Questions and answers

What does the Coastal Protection and Other Legislation Amendment Act 2010 do?

This legislation:

• increases the options available to councils when dealing with coastal erosion and unauthorised coastal protection works
• provides practical options for landowners to protect their properties (particularly in emergencies) and stricter controls to prevent inappropriate works that may add to erosion or damage beaches or beach access 
• strengthens requirements for the preparation of coastal management plans
• creates an expert NSW Coastal Panel to advise on coastal management and approve development applications under certain conditions.

The Act achieves these outcomes by changing the Coastal Protection Act 1979, Local Government Act 1993 and Environmental Planning and Assessment Act 1979, and three regulations (the Conveyancing (Sale of Land) Regulation, the Environmental Planning and Assessment Regulation and the Local Government (General) Regulation). The changes to these Acts and regulations has now commenced.

The new legislation is complemented by changes to the Infrastructure SEPP (a planning policy made under the Environmental Planning and Assessment Act) to allow landowners to apply for approval to construct works to protect their property for the long term, provided they maintain the works and manage any erosion impacts over the life of the works. Further information on these changes is available on the Department of Planning's website.

The Coastal Protection Regulation 2011, which commenced on 3 March 2011, also supports this Act.

Why were these changes necessary?

1. To improve planning for coastal protection: Existing arrangements did not produce adequate or timely coastal management plans. Therefore there was a need for greater focus and more expedited finalisation of coastal management plans.
2. To provide greater clarity in the protection of our beaches in order to ensure that works do not cause erosion elsewhere, safety problems or unreasonable restrictions to public access
3. To offer better protection for local councils against liabilities and risks as they tackle increasingly difficult issues in relation to coastal erosion and forecasting climate change impacts
4. To provide landowners with the opportunity to protect their properties from coastal erosion threats: Some 40 houses have been lost due to erosion since the 1940s and at present around 200 houses may be at risk should a major storm occur. A major storm event is likely to result in further losses of houses if landowners are not permitted to protect their properties.

How does the Act help coastal landholders?

Changes to the Coastal Protection Act will help coastal landholders by providing an opportunity to temporarily reduce coastal erosion threats to protect their homes through emergency coastal protection works. The temporary works can reduce the erosion threats to houses while landowners identify more permanent solutions and consider seeking approval for permanent works.

The related changes to the Infrastructure SEPP will also provide greater clarity and a more accountable process for dealing with non-emergency protection measures (see longer term coastal protection works below).

How does the Act protect public beaches?

The changes to the Coastal Protection Act protect public beaches by setting strict controls on the types of coastal erosion protection works, including where and when works may be placed. Authorised officers from councils and some State Government agencies now have the power to order the removal of any emergency works that cause erosion, unreasonably limit beach access, or present a public safety risk. Long-term works by landholders will only be permitted if the landowners who propose the works pay to maintain them and manage any erosion impacts.

Councils, of course, will continue to be able to carry out such works.

How does the Act change what councils do?

Councils now:

• through authorised officers, are able to issue certificates to allow landowners to place emergency coastal protection works and orders to modify or remove these works if they are causing erosion, limiting beach access or presenting a risk to public safety
• have increased powers to order the removal of illegal material dumped on beaches
• will be able to levy landowners for the council's costs related to maintaining an approved seawall voluntarily built by landowners and managing any erosion caused by the seawall to the beach or adjacent lands - this is not retrospective, except with the landowner's agreement. 
• need to ensure that their coastal zone management plans appropriately address risks in relation to coastal hazards and estuarine health and consider the potential impacts of climate change on these risks
• will be able to expedite the preparation and finalisation of coastal zone management plans.

Who will pay?

Landowners who have initiated coastal protection works will need to pay to build and maintain these works. They will also have to pay for the cost of managing any impacts on beaches. Where a public benefit is involved, landowners and councils may agree to jointly fund works, providing that appropriate arrangements are in place to fund the ongoing maintenance and management of these works.

Landowners will not be required to build coastal protection works - participation in any scheme to build works is voluntary. Any charges issued by councils relating to protection works will only apply to land where the current or past landowners have voluntarily agreed to contribute to the cost of building the works and these have been constructed since the commencement of the Act. The charge can also be applied if these landowners voluntarily agree to upgrade any existing works or agree to pay the charge for the maintenance of any existing works.

Councils may also decide to undertake works themselves and may choose to recover all or part of these costs from benefiting owners through a special rate variation under the Local Government Act. This existing arrangement requires the prior approval of the Minister for Local Government.

Where do the Act changes apply?

The Coastal Protection Act applies to the entire NSW coastline. Emergency works can only be undertaken in locations where houses are known to be at risk from erosion. These areas are listed in the Code of Practice (110223CodeofPracCoastProtAct1979.pdf; 230 KB).

Who will monitor these changes?

Authorised staff from coastal councils and some State Government agencies will monitor emergency coastal protection works placed by landowners and will issue orders if the works are causing erosion, impacting on beach access or posing public safety issues.

EMERGENCY COASTAL PROTECTION WORKS

What types of emergency works are provided for?

Emergency coastal protection works that are allowed under the Coastal Protection Act include sand and large sandbags. The use of rocks, concrete, construction waste or other materials is not allowed for emergency protection works by private landowners. The Code of Practice (110223CodeofPracCoastProtAct1979.pdf; 230 KB) details where, when and how emergency works may be built.

Who pays for emergency works?

Landowners who wish to place emergency works will need to pay for them to be placed, maintained, removed and the beach restored.

When can emergency works be placed?

Emergency works can be placed in advance of periods when erosion is reasonably likely to occur. This is to ensure that it is safe to place these works on a beach.

How long can emergency works be in place for?

The maximum period allowed for emergency works is 12 months, or until any Development Application for longer term works lodged in this period is determined.

What happens if emergency works start causing erosion?

If emergency works are causing or increasing erosion on neighbouring land, an authorised officer may issue an order to the landowner requiring them to remove the works. If the landowner does not comply with this order, an authorised officer can remove the works and recover all costs at the expense of the landowner.

What happens if emergency works are in place for a longer period than allowed?

If a landowner does not remove emergency works when the allowed period has expired, an authorised officer from the council or other authorised agency may order this to occur. Action may be taken to recover the costs that are incurred in removing emergency works and restoring the land from the landowner if they do not comply with the order and council or the agency removes the works. The landowner may also be found guilty of an offence and subject to a penalty.

If a private land owner has undertaken emergency works and has lodged a DA for permanent works before the approval period has expired, the emergency works are entitled to remain in place and cannot be ordered to be removed until the DA has been determined.

Where will emergency works be allowed?

Emergency works are only allowed on the open coast in specific locations detailed in the Code of Practice (110223CodeofPracCoastProtAct1979.pdf; 230 KB). These specific locations will be areas where houses and other lawful structures are known to be at risk from coastal erosion should a severe storm occur and there is no road between the houses and the beach.

LONGER TERM COASTAL PROTECTION WORKS

How do landowners apply to build longer term protection works such as seawalls?

Private landowners who want to build a seawall on the open coast or an estuary entrance will need to apply to the relevant local council or the NSW Coastal Panel for approval under the Environmental Planning and Assessment Act. Proposals must meet the requirements under the State Environmental Planning Policy (Infrastructure). Further information is available on the Department of Planning's website.

Applicants will need to make arrangements to fund the building of the seawall and satisfy the consent authority that satisfactory arrangements are in place for the ongoing maintenance of the wall and management of any off-site impacts.

What happens if one landowner out of a group of landowners does not want to build a seawall?

No landholder will be compelled to contribute to any proposed work that may be pursued by other landholders. Landowners who wish to build a seawall will need to agree on their individual contributions before works commence. This includes each landowner's required share of future maintenance costs and erosion control works. Landowners may make private contractual arrangements to cross-subsidise landowners who are unable to fund any works.

Alternatively, landowners may also seek an agreement with the local council to fully or partially undertake and/or fund such works.

How will the State Government ensure that seawalls built by landowners will not erode beaches?

Councils will be able to levy a charge on land where current or past landowners have legally built a seawall or other long-term works since the commencement of the Act. The charge will fully cover council's costs of maintaining the wall and restoring any areas of beach that may be eroded by the seawall. This will ensure that the seawall and its effects on the beach are properly managed into the future, with costs paid by the landowners. The charge can only cover the costs associated with maintaining the seawall and managing any erosion impacts caused by the landowner-funded works.

OTHER CHANGES

What is the Coastal Panel?

The NSW Coastal Panel is a group of experts nominated by local councils and State Government departments that will provide advice to the Minister and councils on coastal issues and consider and determine applications for long-term coastal protection works where a local council is not (or chooses not to be) the decision-maker.

What are 'authorised officers'?

An authorised officer is a designated employee of a coastal council or some State Government agencies who has suitable knowledge, skills and legal powers to investigate potential breaches of the Coastal Protection Act and issue orders under the Act.

An authorised officer is required to carry an identification card and has powers to enter certain lands, issue orders and ensure compliance with the Act. It will be an offence under the Act to obstruct or intimidate an authorised officer carrying out their functions under the Act.

How does the Act ensure that plans are in place for managing coastal erosion risks?

The Minister issued directions to councils in coastal erosion 'hot spot' areas to prepare coastal erosion emergency plans by mid-2011 and coastal zone management plans within 1-2 years, as negotiated.

The Act and new guidelines (101019GdlnsCZMPs.pdf; 486 KB) set out specific requirements for the development of coastal zone management plans which ensure that plans are prepared in a consistent manner, and appropriately address coastal erosion risks, address risks to the health of our estuaries, and consider projected climate change impacts.

The new amendments also allow councils with land adjoining the tidal waters of Sydney Harbour, Botany Bay and the Hawkesbury River to prepare coastal zone management plans. To assist councils identify the extent of tidal waters in these catchments, see the Survey of tidal limits and mangrove limits in NSW estuaries 1996 to 2005(20060118DNRSurveyTidalMangroveLimits.pdf; 3.5 MB). Maps of the coastal zone in the greater metropolitan region are available on the Department of Planning's website.

How will the State Government support councils to implement these measures?

The State Government will be providing funding to councils to assist them to prepare emergency plans. The Government will also be providing new guidelines to assist in implementing these changes.

What are the new penalties?

The maximum penalty for an offence under the Coastal Protection Act has been increased to be closer to the existing penalties for waste dumping under the Protection of the Environment Operations Act 1997. The maximum penalty is nearly $250,000 for an individual and $500,000 for a company. The decision on what penalty will be payable for a particular offence is made by the courts. The court's decisions will take into account the severity of the offence (maximum penalties are normally imposed only for very serious offences).

What are the new orders?

The Coastal Protection Act will include order powers to stop the illegal dumping of material on a beach which is causing erosion, limiting public access, or presenting a risk to public safety. The Act will also provide the ability to remove material if the order is not followed.

What is the 'Code of Practice'?

The Code of Practice (110223CodeofPracCoastProtAct1979.pdf; 230 KB) provides technical details of emergency coastal protection works, including allowable materials, construction and safety considerations. The Code also includes details of when, where and how emergency works can be placed. The Code supersedes the Minister's Requirements under the Coastal Protection Act, released in December 2010.

What guidelines, Ministerial requirements and other support documents will be provided to guide councils and affected members of the community?

A suite of related statutory and non-statutory guidelines have been prepared to assist with the implementation of these reforms.