The State Environmental Planning Policy (Coastal Management) 2018 (the Coastal Management SEPP) commenced on 3 April 2018. A draft of the proposed SEPP (the draft SEPP) had previously been released for public consultation between November 2016 and January 2017.
The Coastal Management SEPP promotes an integrated and coordinated approach to land use planning. Through detailed mapping, it defines the four coastal management areas of the Coastal Management Act 2016 and specifies assessment criteria to be applied by consent authorities when assessing proposals for development within the mapped areas.
The Coastal Management SEPP has repealed and replaced State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14), State Environmental Planning Policy No 26 - Littoral Rainforests (SEPP 26) and State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71).
The Coastal Management SEPP carries across a number of the key principles that applied under the now repealed SEPPs. A summary of the key provisions of the draft SEPP are set out in our previous article: Coastal accretion? – A new state environmental planning policy for the coastal zone.
A number of significant changes have been made to the draft SEPP since its initial release for public consultation. Some of those changes and the potential implications of those changes are explained below.
Coastal Management SEPP excluded from certain parts of the State
The operation of the Coastal Management SEPP has been excluded from the leased areas of Port Botany, Port Kembla and the Port of Newcastle. Presumably this was in response to concerns from the Port Authority of NSW about the effect of the Coastal Management SEPP on the ports.
The requirements relating to development on or near coastal wetland or littoral rainforest
The Coastal Management SEPP continues to impose a requirement for development consent on land identified as "coastal wetlands" or "littoral rainforest" on the Coastal Wetlands and Littoral Rainforest Area Map (Map). The Coastal Management SEPP also specifies that development that requires consent on this identified land, other than environmental protection works, is designated development.
Following on from the public consultation, the requirements relating to development on certain land within coastal wetlands and littoral rainforests have also been amended, including:
- to clarify that the development must be carried out on land identified as coastal wetlands or littoral rainforest and so does not apply to the carrying out of development on land which is partly identified as coastal wetland or littoral rainforest; and
- that environmental protection works on land identified as coastal wetlands or littoral rainforest may be carried out without the need for development consent if the development is identified in a plan of management under either the Local Government Act 1993 or the Crown Lands Act 1989. In the draft SEPP those works could only be identified in the relevant coastal management program.
Development on land reserved under the National Parks and Wildlife Act 1974 is expressly exempt from the requirement to obtain development consent, if the proposed development is consistent with a plan of management under that Act for the land concerned.
The requirements relating to development on land identified in 'proximity areas' to these management areas remains largely the same. As with the requirements relating to designated development, the clause no longer refers to on land "wholly or partly identified" as a proximity area.i
In addition, within a proximity area, the consent authority must now take into account the quality and quantity of surface and ground water flows both to, and from, the adjacent coastal wetland or littoral rainforest.iiPreviously the clause only required consideration of the flows to the adjacent wetland or rainforest.
In the draft SEPP, development on land within Zone R1, R2, R3, R4, R5 or RU5 (or equivalent zones) was expressly excluded from meeting the development consent requirements. These exclusions have now been removed from the Coastal Management SEPP on the basis that the considerations that relate to proximity areas should apply to development within those zones.
Coastal vulnerability area
The draft SEPP identified certain coastal hazards on a Coastal Vulnerability Area Map. Additional coastal hazards currently identified in local environmental plans and development control plans were to be included at a later date through the inclusion of a Local Government Coastal Hazards Map.
In the Coastal Management SEPP, the two maps have been combined into a single Coastal Vulnerability Area Map.
As at the commencement of the Coastal Management SEPP, no map has been adopted. Until such time as the map is adopted by amending the Coastal Management SEPP, the provisions relating to coastal vulnerability areas in Division 2 of the Coastal Management SEPP do not apply. Despite this, changes have been made to the substantive requirements for proposed development on land identified as being within the coastal vulnerability area. As a result, a consent authority must now be satisfied that if a proposed development within the coastal vulnerability area comprises the erection of a building or works, those building or works are engineered to withstand current and projected coastal hazards for the design life of the building or works. The proposed development must also:
- not be likely to alter coastal processes to the detriment of the natural environment or the land; and
- have measures in place to ensure that there are appropriate responses to, and management of, anticipated coastal processes and current and future coastal hazards.iii
Coastal environmental area
In relation to development on land within the coastal environment area (as shown on the Map), the following changes have been made:
- The requirements now only apply to "land that is within" the coastal environment area and no longer apply to "wholly or partly" within the area identified.
- The consent authority must now also consider the impact of development on existing public open space and safe access to along the foreshore, beach, headland or rock platform for members of the public, including those with a disability.iv
- Aboriginal cultural practices, in addition to, Aboriginal cultural heritage and places have now become a relevant consideration.v
- The consideration of the impact of development on geological and geomorphological coastal processes and features, or to be significantly impacted by those processes, have been omitted.
The provisions now adopt a form of mitigation hierarchy: to avoid, minimise, mitigate impact. This means that the consent authority must be satisfied that development within the coastal environment area:
- is designed, sited and will be managed to avoid an adverse impact on the matters identified in clause 13, or
- if that impact cannot be reasonably avoided – the development is designed, sited and will be managed to minimise that impact, or
- if that impact cannot be minimised – the development will be managed to mitigate that impact.
The clause does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the Harbour REP). Presumably this was done to seek to avoid duplication between this provision in the Coastal Management SEPP and existing provisions in the Harbour REP.
Coastal use area
In relation to development on land within the coastal use area (as shown on the Map), the following changes were made:
- Development consent is not to be granted to development on land that is within the coastal use area unless the consent authority has considered whether the proposed development would be likely to cause an adverse impact. Previously the tests varied depending on the nature of the matter to be considered.
- Consideration must now be given to the impact on existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability.vi
- Aboriginal cultural practices, in addition to, Aboriginal cultural heritage and places have now become a relevant consideration.vii
- The inclusion of additional considerations around the impact on the cultural and built environment heritage.viii
- The consent authority must now consider the surrounding coastal and built environment when considering the bulk, scale, and size of the proposed development.
- The clause also no longer applies to land within the Foreshores and Waterways Area in the Harbour REP.ix
Clause 15 requires that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards. In the draft SEPP, that clause ceased to apply in 2021, however the provision is no longer time limited.
Additional savings and transitional arrangements
More detailed savings and transitional arrangements have been included in the Coastal Management SEPP. Planning stakeholders should be aware of the time frames and the implications for pending applications.
For development applications that do not require an environmental impact statement (EIS), the former planning provisions of SEPP 14, SEPP 26 and SEPP 71 continue to apply to applications lodged, but not finally determined before the commencement of the Coastal Management SEPP.
For development applications that require an EIS, being designated development and State significant development, the former planning provisions of SEPP 14, SEPP 26 and SEPP 71 continue to apply to those applications, provided that the Secretary's environmental assessment requirements were issued before 3 April 2018 and the application is made before 3 April 2019.
The requirements of the Coastal Management SEPP that impose a requirement for development consent for development on land identified as coastal wetland or littoral rainforest do not apply to the carrying out of an activity for which an approval was given under Part 5 of the Environmental Planning & Assessment Act 1979 before the Coastal Management SEPP commenced. Where an EIS was required for an activity under Part 5, that activity can still be approved and carried out without development consent provided that the activity is determined before 3 April 2019.
iState Environmental Planning Policy (Coastal Management) 2018 (NSW) cl 11.
ii Ibid, cl 11(1)(b).
iii Ibid, cl 12.
iv Ibid cl 13(1)(e).
vIbid cl 13(1)(f).
viIbid cl 14(1)(a)(i).
vii Ibid cl 14(1)(a)(iv).
viii Ibid cl 14(1)(a)(v).
ix Ibid cl 14(2).
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.