At a council meeting with the community at Hawks Nest last November, NACRA put a question to Lisa Schiff, GLC Director of Planning, about the coastal erosion along our foreshore in North Arm Cove. Some waterfront property sea walls and gardens are disappearing because of wave action and poor storm water drainage in the street (resulting in excessive subsurface and surface water run-off).
Lisa Schiff was asked, " Property owners with waterfront blocks – how do they know what they can and can’t do to protect their blocks from erosion? What legislation must they be aware of and who are the relevant authorities?".
Most owners will be aware that, in 2006, the Department of Lands conducted an extensive survey of the foreshore in which it identified and photographed every inch of the village foreshore including every structure on the waterfront. The D of L then wrote to all landowners warning that legal proceedings could be instigated against them if they changed any structure or made any modification to the foreshore below the mean high water line.
For this purpose, the D of L has assumed a present position for the mean high water (MHW) line. This may be very different to the MHW line depicted on many title documents and subdivision plans pertaining at the time of purchase by current owners.
Further, the Department of Lands, in their very authoritarian letter to landowners, offered no suggestion to landowners as to what reasonable action could be taken to prevent the problem or rectify the damage already done.
NACRA backed up the original question to Lisa Schiff with the following comments:
"Regarding the issue of coastal erosion, it is causing some concern here. Slipways and walls are breaking up. Debris (tyres, rocks and building material) litter the waterfront. Erosion into a council owned access way is causing significant damage to adjacent private properties. We are threatened by prosecution if we take action. A (resident) was fined after being reported by an aggrieved neighbour for trying to repair damage to his sea wall. It seems we are just expected to watch our gardens disappear."
This month we received this response from the GLC's Greg Pevitt:
"Tony, I confirm my discussions with you 31-01-2012, subsequent to that conversation you sent me an email with attached letter from Department of Lands. Tony I sincerely regret the delay in replying there was a mix up on who would reply to you correspondence, but at the end of the day the responsibility lies with me. Reading the letter from lands it appears Lands summarised the letter pretty well, ie, any proposed work on Crown land is to be undertaken with the consent of the Department of Lands, who I anticipate would refer any applications to other relevant Authorities for consideration / comment.
Several staff at my request have carried out a fair bit or research with regard to what type of works (like foreshore reclamation / stabilization) is permissible with consent and without consent on privately owned lands in the vicinity of the foreshore. Staff visited the State Environmental Planning Policy 2008 with the view of looking for exemptions.
Under 1.19 Land on which exempt development and complying development may not be carried out.
- General Land Exemptions. To be exempt development or complying development, the development must not be carried out on land that is an environmentally sensitive area.
Dictionary Meaning ( under the act ) of environmentally sensitive area means the following,
(d) land reserved as an aquatic reserve under the Fisheries Management act 1994 or as a Marine Park under the Marine Parks act 1997
(f) Land within 100m of land to which paragraph (d) applies
Given the above, I form an opinion all development 100m from the MHW mark on private land needs a development consent.
Notwithstanding the above let me address on the issue of “General Maintenance” (minor repairs to existing structures) Vs Substantial Work ( more than repairs) requiring a formal development consent.
This issue, while not black and white, can be or is the cause of many debates often resolved in costly legal battles in courts using solicitors, Barristers often resulting in monitory penalties, notices or demolition orders or similar.
- Do I need a consent to replace a couple of bricks that have dislodged from an existing revetment wall, I suggest common sense needs to be applied, in this case “No” a consent is not required.
- Do I need a consent to renew the old broken down wall with a new wall, I would suggest a consent would in this case need to be granted by the consent authority, the conditioned consent would include ways to prevent pollution resulting in excavation and rebuilding amongst other conditions.
I would respectful suggest, if any proposed works are more than “minor” as determined by a reasonable person and this can be determined by a simply unexpansive phone call to the consent authority for clarification, then a Development Consent is required.
Tony I hope I have answered all you questions, if not please do not hesitate to contact me again. Regards Greg"
NACRA inititally responded to this letter (email) with the following comments:
" Thanks Greg. This a real minefield. How would you respond to the following situations?
- If a property owner wants to build a house (or a jetty or a slipway), there are written standards which determine what is an acceptable form of construction and how it should be done. Are there Australian standards or acceptable forms of construction that apply to sea walls? The owner would need to know about these in order to put together and cost a conforming application. I know for instance that you are not able to build a vertical wall (say of bricks or concrete) to stop erosion. This is really important source information for an owner who wants to remove an ugly and inadequate mess typical of many here.
- From my recent experience of building a house within this 100m setback (wave run-up studies, environmental impact reports, etc, etc), I'm guessing that the cost of any such approved structure is probably very high and prohibitive for most people. This leaves many with no options other than to resort to short term solutions by patching up what they have as best as they can, using whatever materials they see fit. (It also encourages desperate people to surreptitiously do things that are not approved.) Not a question.
- Finally, are we not even allowed to work behind these structures (i.e. in our own yards) to prevent the loss of soil which is flushed through the sea wall by the almost continuous flow subsurface rain water? This is causing locals as much damage as that from sea water ingress (and, where I live, is largely a direct result of inadequate storm water drainage in Cove Boulevard!).
Thanks in anticipation, Tony"
and, after further thoughts:
"Hi Greg. I have just reread your response below and I am a little confused. A critical issue you raise refers to land that is "reserved as an aquatic reserve under the Fisheries Management act 1994 or as a Marine Park under the Marine Parks act 1997". North Arm Cove south of the sanctuary zone (i.e. in the residential zoned area) is not a marine park. Nor according to http://www.environment.nsw.gov.au/nationalparks/parktypes.aspx?type=aquaticreserve is it an aquatic reserve. So the SEPP issue of environmental sensitivity doesn't seem to have relevance to our situation and the 100m rule doesn't apply.
It would seem that the regulations pertaining to Crown Land do apply if the Lands Department has the legal right to change the mean high water line from that specified on the original title deeds (which owners understood to be valid when they purchased their properties!). Assuming this to be the case, owners can't do anything below the new high water line without approval. But owners are not told what kind of structures would be approved below the high water line (no standards are given), so they can't make an application.
However, it would seem that owners can make changes on their own properties behind the mean high water line to prevent further erosion of their sea walls. Is this right? Regards, Tony"
I will report the replies I receive. Tony Hann
