The NSW coastline is valued for it intrinsic beauty, recreational uses and cultural significance, so much so that it could be said that Australian’s feel it is an Aussie right to have access to the beaches and other public access areas surrounding the coast.
This however it becoming being met with a significant problem, the effects of climate change, namely coastal inundation, is threatening the continual access of the public to the beach, as well as landowners property security.
Coastal communities have been experiencing growth above the national average in the past decades, which has placed a mounting pressure on local governments and local councils in balancing development approvals, private landowner rights, environmental and ecological preservation; all while at the same time being exposed to real climate changes and predictions in relation to coastal inundation.
Currently the legal framework is failing to recognise and design a policy process that is able to concisely and fairly deal with stakeholders whose property rights are infringed with sea level rise. Despite amendments to various coastal related legislations, sea level rise and other forms of climate change associated with the coast are still merely ‘to be taken into account’ in planning instruments.
What are the current laws delivering?
Coastal areas in NSW are managed under a combination of legislation, statutory and non-statutory strategic planning instruments. Legislative and policy frameworks do not currently provide clear guidance regarding priorities for coastal management. Local councils faced with impacts like SLR without state government support are being left to make ad hoc decisions, which are proving inefficient and short-term based. This is providing little security to concerned private landowners.
The main instrument governing strategic planning and development in NSW is the Environmental Planning and Assessment Act 1979 (NSW), which provides special additional requirements to coastal zones. In saying this, there is no direct object specifying climate change impacts, such as rising sea level, need to be included. In saying this however, local councils can make climate change considerations indirectly through Environmental Planning Instruments, Coastal Zone Management Plans, including State Environmental Planning Policies and Local Environment Plans.
In 2012, planning and adaption pressures led to amendments to the Coastal Protection Amendment Bill 2012 (NSW) (CP Act) by the Coastal Protection Amendment Act 2012 (NSW) in Oct 2012 (provisions came into play 21 January 2013) as part of stage 1 of the NSW Government Coastal Reform Agenda, except even this has done little to clarify any issues.
Whilst the amendments hoped to create clarity for landowners regarding placement of protective materials in areas subject to erosion, shortcomings have come through, namely with inconsistency and indirect responses to climate change. Firstly, Emergency Protection Works certificates were most likely too difficult to obtain in a timely manner to prevent erosion during a storm; secondly there were inconsistencies between construction of EPWs and on the other hand sea level rise polices and guidelines that indicated a preference for soft adaptation options.
Aren’t private landowners scared?
Private property rights in Australia are valued deeply due to their security, exclusivity and tradability. Landowners expect that they have a right to protect their property and this is causing disagreements in what safeguarding measures they are allowed to implement against coastal inundation. Current laws are not providing enough security.
Rolling easements seem like a plausible and effective solution?
Rolling easements are an adaptive and flexible instrument, and can be explained as a legal agreement between a landowner and the government that restricts development in erosion prone areas. They don’t limit other land uses, and still enable the property to remain in private ownership.
They would operate on a trigger-based manner. This mechanism has the potential to ensure that public access to the coast is maintained despite erosion, through a ‘ribbon’ of land along the coastline of a predetermined width maintained under public ownership, with ownership ‘rolling’ over as the sea slowly encroaches inward (LAWREP -030-EPL JL-0220). Rolling easements are an effective option as they don’t necessarily reduce the value of the property, and they promote natural shoreline processes and can act as a natural buffer zone.
A barrier to rolling easements is public perception and interest, along with the possibility that whilst easements could reduce erosion on one area of the shoreline, it may push development further down the coast, exacerbating erosion close by, and negating conservation benefits.