October 2012 – Coastal Protection Amendment Act 2012

On 17 October 2012 the Coastal Protection Amendment Act 2012 (“CP Amendment Act”) was passed by Parliament.

The Amendment Act will come into force to amend the Coastal Protection Act 1977 (“CP Act”) “late this year”, after a new code of practice for Temporary Coastal Protection Works (“TCPW”) is finalised. The amendments make it easier for landowners to place large sandbags on beaches as TCPW (previously referred to as (“emergency coastal protection works”), to reduce erosion impacts during minor storms.

Once amended, the requirements of the CP Act in relation to TCPW, are in summary as follows:

1. a private landowner (or a person acting on behalf of, and with the written authority of, the owner of land) (“Landowner”) can carry out TCPW on private land, without any regulatory approval under the CP Act or any other law (ss55O and 55P) (previously a certificate from a Coastal Authority was required). A Landowner must notify the council that TCPW have been carried out;
2. a Landowner can apply to a council for a certificate that authorises the person to use and occupy public land for placing and maintaining TCPW. It is not necessary for the Landowner to obtain a lease, licence, permit, easement or right of way in respect of the public land (s55T(1));
3. a Landowner may use and occupy adjacent private land for the placing, maintaining and removal of TCPW but the Landowner must obtain a lease, easement, right of way or other interest in land from the owner of the adjacent land (s55Z);
4. a public authority must not unreasonably refuse a person access to its land to enable the person to lawfully place TCPW on the land or on other public or private land (s55VB).

Under the amended CP Act, TCPW:

1. can be carried out on a beach, or sand dune adjacent to a beach, to mitigate the effects of wave erosion on land. We note that the definition of “beach” is broadly defined.
2. can be placed to reduce the impact or likely impact from wave erosion on that land (s55P(2)) (ie it is no longer necessary to wait until erosion is actually occurring or imminent);
3. must be made of specified material (including sandbags) and must be placed in accordance with any emergency action subplan that applies to the land and the requirements of the Coastal Protection Regulations 2000 (s55P(1)). Part 3 of the Regulations includes requirements for works to be carried out in accordance with the Code of Practice.
4. until such time as the Code of Practice is amended as foreshadowed by the State Government, it includes a schedule of only 14 specified locations where TCPW are authorised to be placed. Once amended, TCPW could be carried out anywhere in the Coastal Zone;
5. can be instated for an indefinite period on any private land and for a maximum period of 2 years on public land. The 2-year period can be extended if a development application for consent to construct the works is pending (55VA). There is no restriction on works being reinstated. (Previously, works could only be place for a maximum period of 12 months and could only be placed once).;

If Coastal Protection Works are larger and more permanent (and thus do not qualify as TCPW), a development consent under the EP&A Act will be required for the works and the CP Act provides additional considerations and requirements in relation to such works (s55M).

The maximum penalties for offences under the Act relating to the inappropriate use of sandbags on beaches have been halved to 2250 penalty units ($247,500) for a corporation and 1,125 penalty units ($123,750) for an individual.

In addition, Part 4 (categorization of coastal risks to land) of the CP Act has been removed and there is no longer a requirement for a council to include a coastal hazard rating on a planning certificate issued under section 149(2) of the EP&A Act.

Note: This information is not to be relied upon as legal advice.