State Coastal Policy Bill: A storm in a teacup or necessary step?

If you manage infrastructure or are proposing development along the coast in Tasmania, the proposed Validation (State Coastal Policy) Bill 2024 should be of interest.

On 16 July 2024, the Minister for Parks and Environment Nick Duigan, released the draft Validation (State Coastal Policy) Bill 2024 (Bill) for consultation. There has been a lot of public debate regarding the impact of this Bill on coastal development in Tasmania. Some argue it will open the floodgates to unbridled development along sensitive coastlines and others have noted it only removes the uncertainty that has plagued the State Coastal Policy (Policy), almost from its inception.

The Policy has not played a crucial role in development assessment in Tasmania for many years. This is because the application of the Policy, in the context of development assessment, is unclear. Given the uncertainty, it is only considered in passing, if at all, in assessing individual projects in Tasmania.

This uncertainty has persisted despite numerous legal challenges and previous legislative amendments aimed at ‘validating’ parts of the Policy. The recent Robbins Island windfarm appeal to the Supreme Court of Tasmania is the latest in a series of legal challenges involving the Policy, including an unsuccessful special leave application to the High Court in 2007.

Unfortunately, the broader legal uncertainty surrounding the Policy will not be addressed by the Bill.

What is the purpose of the Bill?

The Bill was foreshadowed in a media release by Minister Duigan in May of this year as a response to legal advice received by the Government regarding the Policy’s interpretation and application (not publicly available). Minister Duigan confirmed that this advice was responsible for the Environment Protection Authority (EPA) joining a Supreme Court appeal against the Robbins Island windfarm in March 2024. The Robbins Island windfarm was approved by the Council, and that decision was upheld by the Tasmanian Civil and Administrative Tribunal.

It appears the legal advice may also have impugned the validity of existing infrastructure within coastal areas.

The Minister stated:

“Our Government wants to ensure Tasmanian communities have the necessary infrastructure to safely enjoy marine recreation, while also providing developers and regulators with confidence in how our State Policies are to be interpreted and applied”

State Coastal Policy

The Bill is focussed on the application of Outcome 1.4.1 and Outcome 1.4.2 in the Policy, but there are no amendments proposed to the Policy itself. The Department of Premier and Cabinet have noted that changes to the Policy are proposed and a separate position paper will be released to address this later this year.

Currently, the Policy provides:

“1.4.1. Areas subject to significant risk from natural coastal processes and hazards such as flooding, storms, erosion, landslip, littoral drift, dune mobility and sealevel rise will be identified and managed to minimise the need for engineering or remediation works to protect land, property and human life.

1.4.2. Development on actively mobile landforms such as frontal dunes will not be permitted except for works consistent with Outcome 1.4.1.”

The Bill, if passed, will act to retrospectively validate permits for development on ‘actively mobile landforms’ issued under the Land Use Planning and Approvals Act 1993 after 25 February 2009 but before the commencement of the Bill.

The retrospective validation is twofold:

• development will be taken to be, and to have always been, consistent with Outcome 1.4.1; and
• Outcome 1.4.2 is deemed not to apply and to never have applied to the development.

As the permit for the Robbins Island windfarm proposal has already been issued, this means that the Bill will likely remove any legal hurdle imposed by the Policy, if the legislation passes in its current form.

History of the State Coastal Policy

This is not the first time the Tasmanian Government has passed validating legislation to overcome uncertainty arising from a legal challenge to the Policy. The State Coastal Policy Validation Act 2003 was passed as a result a Supreme Court decision in Richard G Bejah Insurance v Manning (2002) 123 LGERA and sought to provide certainty with respect to the application of the Policy.

Unfortunately, it did not overcome the fundamental uncertainty surrounding the Policy. Accordingly, the Policy has played a minimal role in development assessment since.

How is development regulated in coastal areas?

There are numerous legal restrictions that regulate development within the coastal areas in Tasmania. These may apply, for example, where the area is a reserve, is habitat for threatened species or aboriginal heritage is present.

The majority of development in coastal areas is subject to the Tasmanian Planning Scheme (TPS), which applies in most municipalities in Tasmania. The TPS incorporates two codes that may regulate development including:

• Coastal erosion hazard code;
• Coastal inundation hazard code.

There are many other provisions in the planning schemes that may also apply to any given development. It had been widely accepted that planning schemes in Tasmania give effect to the requirements of the Policy. Therefore, assessment of a proposal against the provisions of the planning scheme, satisfied the Policy.

Even if the Bill is passed, these other regulatory tools will continue to regulate the majority of development in coastal areas.

What you need to know

What should infrastructure providers, proponents and consultants know about the reforms:

• Existing infrastructure – Do you have infrastructure that could be impugned by the uncertainty as to the application of the Policy? If so, you should seek legal advice.
• New projects – Are you proposing development in a coastal area? If so, you should seek legal advice on how the Policy may be applied to your project.
• Submissions – Submissions on the draft Bill can be forwarded to [email protected] by 5pm on Thursday, 1 August 2024.