Local government and coastal damage: confusion, potential and dreams

DOIhttps://doi.org/10.1108/JPPEL-10-2018-0032
Publication Date01 Jul 2019
Pages1-18
AuthorAndrew H. Kelly,Jasper Brown,Aaron Strickland
SubjectProperty management & built environment,Building & construction,Building & construction law,Real estate & property,Property law
Local government and coastal
damage: confusion, potential
and dreams
Andrew H. Kelly,Jasper Brown and Aaron Strickland
Department of Law, University of Wollongong, Wollongong, Australia
Abstract
Purpose This paper aims to not only disentangle the recently altered law and policy on coastal
management in New South Wales (NSW), Australia, but also raise opportunities for fresh ideas to develop
when dealing with both existing and future coastal damage. The focus is on the role of local government
which is not onlycloser to concerned citizens but also faces costaldamage on its own doorstep.
Design/methodology/approach The paper explores the topic from the beginnings of relevant
statutory law to the current situation, supported by a case study. It is transdisciplinary in nature,
encompassingland use and coastal legislation.
Findings The narrative encourages further attention to the key issues at the local level. This is
underpinned by the need for planners to move beyond zoning and other restrictive mechanisms to more
strategic approaches. All levels of government must recognise that regulatory planning on its own is
insufcient.This leads to the need for champions to consider opportunitiesbeyond the ordinary.
Originality/value While this paper will add to a growing literatureon coastal damage and action at the
local level, its emphasis on the benetsand limitations of the changing statutory system will assist not only
policy makersbut professional ofcers at the local forefront.
Keyword Strategic planning
Paper type Research paper
Introduction
This narrative examines the legislative and policy context of coastal management in New
South Wales (NSW), Australia, where the statutory system is multifaceted and confusing
(Bell, 2014;ODonnell and Gates, 2013). The system is a forever changing agglomeration of
intricate factors. The paper aims not only to disentangle this but also raise potential
improvements, especiallymoving on from land-use planning to morestrategic approaches.
The State of NSW, including its harbourside capital Sydney, embraces well over
2,000 km of coastline incorporating saline rivers, inlets and estuaries. In contrast to
geographically larger Australian States, especially Western Australia, this gure might at
rst appear limited. Yet NSW has the highestpopulation of Australias six States, rendering
it particularly attractive to sea-changers(Green, 2010;Burnsley and Murphy, 2004). This
sector contains retirees of the baby boomer generation(ODonnell and Gates, 2013, p. 220)
and younger citizens who nd Sydney property prices out of reach (Stokes, 2008). Sea-
changers abandon urban living to attain comfortable lifestyles along the coastline. This
leads to growing community disquiet over existing and foreseeable coastal damage at the
This paper represents a substantially extended version of Kelly and Strickland, Coastal Damage in
NSW, Australia: Concern or Calm for Councils and Their Citizens?, RICS COBRA AUBEA
Conference 2015, Sydney, 8-10 July 2015, rics.org/cobra2015.
Local
government
and coastal
damage
1
Received30 October 2018
Revised13 April 2019
Accepted13 May 2019
Journalof Property, Planning and
EnvironmentalLaw
Vol.12 No. 1, 2020
pp. 1-18
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-10-2018-0032
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
doorstep. Importantly, the majority of Australians cling to the coastline with about 70 per
cent of Australian addressesor population [...] locatedwithin 7 km of the shore(Chen and
McAneney, 2006, p. 1), which is expanding [Ofce of Environment and Heritage (NSW)
(OEH), 2018a]. While various issuesapply at a broader scale across coastal landscapes, it is
the legal systems that vary between jurisdictions. This helps to explain why this study is
restricted to NSW.
The OEH (2011) has pinpointed 15 NSW coastal damage hot spots, indentied as
areas where ve or more houses and ora public road are located in a current (or immediate)
[identied] coastal hazard. This list includes Batemans Bay, a sizeable township of over
11,000 people, which embraces a series of beaches at the mouth of the picturesque Clyde
River. It serves as the largest community in Eurobodalla Shire Council (Eurobodalla SC),
situated about 300km south of Sydney and 150 km from Australias national inland capital,
Canberra. This makes it particularly attractive for sea changers. Furthermore, the
Eurobodalla SC reveals a large sector of unoccupied dwelling houses (Eurobodalla SC,
2017b;Hugo and Harris, 2013), reecting a high number of holiday homes. One suburb of
Batemans Bay, Surfside, has been veried as facing pending coastal inundation (Lenehan
et al.,2012), exemplifying its hot spotdesignation. Eurobodalla Shire will be utilised as a
case study following an attempt to unravel the statutory environmental planning
framework. A fresh Coastal Management Act 2016 was enacted by the NSW Parliament
and assented to on 7th June 2016, coming into play in early April 2018. This sits alongside
the far older EnvironmentalPlanning and Assessment Act 1979.
The central focus here is local government, Australias third sphere of governance.
Consequent to recent compulsory amalgamations imposed by the NSW State Government,
the number of councils has dropped from152 to 129. While various councils have undergone
extensive modications, Eurobodalla SC managed to avoid such change. Importantly,
coastal land-holders who directly face property erosion, plus others concerned about
changing seascapes, will generally approachtheir local council rather than the more remote
Federal and State agencies. Whilethis applies to whether or not amalgamation has occurred,
larger councils may be able to provide stronger expertise and resources in dealing with
expanding issues (Tayloret al.,2013;Dollery et al.,2007).
As noted by Gurran et al. (2013, p. 101), a dominating concern about decreasing
greenhouse gas discharges is beginning to shift, with local government taking a more
tactical approach in battling against climate change, including sea level rise. At the same
time, local government is nanciallydeprived being the poor cousinof the three spheres of
Australian governance. One substantial factor is cost shifting(Grant and Drew, 2017),
wherein the state level can forward functions which it dealt with previously directly onto
municipal government. Indeed, it is councils that are broadly responsible for [...] coastal
protection and preparationof plans for specic coastal areas(Clarke et al., 2013,p.91).
Following a brief description of coastal damage as a widely accepted phenomenon, this
article moves on to exploring in detail the imperative statutory systems. The underpinning
factor is the embedded anti-strategicnature of the land-use planning system in NSW. This is
epitomised further by the case study. Yet the analytical theme here is not intended to be
cheerless. Instead,a more positive methodology is sought.
At the outset, it must be noted that Constitutional limitations obstruct adoption of
environmental law-making at the Federal level(Crawford, 1991). It is the State Parliaments
where the power lies. At the same time, there is no recognition at all of local government in
the Australian Constitution. Consequently, the general power of local government rests on
State legislation.
JPPEL
12,1
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