© 2007 Environmental Defender's Office (Ltd) NSW
The information contained in this fact sheet is current as at 21 May 2007.
This section describes the legal framework regulating development in coastal areas.
For information on marine protected areas and protection of marine species, see Topic 5 – Biodiversity. For information on pollution, including water pollution, see Topic 3 – Pollution.
Like development in the rest of New South Wales, coastal development is controlled by the Environmental Planning and Assessment Act. For more information about environmental planning and development assessment, see Topic 2 – Planning and Development.
To learn more about coastal protection law in New South Wales, read the Total Environment Centre publication Protecting the Coast: A Guide to New South Wales Law, prepared by the Environmental Defender's Office in 2003. The guide is available free online at: www.tec.org.au.
Where development is occurring or proposed in a coastal zone, check whether any local environment plans (LEPs), regional environmental plans (REPs) or state environmental planning policies ( SEPPs) apply to the development. These plans and policies can be accessed online at www.legislation.nsw.gov.au
There are a number of SEPPs relevant to coastal development:
These policies are discussed in more detail below.
The New South Wales Coastal Policy also contains guidelines on protection of coastal areas. This policy is discussed in more detail below.
Coastal Protection Act 1979
This Act regulates development and other activities undertaken by public authorities in the coastal zone of NSW. This zone excludes the parts of Pittwater, Warringah, Manly, Woollahra, Waverley, Randwick and Sutherland that are not affected by coastal processes and also excludes Sydney Harbour and Botany Bay. [1]
The primary objective of the Act is to provide for the protection of the coastal environment of the State ‘for the benefit of both present and future generations'. [2]In particular, the Act aims to protect, enhance, maintain and restore the environment of the coastal region and also to have regard to principles of ecologically sustainable development.
The Act prohibits a public authority from carrying out development in the coastal zone, or from authorising another person to develop or use the coastal zone, without the consent of the Minister, if the Minister is of the opinion that the development;
However, the Governor may, on the advice of the Minister, state that this prohibition does not apply to certain areas. The Minister may also recommend that the Governor makes an order that prohibits Councils from carrying out certain classes of development or to grant rights of use without the consent of the Minister. [6]If a public authority wishes to carry out such a development, it must advise the Minister of the development in writing. [7]The Minister must respond within 40 days to either refuse or permit the development. If the Minister does not respond within this time, the development may go ahead. [8]
Any Council whose area falls within the coastal zone is required to make a Coastal Zone Management Plan. [9]The plan must address three things;
Once Council drafts a plan, it must publish a notice in the local newspaper advising the public of when and where the plan can be inspected. [11]Council must then publicly exhibit the plan. During the period of exhibition, any person may make a written submission and all submissions must be considered by Council. [12]Once Council has decided to adopt the Plan, the Plan is sent to the Minister for final approval. [13]
The Act also allows the Minister to direct that remediation works occur for the ‘preservation, protection, maintenance, restoration or improvement of the coastal zone' where the Minister believes such works are necessary. [14]
State Environmental Planning Policy No. 14 – Coastal Wetlands
State Environmental Planning Policy No. 14 aims to preserve and protect coastal wetlands in the environmental and economic interest of the State. [15] It does this by defining as ‘designated development' any development that involves clearing, draining or filling wetlands, or constructing levees on wetlands.. [16]
Designated developments require more stringent environmental impact assessment. An environmental impact statement must be prepared [17] and the consent authority must place the development application and any accompanying information, including the environmental impact statement on public exhibition [18] Any person may comment on or object to the development proposal. [19]
If the development is approved, any person who has lodged an objection may seek a review of the merits of that decision in the Land and Environment Court. [20] For more information on designated development, see Section 2.1.2 – Development Assessment.
Local Councils are generally the consent authority for development under the Policy, unless the development is state significant development. However, the Director General of the Department of Planning must agree to any proposed development on coastal wetlands. [22] In deciding whether to agree, the Director must consider certain matters, including:
Coastal wetlands protected by the policy are identified on a series of maps, [24] which can be inspected at the head office of the Department Planning and at some local council offices. [25]
The Minister for Planning has considerable discretion to include or remove an area of wetland from the protected wetland maps, with no provision for public participation or comment. There is also no legal requirement to refer to the original selection criteria for wetlands to be protected under the policy.
Text Box 4.4 – Coastal Wetlands Case Study The Myall Koala and Environment Support Group is a residents group from Winda Woppa, in the Great Lakes Shire. The group aims to promote the long-term survival of koalas in the area. Great Lakes Shire Council sought approval to develop a wetland area, near a known koala habitat, for a boat ramp, car park and associated facilities for 70 cars and 50 trailers. The impetus for the boat ramp was that the Council could get 75 per cent of the funding for the project from the Department of Public Works. As the wetland was included on the coastal wetland maps prepared under State Environmental Planning Policy No. 14, the development was deemed to be designated development and could not be carried out by the Council without preparing an environmental impact statement. The Council prepared the environmental impact statement, then approved its own development application. The Myall Koala and Environmental Support group lodged an appeal to the Land and Environment Court. The Environmental Defender's Office represented the group in Court. After hearing evidence from an expert on migratory bird habitat, and a planner on the availability of other boat ramps in the area, the Court overturned the approval of the boat ramp. [27] State Environmental Planning Policy No. 14 requires the Director General to consider whether carrying out the development would be consistent with the aim of the policy, namely to protect coastal wetlands. [28] Justice Bignold criticised the apparent rubber-stamping of this particular approval by a delegate of the Director General. |
State Environmental Planning Policy No. 26 – Littoral Rainforests
State Environmental Planning Policy No. 26 requires decision-makers to carefully consider development applications likely to damage or destroy littoral rainforest (rainforests in coastal areas). [29]
Littoral rainforests protected by the policy are identified on a series of maps held by the Department of Planning and by relevant local councils. [30] Littoral rainforest may be mapped to include a buffer zone of up to 100 metres from the edge of the map zone to protect the periphery of the area. [31]
Development consent is required for any of the following activities within an area of protected littoral rainforest:
These activities are considered to be designated development and also require the agreement of the Director General of the Department of Planning or, in some cases, the Minister for Planning. [33] For more information about environmental assessment requirements for designated development, see Section 2.1.2 – Development Assessment.
In some areas, the littoral rainforest buffer zone overlaps with coastal wetlands. Where this happens, State Environmental Planning Policy No. 14 and State Environmental Planning Policy No. 26 both apply. In the event of any inconsistency, State Environmental Planning Policy No. 26 prevails to the extent of the inconsistency. [34]
State Environmental Planning Policy No. 50 – Canal Estate Development
State Environmental Planning Policy No. 50 aims to prohibit the development of canal estates in all coastal areas in New South Wales. [35] Special provisions apply to development applications lodged before the policy was introduced in November 1997. [36]
State Environmental Planning Policy No. 56 – Sydney Harbour Foreshores and Tributaries
State Environmental Planning Policy No. 56 aims to coordinate the planning and development of the foreshores of Sydney Harbour. [37]
Development on harbour foreshore land listed in Schedule 1 of the policy is declared to be state significant development, requiring the approval of the Minister for Planning. [38] Sites of strategic significance are identified in Schedule 2 of the Policy.
Development consent must not be granted for scheduled development or sites of strategic significance unless there is a master plan for the land and the development is consistent with that plan. [39]
The policy also contains guiding principles, which a master plan and any environmental planning instrument must consider, including increased public access to foreshore land, conservation of foreshore bushland, heritage value and environmentally sustainable development principles. [40]
State Environmental Planning Policy No. 62 – Sustainable Aquaculture
State Environmental Planning Policy No. 62 regulates aquaculture activities in New South Wales. The Policy aims to encourage sustainable aquaculture, to outline the operational requirements for permissible aquaculture and to establish development assessment standards for aquaculture in NSW. [41]
The Policy defines ‘aquaculture' as cultivating fish or marine vegetation for the purposes of harvesting and selling them. [42]
The policy applies to the following classes of aquaculture:
The policy applies to tank and pond-based aquaculture in the local government areas set out in Schedule 1 to the policy (which are mostly located in northern New South Wales ) and for natural water-based aquaculture throughout New South Wales set out in Schedule 2. [44]
Tank and pond-based aquaculture is only regulated if it is 'intensive' That is, if it involves providing supplementary food to the fish or marine vegetation. [45]
The policy establishes minimum performance criteria for aquaculture activities. [46]Any aquaculture proposal that is not permissible under the policy is prohibited. [47] Proposals that meet the criteria may be undertaken, subject to development consent being obtained.
The level of environmental assessment for a particular proposal depends upon the environmental risk associated with the proposal. The environmental risk assessment is conducted by the consent authority, taking into account guidelines prepared by the Director General of the Department of Planning. [48]
Proposals to which the policy applies must be classified as designated development, (which must be advertised for at least 30 days) or advertised development (which must be advertised for at least 14 days). [49]
In addition to the requirement to obtain development consent for aquaculture, it is illegal to undertake aquaculture without a permit obtained under the Fisheries Management Act 1994. [50]
State Environmental Planning Policy No. 71 – Coastal Protection
State Environmental Planning Policy No. 71 regulates development in New South Wales coastal areas, with the exception of coastal land in the greater Sydney area. [51] Where the provisions of the policy are inconsistent with any other environmental planning instrument, the policy prevails. [52]
The policy applies to developments within the 'coastal zone'. The coastal zone is defined by reference to coastal zone maps. The coastal zone generally extends to:
The policy prohibits certain types of development within the coastal zone. The policy provides that the consent authority must reject development applications that will diminish access to coastal foreshores, [54] result in effluent that negatively affects water quality, [55] or involve discharge of stormwater into the sea, a beach, coastal lake, creek or rock platform. [56]
The policy also requires that a master plan be adopted by the Minister for certain developments before consent can be given. These include subdivisions in sensitive coastal areas or of over 25 lots for residential zones or 5 lots for rural residential zones and buildings 2 or more stories in height. [57]
After receiving a draft master plan, the Minister must advertise the plan in a local newspaper and exhibit the master plan to the public for 28 days for comment. The Minister must consider any comments and submissions made before deciding whether the adopt the plan [59]
‘Sensitive coastal locations' include:
The policy requires that Councils take certain things into account when deciding whether to grant consent for a development application in the coastal zone. These include:
State Environmental Planning Policy (Major Projects) 2005
This policy has incorporated several provisions from SEPP 71. The Policy applies to the whole state which includes the metropolitan region. It is therefore greater in scope than SEPP 71.
The Policy aims, amongst other things, to identify development to which the development assessment and approval process under Part 3A of the Environment Planning & Assessment Act 1979 applies.
The Policy declares that Part 3A projects are those developments which are, in the Minister's opinion, of a kind described in Schedules 1,2,3 and 5. [62]
Schedule 1 sets out various industries that will be considered Part 3A projects. These include aquaculture, mining, power plants and waste facilities that are in ‘environmentally sensitive areas of state significance'. This term is defined in the Act to include ‘the coastal waters of the state'. [63]
Schedule 2 deals specifically with coastal areas. [64]The Policy declares that certain projects within the coastal zone are Part 3A projects, which means that the Minister is the consent authority for the project and that the project is exempt from the environmental assessment provisions of the Environmental Planning and Assessment Act 1979. for more information on Part 3A projects, see Topic 2- Planning and Development.
Seven types of coastal development are covered by Schedule 2. These are:
‘The result of this Policy is that developments that are likely to have the greatest impact on the coastal environment in NSW will be decided by the Minister who determines the scope of any environmental assessment.
The aim of the New South Wales Coastal Policy 1997 [66]is to promote ‘the ecologically sustainable development of the New South Wales coastline'. [67] To achieve this, the policy sets out various goals, objectives and actions as part of a coastal framework. Key actions covered by the policy include actions relating to water quality, ocean outfalls, proposed coastal developments and canal estates. [68] The policy applies to the 'coastal zone'. The coastal zone is defined by reference to coastal zone maps (see discussion of SEPP 71 above)
The policy is directly relevant to development control in two ways:
The specific Council areas to which the policy applies are listed in Environment Planning and Assessment Regulation 2000. [70]As of November 2005 the policy also applies to the greater metropolitan region of Sydney, Newcastle, the Illawarra and the Central Coast, which were previously excluded from the policy. However, Sydney City Council is still excluded.
In addition to the matters discussed above, a range of other controls may apply to coastal development proposals.
For example, additional permits are required under the Fisheries Management Act for the following activities within the coastal zone:
Additional approvals may also be required under the Water Management Act 2000 for the following activities on waterfront land (including land within forty metres of estuaries and coastal waters):
For more information on water management law, see Section 4.5– Water Management.
Coastal development may be subject to additional controls if the development is likely to affect a threatened species or protected area. For more information on threatened species and protected areas law, see Topic 5 – Biodiversity Conservation.
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© 2007 Environmental Defender's Office (Ltd) NSW |
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