beach erosion event; or
• prevent the recurrence of harm to the beach.

5.5.3.5 Emergency coastal protection works

When beach erosion is occurring, is imminent, or is reasonably foreseeable, 31 property owners at twelve authorised locations 32 may be allowed to place emergency works on their land or on a beach to mitigate the effects of the erosion without the need for an approval under the Coastal Protection Act or any other Act. 33 However, the owner (or occupier with the owner's consent) must still obtain a Division 2 certificate.

The types of emergency works that are allowed to be placed on the owner's land or adjoining land are currently: 34

• beach nourishment (placing extra sand); or
• fabric bags filled with sand.

The types of materials that can be used in emergency works may be increased by future Regulations made under the Coastal Protection Act. 35

You cannot use sand from the beach where works are being placed without the appropriate approvals. 36 If you do not get the relevant approvals for using sand from the beach, you may need to source sand from a supplier.

An area's coastal zone management plan may set out where sand bags or other emergency coastal protection works can or cannot be stored before they are used.

5.5.3.5.1 Placing and maintaining emergency works

When a person ‘places' the emergency works they must notify, at or about the time that the works are placed, their local council, or if the works are placed on public land, the authority that owns the land. 37 The maximum penalties for failing to notify the council or authority are $11,000 for a corporation and $5,500 for an individual. 38

The emergency works must be placed in accordance with an emergency action subplan 39 if there is one. 40

While emergency works can be placed on a person's land, they can also be placed upon public land if their Division 2 certificate authorises it, and the person takes all reasonable measures to: 41

• avoid using or occupying the public land for the placing and maintaining of the works;
• avoid damage to assets and vegetation on the public land;
• minimise risks to the public on the public land;
• maintain reasonable public access to and through the beach; and
• minimise disruption of the public use of the beach.

Emergency works can only be placed on private adjoining land if the Division 2 certificate authorises it and the certificate holder has obtained a lease, easement, right-of-way or other interest in land from the owner of the adjacent land to use and occupy the land for that purpose. 42

The Draft Minister's requirements under the Coastal Protection Act 43 and the Draft guide to the statutory requirements for emergency coastal protection works provide further guidance and practical advice on how emergency works should be placed.

5.5.3.5.2 Limits on the use of emergency protection works

The maximum period that the works are considered ‘coastal emergency protection works' is 12 months from the date of their placement. 44

The owner only gets one opportunity to put emergency works in place, but they can repair the works if it is during the time allowed for the works to remain in place. 45

Before the status of the works as ‘emergency coastal protection works' expires, 46 the owner has to remove the works and restore the land, 47 or be granted development consent under the EPA Act for the works to remain.

If you do not want to remove the works, it is a good idea to seek development consent from your council well before the 12 months is up. There is a 21 day extension from the 12 months if, on the expiry date, there is a development application relating to the coastal protection works pending under the EPA Act. 48

The emergency works may also have maintenance conditions attached to the Division 2 certificate, or be imposed by an emergency action subplan. 49 Works will cease to be ‘emergency coastal protection works' if they are not maintained in accordance with these conditions. 50

A Coastal Authority 51 may make an order for the emergency works to be removed, altered, or repaired and to restore the land if the Coastal Authority thinks that the works: 52

• are causing increased erosion;
• unreasonably limit public access to a beach or headland;
• pose a threat to public safety; or
• have ceased to be emergency coastal protection works (for example, the works have been in place for longer than the maximum period allowed, or they have not been maintained in accordance with conditions in the Division 2 certificate).

5.5.3.5.3 Division 2 certificates

Emergency works must be authorised by a Division 2 certificate, which the property owner or occupier (with the written consent of the owner) needs to apply for. 53 Once a certificate has been issued, it is valid for up to two years. 54 This means that emergency works can be placed at any time within these two years, however, you only get one attempt to put the works in place.

An application for a Division 2 certificate can be made to either your local council or to the Director-General of the Environment- through the Department of Environment, Climate Change and Water (DECCW). You will need to fill in the form, and an application fee of $110 is involved. Contact either your local council or DECCW for further information about the application process.

The Division 2 certificate may allow emergency coastal protection works to be carried out unconditionally, or it may impose conditions on the types of work, or way the work can be carried out. 55

Division 2 certificates attach to the land. 56 This means that if the land is sold with a valid Division 2 certificate, and emergency works have not been previously placed, the new owners are entitled to undertake emergency works on the land to which the certificate applies.

5.5.3.6 Long term coastal protection works

Long term coastal protection works include: seawalls, revetments (a protective wall or facing), groynes (a breakwater or structure to trap sediment) and beach nourishment (which means introducing replacement sand). 57

A landowner, local council or public authority may undertake these works independently, or a landowner may undertake these works jointly with their council or a public authority.

While these kinds of developments may be provided for under a coastal zone management plan, they will require development consent 58 before they can be commenced. However, development consent is not required if the development is being undertaken by a public authority 59 as a ‘waterway or foreshore management activity'. 60

The consent authority must not grant development consent for long term coastal protection works if they: 61

• unreasonably limit public access to the beach or headland;
• pose a threat to public safety;
• do not have satisfactory arrangements (including financial arrangements) for the restoration of the beach or headland, if they cause increased erosion; or
• do not have satisfactory arrangements (including financial arrangements) for their maintenance.

If long term works start to cause increased erosion, unreasonably limit access or pose a threat to public safety, Coastal Authorities have the power to issue stop work orders or have the works removed. 62

If long term works are undertaken by your council, the council may charge you annually for the coastal protection services that they provide. 63 In making and levying this charge, your council is to have regard to the guidelines that the Environment Minister prepares in relation to charging for coastal protection services. 64

5.5.3.7 Coastal Panel

The NSW Coastal Panel was established in 2011 under the Coastal Protection Act. The Coastal Panel's functions are to: 65

• advise the Environment Minister on any matter referred to it by the Environment Minister relating to the coastal zone or connected to the operation of the Coastal Protection Act;
• advise local councils on matters that the Environment Minister determines and notifies the Coastal Panel of;
• carry out functions conferred or imposed on it by the EPA Act relating to the granting of development consent; and
• carry out any other functions imposed on it by any other statute.

For example, the Coastal Panel may be required to comment on a public authority's proposal to carry out development for erosion control where a council does not have a coastal zone management plan in place. 66

The Coastal Panel is made up of the 7 members, who are appointed by the Environment Minister: 67

• one is to be nominated by the Director-General of the Department of Environment, Climate Change and Water;
• one is to be nominated by the Director-General of the Department of Planning;
• three are to be nominated by the Local Government and Shires Association of New South Wales;
• one is to be nominated by the Chief Executive of the Land and Property Management Authority; and
• one is to be appointed by the Environment Minister with the concurrence of the Local Government and Shires Association of New South Wales.

Each member 68 is to have qualifications and experience relevant to coastal planning, coastal engineering, coastal geomorphology, coastal management or estuary management. 69 When making an appointment, the Environment Minister must have regard to the need to have a range of expertise represented across the Coastal Panel. 70

5.5.4 Coastal protection under SEPPs

There are a number of State Environmental Planning Policies (SEPPs) which regulate development in coastal areas. Their provisions are to be considered by authorities in conjunction with the relevant sections of the Coastal Protection Act 1979 and the Environmental Planning and Assessment Act 1979 when an application for development in the coastal zone is being assessed.

5.5.4.1 SEPP 71 - Coastal Protection

This is the main SEPP controlling development in the coastal zone. 71 As with all other SEPPs, it is legally enforceable.

5.5.4.1.1 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 environmental plan or determining a development application. 72

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;
• measures to conserve threatened animals, plants and fish;
• protecting existing wildlife corridors; and
• the likely impact of coastal processes and coastal hazards on development.

5.5.4.1.2 Certain developments must not be approved

SEPP 71 provides that a consent authority must reject development applications that will:

• impede or diminish access to coastal foreshores; 73
• result in effluent discharge that negatively affects water quality; 74 or
• involve a discharge of untreated storm water into the sea, a beach, an estuary, or coastal lake or creek. 75

5.5.4.1.3 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. 76

Under SEPP 71, master plans are required for: 77

• subdivision of land with a residential or rural/residential zone in a ‘sensitive coastal location'; 78
• subdivision not within a ‘sensitive coastal location', but which is:
• for more than 25 lots; or
• within a rural/residential zone into more than 5 lots.

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. 79

5.5.4.1.4 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. 80 The Director-General has 28 days within which to specify any additional matters that the council must take into consideration when deciding whether or not to approve the development.

Following amendments to SEPP 71, many of the provisions concerning significant coastal development were transferred to SEPP (Major Development) 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.

5.5.4.2 SEPP (Major Development) 2005

SEPP (Major Development) 2005 identifies some of the developments that can be classified as major projects and therefore require the approval of the Planning Minister under Part 3A. See Fact Sheet 2.3 for more information on Part 3A.

SEPP (Major Development) provides that if, in the opinion of the Planning Minister, a development is one that falls within a category listed in the SEPP, Part 3A of the EPA Act will apply to that development. Some of the categories include certain: 81

• intensive livestock industries and aquaculture developments;
• mining, petroleum and extractive industries;
• landfill facilities;
• marinas;
• recreational or tourist facilities;
• developments in a ‘sensitive coastal location'; 82 and
• subdivisions.

The SEPP also provides that the Planning Minister is the consent authority under Part 3A for developments which take place in an environmentally sensitive area of State significance, which include many coastal areas such as: SEPP 14 wetlands, Ramsar wetlands and marine parks. 83

5.5.4.3 Infrastructure SEPP

The State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) deals with a wide range of infrastructure projects, such as telecommunications facilities, sewerage works and stormwater management works. It specifies when development consent is (and is not) required for development to be carried out for certain types of development in certain zones.

The Infrastructure SEPP provides that development for the purpose of waterway or foreshore management activities may be carried out by or on behalf of a public authority 84 without development consent. 85 However, the public authority must consider the relevant provisions of the area's coastal zone management plan before carrying out any ‘new coastal protection works'. 86

Waterways or foreshore management activities include the following activities: 87

• erosion control;
• beach nourishment;
• dune or foreshore stabilisation activities;
• headland management;
• ensuring foreshore access ways;
• coastal protection works; and
• salt interception schemes.

If there is no coastal zone management plan in force, the public authority must notify the Coastal Panel before carrying out any new coastal protection works. The public authority must take into consideration any response received from the Coastal Panel within 21 days of the notification. 88

The Infrastructure SEPP provides that development for the purposes of a sea wall or beach nourishment may be carried out by any person, but consent is required. 89 If there is no coastal zone management plan for the area, the Coastal Panel is the consent authority for these developments. 90

5.5.4.4 SEPP 14 – Coastal Wetlands

SEPP 14 Coastal Wetlands aims to protect and preserve coastal wetlands. 91

The areas covered by the SEPP are shown on a series of maps held by the Department of Planning. 92 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 SEPP except with the consent of the local council and the concurrence (agreement) of the Director-General of Planning. 93 A copy of all development applications for such activities must also be forwarded by the local council to the Director of National Parks and Wildlife within 7 days. 94

Activities on SEPP 14 wetlands which require development consent are deemed to be designated development, which means the development application must be accompanied by an environmental impact statement and be placed on public exhibition for public comment. 95

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-General of Planning. 96

5.5.4.5 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 SEPP also applies to land within 100 metres of the boundary of a SEPP 14 wetland. 97

Development consent is required for the following activities in littoral rainforests: 98

• 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; or
• disturbing native flora (clearing).

These activities are deemed to be designated development, which means the development application must be accompanied by an environmental impact statement and be placed on public exhibition for public comment. 99 The local council remains the consent authority for developments applying to SEPP 26 littoral rainforests and the concurrence (agreement) of the Director-General of the Department of Planning is also required. 100

5.5.4.6 SEPP 50 – Canal Estate Development

Canal estate developments are prohibited under SEPP 50, which was introduced in November 1997.

A ‘canal estate development' is a development (which includes dwellings or tourist accommodation) incorporating a canal that is interconnected with a natural waterway or groundwater. 101

The SEPP applies to the whole State. 102

5.5.4.7 SEPP 62 – Sustainable Aquaculture

SEPP 62 regulates aquaculture activities in NSW.

The SEPP 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). 103

The SEPP applies to the following classes of aquaculture:

• tank-based aquaculture (e.g. barramundi or abalone);
• pond-based aquaculture (e.g. prawns and yabbies); and
• natural water-based aquaculture (e.g. oysters and caged fin fish).

The areas where aquaculture activities must not be carried out are set out in Schedules 1 and 1A to the SEPP. Even if aquaculture activities appear to be permitted under Schedules 1 and 1A, you must check your relevant local environmental plan 104 to see whether aquaculture activities require consent in a specific local government area.

The SEPP establishes minimum performance criteria for aquaculture activities. 105 Any type of aquaculture proposal that is not permissible under the SEPP is prohibited. 106 Proposals that meet the minimum criteria can be undertaken, but only once development consent is obtained.

Some aquaculture developments may qualify as major projects which will mean that the Minister for Planning will be the consent authority and the project will be assessed under Part 3A of the EPA Act. 107

Aquaculture also requires a permit from Industry and Investment NSW. 108

5.5.5 Local Environmental Plans and s. 117 Directions

5.5.5.1 Local Environmental Plans

Local Environmental Plans (LEPs) 109 are planning instruments that set out what types of development are (or are not) permitted in different zones in a local government area.

New LEPs are now required to use the relevant clauses of the Standard Instrument- Principal Local Environment Plan (Standard LEP) as a template. The Standard LEP includes two clauses specifically dealing with coastal issues.

Clause 5.5 applies to ‘d evelopment within the coastal zone'. Its objectives include: 110

• to protect the coastal environment through promoting the principles of ecologically sustainable development; and
• to implement the principles in the NSW Coastal Policy.

Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered:

• existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to maintaining and improving public access;
• the suitability of the proposed development given the type of development, the location and the bulk, scale, size and overall design of any building or work involved;
• the impact of the proposed development on the amenity of the coastal foreshore;
• how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected;
• how biodiversity and ecosystems can be conserved, including native vegetation, wildlife corridors, rock platforms, the water quality of coastal waterbodies and native fauna and native flora, and their habitats;
• the effect of coastal processes and coastal hazards and potential impacts, including sea level rise, on the proposed development and arising from the proposed development; and
• the cumulative impacts of the proposed development and other development on the coastal catchment.

Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that:

• the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore;
• if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform; and
• the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform.

Clause 5.7 applies to developments on land containing tidal waters. It states that proposed developments on tidal land below the mean high water mark require consent from council. 111

5.5.5.2 Section 117 Directions

Section 117 of the EPA Act empowers the Planning Minister to give directions (known as s. 117 Directions) to a particular council, or to all councils generally, as to what they must include when drafting their LEPs. 112 Three s. 117 Directions are particularly applicable to draft LEPs for areas within the coastal zone.

5.5.5.2.1 Direction 1.4-Oyster Aquaculture

This direction applies when a draft LEP proposes a change in land use that could result in adverse impacts on, or an incompatible use of land with, a Priority Oyster Aquaculture Area 113 or a current oyster aquaculture lease in the national parks estate (oyster aquaculture areas). 114

Where this direction applies, the planning authority (usually the council) must identify oyster aquaculture areas and consult with the Director-General of Industry and Investment NSW. The consultation must consider whether the proposed changes are likely to affect or be incompatible with the oyster aquaculture areas.

5.5.5.2.2 Direction 2.2- Coastal Protection

This direction applies to any draft LEP for land within the ‘coastal zone'. It aims to implement the principles of the Coastal Policy. Where this direction applies, the planning authority drafting the LEP must consider:

• the NSW Coastal Policy;
• the Coastal Design Guidelines 2003 ; and
• the NSW Coastline Management Manual 1990 .

5.5.5.2.3 Direction 4.3- Flood Prone Land

Many low-lying coastal areas are also flood prone areas. If a planning authority prepares a draft LEP that creates, removes or alters a zone or a provision affecting flood prone land, it must ensure that the draft LEP includes provisions to give effect to, and be consistent with:

• the Floodplain Development Manual 2005 ; and and
• the Guideline on Development Controls on Low Flood Risk Areas .

5.5.6 NSW Sea Level Rise Policy Statement and the NSW Coastal Planning Guideline

In October 2009, the NSW Government set out its ‘objectives and commitments for action on adapting to sea level rise' 115 in the NSW Sea Level Rise Policy Statement (Statement).

The Statement commits the NSW Government to the following: 116

• promoting an adaptive risk-based approach to managing the impacts of sea level rise;
• providing guidance to local councils to support their sea level rise adaptation planning;
• encouraging appropriate development on land projected to be at risk from sea level rise;
• continuing to provide emergency management support to coastal communities during times of floods and storms; and
• continuing to provide up-to-date information to the public about sea level rise and its impacts.

5.5.6.1 Sea level rise benchmarks

The Statement also specifies sea level planning benchmarks for the State's coastline. These benchmarks anticipate an increase above 1990 mean sea levels of 40 centimetres by 2050 and 90 centimetres by 2100. 117 The benchmarks can be used for decisions relating to: 118

• predicted flood risks and coastal hazards;
• designing and upgrading public and private assets in low-lying coastal areas;
• assessing the influence of sea level rise on new developments;
• considering the impact of sea level rise on coastal and estuarine habitats (e.g. salt marshes) and identifying valuable habitats most at risk from sea level rise; and
• assessing the impact of changed salinity levels in estuaries, including the implications for access to fresh water.

These benchmarks have been adopted in the NSW Planning Guideline: Adapting to Sea Level Rise , (Planning Guideline) released in August 2010.

The Planning Guideline applies to all of NSW and is to be used by councils and other consent authorities when making land use and development assessment decisions for coastal areas.

The Planning Guideline adopts six coastal planning principles, which are to be applied by councils and consent authorities in their decision-making processes. These principles are: 119

• assess and evaluate coastal risks taking into account the NSW sea level rise planning benchmarks;
• advise the public of coastal risks to ensure that informed land use planning and development decision-making can occur;
• avoid intensifying land use in coastal risk areas through appropriate strategic and land use planning;
• consider options to reduce land use intensity in coastal risk areas where feasible;
• minimise the exposure of development to coastal risks; and
• implement appropriate management responses and adaptation strategies, with consideration for the environmental, social and economic impacts of each option.

5.5.6.2 How is the Planning Guideline enforced?

While the Planning Guideline is a policy document, its consideration and adoption will ensure that the following coastal laws are implemented more consistently: 120

• SEPP 71 - Coastal Protection;
• Section 117 Direction 2.2- Coastal Protection;
• Section 117 Direction 4.3- Flood Prone Land; and
• Standard Instrument: Principal Local Environment Plan, clause 5.5.

5.5.7 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 by the Coastal Protection Act.

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 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; and
• a requirement that new tourist developments not impede public access to beaches and foreshores.

5.5.7.1 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 consent authorities consider the provisions of SEPP 71 for development applications in the coastal zone; 121
• a requirement that all local environmental plans give effect to the Coastal Policy in accordance with the s. 117 Direction (2.2-Coastal Protection) of the Planning Minister;
• a requirement that a local council must consider the Coastal Policy when determining a development application in the coastal zone; 122 and
• 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.

5.5.8 Coastal protection under Federal environmental law

5.5.8.1 Environment 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 or proposed activities. Although there is no direct ‘coastal' trigger, many of the other triggers may be applicable to proposed 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 wetland);
• a nationally listed threatened species or ecological community;
• a listed migratory species; or
• 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.

5.5.8.2 How can I find out if the EPBC Act applies in a coastal area?

The Commonwealth's Department of Sustainability, Environment, Water, Population and Communities 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 showing all of the Matters of National Environmental Significance in your area which are protected under the EPBC Act (e.g. the Report will show any World Heritage sites, National Heritage places, Ramsar wetlands or endangered species, etc in your area).

5.5.9 Coastal protection and climate change

Climate change is likely to bring with it new threats to the NSW coast.

5.5.9.1 Potential coastal impacts

The potential impacts of climate change on the coast include: 123

• 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 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. 124

5.5.9.2 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 Sea Level Rise Policy Statement and the NSW Planning Guideline: Adapting to Sea Level Rise;
• Coastal Policy - 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 zone; 125 and
• SEPP 71 – Coastal Protection. 126

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 could include the impacts of climate change. 127

5.5.9.2.1 Climate change and Part 3A major 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).

5.5.9.3 Mapping project for NSW Central and Hunter coasts

The NSW Department of Planning has 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.

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.

5.5.9.4 Federal Mapping project – OzCoasts

The Federal Government has produced a series of maps covering several NSW coastal regions, including the Sydney metropolitan region, the Central Coast and the Hunter.

The maps have been prepared by the Commonwealth Scientific and Research Organisation (CSIRO) and they illustrate a flooding event that could be expected to occur at least once a year and possibly more frequently, around the year 2100.

The maps cover three sea level rise scenarios based on CSIRO predictions for the year 2100: low (0.5 m) rise, medium (0.8m) rise and high (1.1m rise). The maps are approximate and do not take into account local factors such as existing and future coastal protection works (such as seawalls), erosion events and storm surges.

The OzCoasts maps provide an additional tool for government authorities, businesses and communities to consider when they are making long-term coastal planning and development decisions.

The maps are available for viewing on the OzCoasts website.

1. Coastal Protection Act 1979 (NSW), s. 4A(1).
2. Coastal Protection Act 1979 (NSW), s 4B.
3. Coastal Protection Act 1979 , s. 38(1).
4. Coastal Protection Act 1979 , s. 39(1).
5. Coastal Protection Act 1979, s. 44.
6. Coastal Protection Act 1979 , s. 42.
7. Coastal Protection Act 1979 , s. 46.
8. Coastal Protection Act 1979 , s. 51.
9. In this section, the definition of ‘coastal zone' is expanded to include land that adjoins the tidal
10. waters of the Hawkesbury River , Sydney Harbour and Botany Bay , and their tributaries: Coastal Protection Act 1979 , s. 55B(9).
11. Coastal Protection Act 1979 , s. 55B (1).
12. Coastal Protection Act 1979 , s. 55B (5).
13. Coastal Protection Act 1979 , s. 55C. The Draft Guideline for preparing coastal zone management plans specifies additional requirements that these plans must address. Department of Environment, Climate Change and Water
14. Coastal Protection Act 1979 , ss. 55E and 55F.
15. Coastal Protection Act 1979 , s. 55G.
16. The manner of consultation is to be specified in guidelines prepared by the Minister: Coastal Protection Act 1979, s. 55G(2). The purpose of this requirement is so that there is consistency and agreement between authorities in undertaking coastal management and protection. For example, the Minister may require consultation with the authority responsible for Crown land- the Land and Property Management Authority.
17. Coastal Protection Act 1979 , s. 55G(3).
18. This does not include development which has been granted consent or an approval under the Environmental Planning and Assessment Act 1979 (NSW) or ‘emergency coastal protection work' under Part 4C of the Coastal Protection Act 1979 .
19. Coastal Protection Act 1979 , s. 55K.
20. Coastal Protection Act 1979 , s. 55L.
21. A ‘Coastal Authority' includes the Environment Minister, the Minister for Lands, a local council and the Roads and Traffic Authority: Coastal Protection Act 1979 , s. 6.
22. ‘Designated authority' always means the Minister for Climate Change and the Environment. It may also mean the local council, where the land or beach is within, or adjacent to the local government area; the Minister for Lands if the land is Crown land under the Crown Lands Act 1989 ; or another public authority if that authority is the owner or has the care, control and management of the land. See the Coastal Protection Act 1979, s. 4C.
23. Coastal Protection Act 1979 , s. 55ZA(1).
24. Coastal Protection Act 1979 , s. 55ZB.
25. Coastal Protection Act 1979 , s. 55ZA(3).
26. Under the Environmental Planning and Assessment Act 1979 (NSW). This provision also does not apply to projects approved under Part 3A of this Act: Coastal Protection Act 1979 , ss. 55ZA(6), 55ZB(2).
27. Which are undertaken in accordance with Part 4C of the Coastal Protection Act 1979 , ss. 55ZA(7), 55ZB(3).
28. Coastal Protection Act 1979 , s. 55ZC.
29. Coastal Protection Act 1979 , s. 57(1).
30. Coastal Protection Act 1979 , s. 58(1).
31. Coastal Protection Act 1979 , s. 56A.
32. See clause 1.1 of the ‘Draft Minister's requirements under the Coastal Protection Act 1979' for circumstances where it is likely that beach erosion is imminent for the purposes of s. 55P(2). Department of Environment, Climate Change and Water
33. The current locations are: Basin Bay/Beach, Mona Vale; Belongil Beach, Byron Bay; Bilgola Beach, Bilgola; Brooms Head, north of the outlet from Cakora Lagoon; Collaroy Beach, Collaroy; Hargraves Beach, Noraville; Narrabeen Beach, Narrabeen; North Entrance Beach, The Entrance (North); Mollymook Beach, Mollymook; Pearl Beach, Pearl Beach; Wamberal Beach, Wamberal; and Wooli Beach, Wooli. They are listed in Schedule 1 of the ‘Draft Minister's requirements under the Coastal Protection Act 1979' . Department of Environment, Climate Change and Water
34. Coastal Protection Act 1979 , s. 55O.
35. The draft ‘Minister's Requirements under the Coastal Protection Act ' details the likely standards that will be included in the Regulations for emergency coastal protection works. The draft ‘Guide to the statutory requirements for emergency coastal protection works' also contains useful information on how to comply with the legislation. Department of Environment, Climate Change and Water
36. Coastal Protection Act 1979 , s. 55P(1)(b).
37. Coastal Protection Act 1979 , s. 55P(1). If you are intending to use sand from the beach or adjoining land, you should contact your local council for more information on what approvals you will need. For example, you may need development consent under the EPA Act, and where the beach is Crown land, you may also need an agreement from the Land and Property Management Authority.
38. Coastal Protection Act 1979 , s. 55X(1).
39. Coastal Protection Act 1979 , s. 55X(2).
40. An ‘emergency action subplan' is the part of the coastal zone management plan that deals with what actions may be carried out during emergency periods of beach erosion: Coastal Protection Act 1979 , s. 4. They should be prepared by councils for coastal areas where developments and infrastructure could be at risk from an extreme storm event. They should be prepared in conjunction with representatives of the State Emergency Service and NSW Police and be consistent with the local NSW Statewide Disaster Management Plan (DISPLAN).
41. Coastal Protection Act 1979 , s. 55P(2)(d).
42. Coastal Protection Act 1979 , s. 5Z(1).
43. Coastal Protection Act 1979 , s. 55Z(2).
44. Before any Regulations are made under the Coastal Protection Act, the Minister may publish the ‘Minister's Requirements under the Coastal Protection Act ' in the NSW Government Gazette, which would make the requirements legally binding for emergency coastal protection works placed before the 1 September 2011: Coastal Protection Act, s. 55P(2)(e).
45. Coastal Protection Act 1979 , s. 55Q(1).
46. Coastal Protection Act 1979 , s. 55S.
47. This is 12 months from the date that the works are placed.
48. Coastal Protection Act 1979 , s. 55Y.
49. Coastal Protection Act 1979 , s. 55Q(2).
50. Coastal Protection Act 1979 , s. 55R.
51. Coastal Protection Act 1979 , s. 55R(2).
52. ‘Coastal Authority' is either the Environment Minister, the Minister for Lands, a council or roads authority (within the meaning of the Roads Act 1993 ) located within the coastal zone or having land that adjoins the tidal waters of the Hawkesbury River , Sydney Harbour and Botany Bay and their tributaries.
53. Coastal Protection Act 1979 , s. 55ZC.
54. Coastal Protection Act 1979 , s. 55T. The authorities that can issue a Division 2 certificate include the local council or the Director-General of the Department of Environment, Climate Change and Water.
55. Coastal Protection Act 1979 , s. 55U.
56. Coastal Protection Act 1979 , s. 55T(3).
57. Coastal Protection Act 1979 , ss. 55T(5), 55ZH.
58. Coastal Protection Act 1979 , s. 4. For further information about each of these coastal protection works, see section 5.2.4 of the ‘NSW Coastline Management Manual 1990', available here: http://www.environment.gov.au/coasts/publications/nswmanual/index.html .
59. Under the Environmental Planning and Assessment Act 1979 . For more information on development applications under this Act, see Fact Sheet 2.2.
60. State Environmental Planning Policy (Infrastructure) 2007 , cl. 129. ‘Public authorities' include local councils, government departments and statutory bodies representing the Crown. Environmental Planning and Assessment Act 1979 (NSW), s. 4; State Environmental Planning Policy (Infrastructure) 2007 , cl. 5. If the development is for ‘new coastal protection works' the public authority will have to take into consideration any relevant provisions of a coastal zone management plan before carrying out the works. If there is no coastal zone management plan in force, the public authority must notify the Coastal Panel of the works and consider any response received from the Coastal Panel within 21 days of the notification: State Environmental Planning Policy (Infrastructure) 2007 , cl. 129 (2A) and 129(2B).
61. Environmental Planning Policy (Infrastructure) 2007 , cl. 128.
62. Coastal Protection Act 1979 , s. 55M.
63. Coastal Protection Act 1979 , ss. 55ZA(1), 55ZB.
64. Coastal Protection Act 1979 , s. 55M(2)(b); Local Government Act 1993 , s. 496B. To see whether it is likely that this charge will be imposed, see the ‘Draft Coastal Protection Service Guidelines' p. 5, Department of Environment, Climate Change and Water.
65. Local Government Act 1993 , s. 496B(9).
66. Coastal Protection Act 1979 , s. 13(1).
67. See State Environmental Planning Policy (Infrastructure) 2007 , cl. 129A(2B).
68. Coastal Protection Act 1979 , s. 12(2).
69. Except for the last-listed member.
70. Coastal Protection Act 1979 , s. 12(4).
71. Coastal Protection Act 1979 , s. 12(6).
72. SEPP 71, cl. 4. But the Policy does not apply if SEPP 62 – Sustainable Aquaculture applies.
73. SEPP 71, cll. 7 and 8.
74. SEPP 71, cl. 14.
75. SEPP 71, cl. 15.
76. SEPP 71, cl. 16.
77. SEPP 71, Part 5, cll. 17 – 24.
78. SEPP 71, cl. 18.
79. SEPP 71, cl. 3 Definition of sensitive coastal location. Sensitive coastal location means:  land within 100m above mean high water mark of the sea, a bay or an estuary; a coastal lake; a Ramsar wetland; a World Heritage property; an aquatic reserve; a marine park; land within 100m of any of the water's edge of a coastal lake, a Ramsar wetland, a World Heritage property, an aquatic reserve, a marine park, land reserved under the National Parks and Wildlife Act 1974 or a SEPP 14 coastal wetland;  residential land (within the meaning of State Environmental Planning Policy No 26—Littoral Rainforests ) that is within a distance of 100m from the outer edge of a SEPP 26 littoral rainforest.
80. SEPP 71, cll. 20, 21 and 22.
81. SEPP 71, Part 3, cl. 11.
82. SEPP (Major Development), Schedules 1 and 2.
83. SEPP 71, cl. 3 Definitions ‘Sensitive coastal location' means:  land within 100m above mean high water mark of the sea, a bay or an estuary; a coastal lake; a Ramsar wetland; a World Heritage property; an aquatic reserve; a marine park; land within 100m of any of the water's edge of a coastal lake, a Ramsar wetland, a World Heritage property, an aquatic reserve, a marine park, land reserved under the National Parks and Wildlife Act 1974 or a SEPP 14 coastal wetland;  residential land (within the meaning of State Environmental Planning Policy No 26—Littoral Rainforests ) that is within a distance of 100m from the outer edge of a SEPP 26 littoral rainforest.
84. SEPP (Major Development), cl. 3 (Definitions) ‘environmentally sensitive area of State significance' means: coastal waters of the State; SEPP 14 coastal wetlands; aquatic reserves; marine parks; Ramsar wetlands, world heritage areas; land identified in an environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance; land reserved as a State conservation area under the National Parks and Wildlife Act 1974 ; land, places, buildings or structures listed on the State Heritage Register; land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna, geological formations or for other environmental protection purposes; or land identified as being critical habitat under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994 .
85. The definition of ‘public authority' is found in the EPA Act, s.4 and includes: a public or local authority constituted by or under an Act; a government Department; a statutory body representing the Crown; a chief executive officer (including the Director-General); a statutory State owned corporation (and its subsidiaries) or a CEO of such a corporation; or a person prescribed by the regulations for the purposes of this definition. Infrastructure SEPP, cl. 5.
86. This clause does not apply to ‘emergency coastal protection works' as defined in the Coastal Protection Act (see above at 3.5); see Infrastructure SEPP, cl. 129(2)(c).
87. Infrastructure SEPP, cl. 129(2A). ‘New coastal protection works' means coastal protection works other than the placement of sand (including for beach nourishment), sand bags or the replacement, repair or maintenance of any such works: Infrastructure SEPP, cl. 129(2B).
88. Infrastructure SEPP, cl. 128.
89. Infrastructure SEPP, cl. 129(2A)(b).
90. Infrastructure SEPP, cl. 129A(1).
91. Infrastructure SEPP, cl. 129A(2).
92. SEPP 14, cl. 2.
93. SEPP 14, cll. 3 and 4.
94. SEPP 14, cl. 7.
95. SEPP 14, cl. 8.
96. SEPP 14, cl. 7(3).
97. SEPP 14, cl. 7A.
98. SEPP 26, cl. 4.
99. SEPP 26, cl. 7.
100. SEPP 26, cl. 6.
101. SEPP 26, cl. 7(3). Where the development is classed as ‘integrated development' (see s. 91 of the EPA Act and Fact sheet 2.2.4), concurrence is required from the Minister for Planning: SEPP 26, cl.7(4).
102. SEPP 50, cl. 3.
103. SEPP 50, cl. 4.
104. SEPP 62, cl. 4.
105. For more information on local environmental plans, see Fact sheet 2.1.
106. SEPP 62, cl. 7(2) and 8(2).
107. SEPP 62, cl 11.
108. SEPP(Major Development), Schedule 2(2).
109. Fisheries Management Act 1994 (NSW), s. 144.
110. For more information on LEPs see Fact sheet 2.1.
111. Standard Instrument- Principal Local Environment Plan (NSW), cl. 5.5.
112. Standard Instrument- Principal Local Environment Plan (NSW), cl. 5.7(2).
113. EPA Act, s. 117(2A).
114. An area identified in the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS) , Department of Primary Industries, available here .
115. ‘National park estate' means land declared a wilderness area under, land dedicated or reserved under the National Parks and Wildlife Act 1974 (NSW), Forestry Act 1916 (NSW) or the Crown Lands Act 1989 (NSW): Forestry and National Park Estate Act 1998 (NSW), s. 3.
116. ‘NSW Sea Level Rise Policy Statement' , Department of Environment, Climate Change and Water
117. ‘NSW Sea Level Rise Policy Statement' , Department of Environment, Climate Change and Water, page 3.
118. ‘NSW Sea Level Rise Policy Statement' , Department of Environment, Climate Change and Water, page 1.
119. ‘NSW Sea Level Rise Policy Statement' , Department of Environment, Climate Change and Water, page 4.
120. ‘NSW Coastal Planning Guideline: Adapting to Sea Level Rise' , Department of Environment, Climate Change and Water, page 2.
121. ‘NSW Coastal Planning Guideline: Adapting to Sea Level Rise' , Department of Environment, Climate Change and Water
122. Except for development applications to which SEPP 62 applies: SEPP 71, cl. 4(2)(b)(i).
123. Environmental Planning and Assessment Regulation 2000 (NSW), cl. 92(1)(a).
124. ‘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, page 9.
125. ‘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, page 9.
126. Environmental Planning and Assessment Regulation 2000 (NSW), cl. 92.
127. SEPP 71, cl. 8(j).
128. 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.