By Aaron Gadiel, Partner
New planning laws covering some parts of Sydney and coastal NSW came into effect on 3 April 2018. These laws introduce new hurdles for urban development proposals for some coastal lands. The laws will affect proposed rezonings and development applications.
Two key legal documents have now come into force. These are:
- the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP); and
- the Coastal Management Act 2016 (the Coastal Management Act).
The Coastal Management SEPP
New mapping overlay
The Coastal Management SEPP will replace the existing State Environmental Planning Policy No 71—Coastal Protection (SEPP 71). However, the new Coastal Management SEPP is more broadly framed than SEPP 71.
The Coastal Management SEPP divides every part of the ‘coastal zone’ into one of three management areas. These are:
- the coastal wetlands and littoral rainforests area;
- the coastal environment area; and
- the coastal use area.
The government had foreshadowed that it would also map land as a ‘coastal vulnerability area’. The Coastal Management SEPP does not do this at this time. Nonetheless, the document has been prepared in a way that allows such areas to be identified later (and the government has published a technical note saying that this will happen).
The mapped areas are effectively a form of planning overlay (quasi-zoning) that will apply to land in the vicinity of the coast.
The ‘coastal environment area’ generally includes land adjoining coastal waters, estuaries, coastal lakes and coastal lagoons.
The ‘coastal use area’ generally includes some land adjacent to coastal waters, estuaries, coastal lakes and lagoons.
Of key interest to landowners and developers will be whether their coastal land has been included in one of the mapped areas and — if so — whether it has been included in ‘the coastal use area’.
The management objectives for the ‘coastal use area’ (set out in the Coastal Management Act) envisage that there will be urban development (with bulk and scale) in such land.
In contrast, for example, the management objectives for the ‘coastal environment area’ do not include any such explicit reference.
The official statutory map of these areas is the online interactive map available at this link here.
Some land is mapped as both a ‘coastal environment area’ and a ‘coastal use area’. Where this has happened, any inconsistency between management objectives is resolved in favour to the ‘coastal environment area’ objectives.
New matters to be considered
A new list of matters needs to be considered before a development consent is granted in the either the ‘coastal environment area’ or ‘coastal use area’. Generally speaking, the matters to be considered are reasons that a consent authority might say ‘no’ to proposed development (rather than assisting any particular type of development to be approved).
However, the matters to be considered are not an absolute barrier on the grant of a development consent. For example, development consent may still be granted if a consent authority is satisfied that:
- a relevant adverse impact cannot be minimised; and
- the development will be managed to mitigate that impact.
The lists of matters to be considered are not dissimilar to the matters that were listed in SEPP 71.
These two lists (of matters to be considered) do not apply within the ‘Foreshore and Waterways Area’ under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. (the SREP). This is generally the land that is immediately adjacent to the Sydney foreshore. The exclusion is designed to avoid a double-up (as the SREP is still in force and it already requires similar issues to be addressed).
The new matters for consideration do not affect pending development applications. They apply to new development applications lodged from 3 April 2018 onwards. (There are special exclusions for some new development applications that must be accompanied by an environmental impact statement, ie ‘designated development’ or ‘state significant development’. This will not affect the great majority of development applications for urban development.)
The Coastal Management Act
Until 1 April 2018 the law envisaged six layers of statutory land use planning documents in Sydney. These were:
- state environmental planning policies;
- regional strategic plans (since 2016);
- district plans (since 2016);
- local strategic planning statements (since March 2018);
- local environmental plans; and
- development controls plans.
Outside of Sydney there were five layers of statutory land use planning documents (the same list as above, but without the district plans).
Now the state’s planning laws include an additional layer. This new type of document is a ‘coastal management program’.
The purpose of a coastal management program is to ‘set the long-term strategy for the co-ordinated management of land within the coastal zone’. The focus of a program is to achieve the objectives of the Coastal Management Act. These objectives are wide-ranging and include:
- to protect and enhance natural coastal processes and coastal environmental values including natural character, scenic value, biological diversity and ecosystem integrity and resilience;
- to recognise the coastal zone as a vital economic zone and to support sustainable coastal economies;
- to facilitate ecologically sustainable development in the coastal zone and promote sustainable land use planning decision-making;
- to promote integrated and co-ordinated coastal planning, management and reporting; and
- to facilitate the identification of land in the coastal zone for acquisition by public or local authorities in order to promote the protection, enhancement, maintenance and restoration of the environment of the coastal zone.
Curiously, this appears to cover roughly same ground as the regional strategic plans and districts plans that have been envisaged (since 2016) under the Environmental Planning and Assessment Act 1979 (the EP&A Act). It is unclear why these plans could not have dealt with the matters that a coastal management program will now cover.
Additionally, on 1 March 2018 the EP&A Act was amended to require the preparation (by local councils) of local strategic planning statements. It is unclear why these documents could not have, alternatively, dealt with the matters that now may be covered in coastal management programs.
Coastal management programs will normally be prepared by local councils. A local council is only required to prepare a coastal management program if it is directed to do so by the Minister for the Environment. However, a local council may choose to prepare such a program even if has not been directed to do so.
A coastal management program will not come into effect until it has been certified by the Minister for the Environment.
The contents of a coastal management program will be governed by the Coastal Management Manual. It was also released on 3 April 2018. It is available online here.
When preparing a coastal management program, a local council must give effect to the management objectives to the relevant type of coast management area set out in the Coastal Management Act. There is a clear potential for overlap with other levels of land use planning. One of the management objectives for the ‘coastal use area’ is ‘ensuring that … the type, bulk, scale and size of development is appropriate for the location and natural scenic quality of the coast’. This is reinforced by the Coastal Management Manual which explicitly says that coastal management programs may identify proposed changes to planning controls in ‘coastal use areas’.
Once a coastal management program is in place, a local council is obliged to give effect to it when:
- preparing planning proposals (ie adopting proposals for rezoning or other changes to panning controls and submitting them for gateway determination); or
- preparing development control plans.
However, if it is not possible to simultaneously give effect to:
- a (statutory) regional strategic plan or district plan; and
- a coastal management program,
the local council will be obliged to give effect to the (statutory) regional strategic plan or district plan (as applicable) ahead of the coastal management program.
The bottom line
It seems that the statutory land use planning environment has become increasingly complex in the last two years. More layers have been introduced even as other recently legislated layers have not yet been carried into full effect.
Some proposals for rezoning and changes to planning controls may soon have to jump hurdles laid down by coastal management programs — as well as other statutory strategic land use plans.
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