An Act to amend the Coastal Protection Act 1979 and other legislation to deal with coastal erosion and projected sea level rise; and for other purposes.
1 Name of Act
This Act is the Coastal Protection and Other Legislation Amendment Act 2010.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
Schedule 1 Amendment of Coastal Protection Act 1979 No 13
[1] Section 3 Objects of this Act
Insert after section 3 (g):(h) to encourage and promote plans and strategies for adaptation in response to coastal climate change impacts, including projected sea level rise, and(i) to promote beach amenity.
[2] Section 4 Definitions
Insert in alphabetical order in section 4 (1):means a person who is appointed as an authorised officer under section 7.beach means the area of unconsolidated or other readily erodable material between the highest level reached by wave action and the place where tidal or lake waters reach a depth of 10 metres below Australian Height Datum.Coastal Authority—see section 6.coastal hazard means the following:(a) beach erosion,(b) shoreline recession,(c) coastal lake or watercourse entrance instability,(d) coastal inundation,(e) coastal cliff or slope instability,(f) tidal inundation,(g) erosion caused by tidal waters, including the interaction of those waters with catchment floodwaters.Coastal Panel means the NSW Coastal Panel established under Part 2A.coastal protection works means activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes seawalls, revetments, groynes and beach nourishment.coastal zone management plan means a coastal zone management plan made under Part 4A.Department means the Department of Environment, Climate Change and Water.—see section 4C.Director-General means the Director-General of the Department.emergency action subplan means that part of a coastal zone management plan that deals with the matter referred to in section 55C (1) (b) (emergency action during periods of beach erosion).emergency coastal protection works—see Division 1 of Part 4C.—see section 55T (8).landowner or owner of land, in relation to land that is part of a strata scheme (within the meaning of the Strata Schemes Management Act 1996), means, for the purposes of Parts 4C and 4D, the relevant owners corporation.public land means:(a) Crown land within the meaning of the Crown Lands Act 1989 or land within a reserve as defined in Part 5 of that Act, orbut does not include any land reserved under the National Parks and Wildlife Act 1974 or land acquired under Part 11 of that Act.(b) land owned or under the care, management or control of a council or a public authority,relevant local council, in relation to emergency coastal protection works and coastal protection works, means:(a) if the works are within the area of a council—that council, or(b) if the works are not within the area of any council—the council whose area is nearest to the works.residential building means a building (such as a dwelling-house or residential flat building) that is solely or principally used for residential purposes.road work has the same meaning as in the Roads Act 1993.
[3] Section 4B Inspection of maps outlining coastal zone
Omit “Infrastructure, Planning and Natural Resources” wherever occurring in section 4B (1) and (2).Insert instead “Planning”.
[4] Section 4C
Insert after section 4B:4C Designated authorities for landThe following Coastal Authorities are designated authorities for land for the purposes of this Act:(a) in relation to all land—the Minister,(b) in relation to land within a local government area, or that is a beach adjacent to a local government area, of a council that is a Coastal Authority—the council,(c) in relation to Crown land within the meaning of the Crown Lands Act 1989 or land within a reserve as defined in Part 5 of that Act—the Minister administering that Act,(d) in relation to public land not referred to in paragraph (c)—the public authority that is the owner of, or has the care, control or management of, the land.
[5] Parts 2 and 2A
Insert after Part 1:Part 2 AdministrationDivision 1 Coastal Authorities and their authorised officers6 Coastal Authorities(1) For the purposes of this Act, each of the following is a Coastal Authority:(a) the Minister,(b) the Minister administering the Crown Lands Act 1989,(c) a council whose area, or part of whose area, is included within the coastal zone or whose area includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries,(d) a roads authority (within the meaning of the Roads Act 1993) for a road within the coastal zone or on land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries,(e) a public authority that is the owner of, or has the care, control or management of, land within the coastal zone or land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries (other than a State owned corporation or a reserve trust within the meaning of Part 5 of the Crown Lands Act 1989).(2) A Coastal Authority:(a) may exercise the functions of an authorised officer, and(b) when exercising those functions, has all the immunities of an authorised officer.7 Appointment of authorised officers(1) A Coastal Authority may appoint a person to be an authorised officer.(2) A Coastal Authority must not appoint a person to be an authorised officer under this section unless the person has undergone such training or has such competency as is required by the Minister.(3) In appointing authorised officers, a Coastal Authority may specify that the appointment is subject to conditions or restrictions relating to:(a) the functions that are exercisable by those officers, or(b) when, where and in what circumstances those officers may exercise functions.8 Identification cards(1) A Coastal Authority is to issue an identification card that complies with this section to each authorised officer.(2) The identification card must:(a) state that it is issued under this Act, and(b) give the name of the person to whom it is issued, and(c) state the date (if any) on which it expires, and(d) describe the kinds of premises to which the powers of the authorised officer extend, and(e) state any limitations on the functions that the authorised officer is authorised to exercise under this Act that are imposed by the authorised officer’s instrument of appointment.(3) Each authorised officer who is not a police officer must:(a) carry his or her identification card as an authorised officer while exercising functions under this Act, and(b) if requested to do so by any person affected by the exercise of a function by an authorised officer under this Act, produce the officer’s identification card to the person.Note—See section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 in relation to a police officer’s obligation to produce evidence that the police officer is a police officer (unless the police officer is in uniform).(4) A person who has been issued with an identification card and who stops being an authorised officer must return his or her identification card to the appropriate Coastal Authority as soon as practicable.(5) A person must not contravene subsection (4) without reasonable excuse.Maximum penalty: 10 penalty units.9 DelegationA Coastal Authority may delegate the exercise of any function of the Coastal Authority under this Act (other than this power of delegation) to:(a) an authorised officer, or(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.Division 2 Powers of authorised officers10 General powers of authorised officers: application of Chapter 7 of Protection of the Environment Operations Act 1997(1) An authorised officer has and may exercise the functions of an authorised officer under Chapter 7 and section 319A of the Protection of the Environment Operations Act 1997 (the POEO Act) for the following purposes:(a) for determining whether there has been compliance with or a contravention of this Act and the regulations,(b) for obtaining information or records for purposes connected with the administration of this Act and the regulations,(c) generally for administering this Act and the regulations.(2) The provisions of Chapter 7 (other than Part 7.2) and section 319A of the POEO Act apply to and in respect of this Act as if those provisions were part of this Act, subject to the following modifications:(a) references in those provisions to an authorised officer are to be read as references to an authorised officer appointed by a Coastal Authority under this Act,(b) references in those provisions to “this Act” are to be read as references to this Act,(c) references in those provisions to “the EPA” are to be read as references to a Coastal Authority,(d) a Coastal Authority is taken to be the appropriate regulatory authority for matters concerning this Act,(e) land that is a beach is taken not to be part of premises that are used only for residential purposes.(3) For the avoidance of doubt, a prosecution of a person for an offence against a provision of Chapter 7 (other than Part 7.2) of the POEO Act (as applying under this section) is to be taken as if the offence were an offence against this Act.(4) The functions that an authorised officer has under Chapter 7 of the POEO Act are, for the purposes of any provision of this Act, taken to be functions under this Act.(5) If an authorised officer has functions in respect of a matter under both Chapter 7 of the POEO Act (as applying under this section) and under any other provision of this Act, the fact that there is a restriction on the exercise of a function under this Act does not of itself operate to restrict the exercise by an authorised officer of any similar or the same function under Chapter 7 of the POEO Act.11 Offence relating to authorised officers and exercise of functions under Act(1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Act is guilty of an offence.(2) A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Act, knowing that it is false or misleading in a material respect is guilty of an offence.(3) A person who wilfully delays, threatens, intimidates or obstructs an authorised officer in the exercise of the authorised officer’s powers under this Act is guilty of an offence.(4) A person who interferes with, damages or destroys or does any act which may tend to interfere with, damage or destroy any vehicle, vessel, asset or equipment which is used in relation to the exercise of a function by an authorised officer under this Act is guilty of an offence.(5) A person who impersonates an authorised officer is guilty of an offence.Maximum penalty:(a) in the case of a corporation—500 penalty units and, in the case of a continuing offence, a further penalty of 50 penalty units for each day the offence continues, or(b) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues.Part 2A NSW Coastal Panel12 Constitution of NSW Coastal Panel(1) There is to be a NSW Coastal Panel.(2) The Coastal Panel is to consist of 7 members appointed by the Minister of whom:(a) one is to be a person nominated by the Director-General, and(b) one is to be a person nominated by the Director-General of the Department of Planning, and(c) three are to be nominated by the Local Government and Shires Associations of New South Wales, and(d) one is to be a person nominated by the Chief Executive of the Land and Property Management Authority, and(e) one is to be appointed by the Minister with the concurrence of the Local Government and Shires Associations of New South Wales.(3) The person appointed under subsection (2) (e) is to be the Chairperson of the Coastal Panel. The person appointed under subsection (2) (a) is to be the Deputy Chairperson of the Coastal Panel.(4) A person appointed under subsection (2) (a)–(d) must have qualifications and experience relevant to coastal planning, coastal engineering, coastal geomorphology, coastal environmental management or estuary management.(5) The Coastal Panel is a NSW Government agency.Note—By virtue of section 13A of the Interpretation Act 1987, a NSW Government agency has the status, privileges and immunities of the Crown.(6) In appointing a member, the Minister is to have regard to the need to have a range of expertise represented among the Coastal Panel’s members.(7) For the avoidance of doubt, the Coastal Panel is a public authority for the purposes of the Environmental Planning and Assessment Act 1979.(8) Schedule 2 contains provisions relating to the constitution and procedure of the Coastal Panel.13 Functions of Coastal Panel(1) The Coastal Panel has the following functions:(a) to provide advice to the Minister on any matter referred to the Coastal Panel by the Minister relating to the coastal zone or otherwise in connection with the operation of this Act,(b) to provide advice to local councils in relation to such other matters as the Minister determines and notifies to the Coastal Panel,(c) such functions conferred or imposed on it by or under the Environmental Planning and Assessment Act 1979 relating to the granting of development consent,(d) any other function conferred or imposed on it by or under this Act, the Environmental Planning and Assessment Act 1979 or any other Act.(2) In exercising its functions, the Coastal Panel is to have regard to the objects of this Act.(3) The Coastal Panel may delegate the exercise of any function of the Coastal Panel under this or any other Act (other than this power of delegation) to:(a) any member of staff of the Department, or(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.(4) Despite subsection (3), the Coastal Panel may only delegate a function conferred or imposed on it by or under the Environmental Planning and Assessment Act 1979 relating to the granting of development consent with the concurrence of the Minister and the Minister administering that Act.
[6] Section 38 General supervision of coastal zone
Insert after section 38 (2):(3) If:(a) a public authority (the ) is required to obtain the concurrence of the Minister to carry out any development in the coastal zone under subsection (1) (a), and(b) the developer authority is required under any law to obtain a grant of a right or consent from another public authority (the ) to carry out that development, andconcurrence by the Minister to the carrying out of the development by the developer authority is taken to also be concurrence to the grant of the right or consent by the approval authority.(c) the approval authority is required to obtain the concurrence of the Minister to the grant of the right or consent under subsection (1) (b),(4) This section does not apply to the use or occupation of any part of the coastal zone, or the carrying out of any development in the coastal zone, for the placement or maintenance of emergency coastal protection works.
[7] Section 39 Special provisions respecting coastal development
Insert after section 39 (4):(5) If:(a) a public authority (the ) is required to obtain the concurrence of the Minister to carry out any development in the coastal zone under subsection (1) (a), and(b) the developer authority is required under any law to obtain a grant of a right or consent from another public authority (the ) to carry out that development, andconcurrence by the Minister to the carrying out of the development by the developer authority is taken to also be concurrence to the grant of the right or consent by the approval authority.(c) the approval authority is required to obtain the concurrence of the Minister to the grant of the right or consent under subsection (1) (b),(6) Subsection (1) does not apply to the carrying out of any development in the coastal zone for the placement or maintenance of temporary coastal protection works.
[8] Sections 48–50
Omit the sections.
[9] Section 53 Regulations
Omit the section.
[10] Section 55 Carrying out of certain works
Insert after section 55 (6):(7) Nothing in this section authorises the Minister or the Governor to direct a specified person to carry out specified work.
[11] Section 55A
Omit the section. Insert instead:55A Minister to have regard to objects of ActIn exercising his or her functions under this Part, the Minister is to have regard to the objects of this Act.
[12] Section 55B Requirement for coastal zone management plans
Insert after section 55B (4):(5) A council must, if directed to do so by the Minister, review the council’s existing coastal zone management plan and make a new plan in accordance with this Part to replace the existing plan.(6) A council required under this section to review its existing coastal zone management plan and make a new plan to replace that existing plan must do so:(a) within 12 months after being directed to do so by the Minister, or(b) within such longer period as may be agreed to by the Minister.(7) If a council fails to comply with this section, the Minister may:(a) review the council’s existing plan and make a new plan to replace that existing plan, and(b) recover from the council the costs of doing those things, and(c) publish the new plan in the Gazette.Such a new plan is taken to have been made by the council in accordance with this Part.(8) For the avoidance of doubt, the Minister may give a direction under subsection (1) or (5) in relation to part of an area included within the coastal zone.(9) In this section, coastal zone includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries.
[13] Section 55C Matters to be dealt with in coastal zone management plans
Omit “of the kind that may be carried out under the State Emergency and Rescue Management Act 1989, or otherwise,” from section 55C (b).Insert instead “carried out”.
[14] Section 55C
Insert at the end of section 55C (c):, and(d) where the plan relates to a part of the coastline, the management of risks arising from coastal hazards, and(e) where the plan relates to an estuary, the management of estuary health and any risks to the estuary arising from coastal hazards, and(f) the impacts from climate change on risks arising from coastal hazards and on estuary health, as appropriate, and(g) where the plan proposes the construction of coastal protection works (other than emergency coastal protection works) that are to be funded by the council or a private landowner or both, the proposed arrangements for the adequate maintenance of the works and for managing associated impacts of such works (such as changed or increased beach erosion elsewhere or a restriction of public access to beaches or headlands).(2) A coastal zone management plan must not include the following:(a) matters dealt with in any plan made under the State Emergency and Rescue Management Act 1989 in relation to the response to emergencies,(b) proposed actions or activities to be carried out by any public authority or relating to any land or other assets owned or managed by a public authority, unless the public authority has agreed to the inclusion of those proposed actions or activities in the plan.(3) Despite subsection (1), the Minister may give a direction under section 55B that a council make a coastal zone management plan that makes provision for only one or more of the matters referred to in that subsection as specified in the direction.
[15] Section 55D Guidelines for preparation of draft coastal zone management plans
Insert after section 55D (2):(3) The Minister is to ensure that notification of any guidelines is published in the Gazette.(4) A copy of the Minister’s guidelines must be available for public inspection on the Internet website of the Department.
[16] Section 55G Certification by Minister
Omit “for approval” from section 55G (1).Insert instead “for certification under this section”.
[17] Section 55G (2)–(6)
Omit section 55G (2). Insert instead:(2) Before submitting the draft coastal zone management plan to the Minister under subsection (1), the council must consult with other public authorities in the manner specified in the Minister’s guidelines.(3) Before certifying the draft coastal zone management plan submitted to the Minister under subsection (1), the Minister may refer the plan to the Coastal Panel for advice.(4) The Minister may:(a) certify, or refuse to certify, that a draft coastal zone management plan submitted to the Minister has been prepared in accordance with the requirements of this Act, or(b) if the Minister has referred the plan to the Coastal Panel for advice under subsection (3) and the Coastal Panel has recommended changes to the plan—return the plan to the council and direct the council to amend and resubmit the plan with the recommended changes.(5) A council required to amend and resubmit a plan with recommended changes must do so:(a) within 90 days after being directed to do so by the Minister, or(b) within such longer period as may be agreed to by the Minister.(6) If a council fails to amend and resubmit a plan as required by this section, the Minister may:(a) make the plan with the recommended changes instead of the council, and(b) recover the cost of making the plan from the council, and(c) certify that the draft coastal zone management plan has been prepared in accordance with the requirements of this Act and publish it in the Gazette.Such a plan is taken to have been made by the council in accordance with this Part.
[18] Section 55H Gazettal and commencement of coastal zone management plans
Omit “approves a draft coastal zone management plan” from section 55H (1).Insert instead “certifies that a draft coastal zone management plan has been prepared in accordance with the requirements of this Act”.
[19] Section 55I Amendment and repeal of coastal zone management plans
Insert “(in whole or in part)” after “amended” in section 55I (1).
[20] Section 55J Availability of coastal zone management plans
Insert at the end of the section:(2) A copy of a coastal zone management plan must be available for public inspection on the Internet website of the council within 7 days of its publication in the Gazette.
[21] Section 55K
Omit the section. Insert instead:55K Breach of coastal zone management plan: offenceA person must not carry out work for the purpose, or that has the effect, of preventing or remediating beach erosion, or for protecting property affected or likely to be affected by beach erosion, unless the work is:(a) in accordance with the relevant coastal zone management plan, or(b) development for which consent has been granted or exempt development under the Environmental Planning and Assessment Act 1979 or an approved project within the meaning of Part 3A of that Act, or(c) emergency coastal protection works.Maximum penalty: 4,500 penalty units (in the case of a corporation) or 2,250 penalty units (in any other case).
[22] Section 55L Breach of coastal zone management plan: restraint
Insert after section 55L (4):(5) This section does not apply to a breach of a coastal zone management plan that is an act or omission that is:(a) development for which consent has been granted, exempt development or development that does not need consent under the Environmental Planning and Assessment Act 1979 or an approved project within the meaning of Part 3A of that Act, or(b) emergency coastal protection works.(6) Despite subsection (1), a council may not bring proceedings under this section to remedy or restrain a breach of a coastal zone management plan by the State or a NSW Government agency.
[23] Section 55M Breach of coastal zone management plan: order
Omit the section.
[24] Part 4B, heading
Omit the heading to Part 4B. Insert instead:Part 4B Erosion and accretion
[25] Section 55M
Insert before section 55N:55M Granting of development consent relating to coastal protection works(1) Consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that:(a) the works will not over the life of the works:(i) unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or(ii) pose or be likely to pose a threat to public safety, and(b) satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works:(i) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works,(ii) the maintenance of the works.(2) The arrangements referred to in subsection (1) (b) are to secure adequate funding for the carrying out of any such restoration and maintenance, including by either or both of the following:(a) by legally binding obligations (including by way of financial assurance or bond) of all or any of the following:(i) the owner or owners from time to time of the land protected by the works,(ii) if the coastal protection works are constructed by or on behalf of landowners or by landowners jointly with a council or public authority—the council or public authority,Note—Section 80A (6) of the Environmental Planning and Assessment Act 1979 provides that a development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of making good any damage caused to any property of the consent authority as a consequence of the doing of anything to which the consent relates.(b) by payment to the relevant council of an annual charge for coastal protection services (within the meaning of the Local Government Act 1993).(3) The funding obligations referred to in subsection (2) (a) are to include the percentage share of the total funding of each landowner, council or public authority concerned.
[26] Parts 4C and 4D
Insert after Part 4B:Part 4C Emergency coastal protection worksDivision 1 Preliminary55O Regulatory approvals not required for authorised emergency coastal protection worksA person does not require regulatory approval under this Act or any other law for emergency coastal protection works if the works are authorised by a certificate under Division 2.Note—This means that planning and associated approvals are not required for the placement and maintenance of authorised emergency coastal protection works—see section 55W.55P Meaning of “emergency coastal protection works”(1) General meaning In this Act, emergency coastal protection works means works comprising the placement of the following material, in compliance with the requirements of this section, on a beach, or a sand dune adjacent to a beach, to mitigate the effects of wave erosion on land:(a) sand, or fabric bags filled with sand, (other than sand taken from a beach or a sand dune adjacent to a beach),(b) other objects or material prescribed by the regulations (other than rocks, concrete, construction waste or other debris).(2) Requirements relating to emergency coastal protection works The requirements for the placement of material as emergency coastal protection works are as follows:(a) the material must be placed in accordance with a certificate under Division 2 that authorises the works,(b) the material must be placed by or on behalf of a landowner to reduce the impact or likely impact from the erosion on a building being lawfully used for residential, commercial or community purposes,(c) the material must be placed when:(i) beach erosion is occurring, or(ii) beach erosion is imminent, or(iii) it is reasonably foreseeable (because of proximity to the erosion escarpment) that beach erosion is likely to impact on a building being lawfully used for residential, commercial or community purposes,(d) the material must be placed by or on behalf of the landowner in accordance with any emergency action subplan that applies to the land concerned,(e) in relation to material placed before 1 September 2011—the material must be placed by or on behalf of the landowner in accordance with any requirements adopted by the Minister and published in the Gazette for the purposes of this section before 1 January 2011,(f) the material must be placed by or on behalf of the landowner in accordance with any requirements specified in the regulations for the purposes of this section.(3) A requirement in an emergency action subplan or a requirement otherwise adopted or specified under subsection (2) may:(a) apply generally or be limited in its application by reference to specified factors or exceptions, and(b) apply differently according to different factors of a specified kind.(4) For the avoidance of doubt, a requirement in an emergency action subplan or a requirement otherwise adopted or specified under subsection (2) may specify locations where emergency coastal protection works may be placed and must not be placed.(5) In the event of an inconsistency between:(a) the regulations and an emergency action subplan or a requirement adopted by the Minister (as referred to in subsection (2) (e)), the regulations prevail to the extent of the inconsistency, and(b) an emergency action subplan and a requirement adopted by the Minister (as referred to in subsection (2) (e)), the emergency action subplan prevails to the extent of the inconsistency.55Q Maximum period allowed for emergency coastal protection works(1) The maximum period allowed for emergency coastal protection works is 12 months commencing on the placement of the works.(2) Despite subsection (1), if at the expiry of the 12-month period referred to in that subsection, a development application is pending under the Environmental Planning and Assessment Act 1979 for consent to development for the purposes of coastal protection works on the same land, the maximum period allowed for the works ends:(a) where, on the final determination of that development application (including any appeals relating to that application), the application is refused—21 days after that final determination, or(b) where, on the final determination of that development application (including any appeals relating to that application), the application is granted—such further period as is specified in the consent.(3) Works cease to be emergency coastal protection works for the purposes of this Act if the works remain in place for longer than the maximum period allowed for emergency coastal protection works under this section.55R Maintenance requirements for emergency coastal protection works(1) Emergency coastal protection works must be maintained by or on behalf of the landowner in accordance with the following requirements:(a) any requirements of the certificate under Division 2 that authorises the works,(b) any requirements of an emergency action subplan that applies to the land concerned,(c) in relation to works placed before 1 September 2011—any requirements adopted by the Minister and published in the Gazette for the purposes of this section before 1 January 2011,(d) any requirements specified in the regulations for the purposes of this section.(2) Works cease to be emergency coastal protection works if they are not maintained as required by this section.(3) A requirement in an emergency action subplan or a requirement otherwise adopted or specified under subsection (1) may:(a) apply generally or be limited in its application by reference to specified factors or exceptions, and(b) apply differently according to different factors of a specified kind.55S Emergency coastal protection works may be placed only once(1) Works are not emergency coastal protection works for the purposes of this Act if the works are placed on a parcel of land (other than public land) on which other emergency coastal protection works had at any time previously been placed (other than works placed by an owner of adjacent land in accordance with section 55Z (2)).(2) Nothing in subsection (1) prevents the repair of emergency coastal protection works (including the replacement of components of the works) during the period allowed for the works.Division 2 Certificate for emergency coastal protection works55T Applications for and issue of certificate relating to emergency coastal protection works(1) An owner of land (or a person acting on behalf of, and with the written authority of, the owner of land) may apply to the relevant local council or to the Director-General for a certificate authorising the placement of emergency coastal protection works on the land.(2) The function of issuing a certificate must be delegated to an emergency works authorised officer.(3) A certificate under this Division may be issued unconditionally or subject to conditions.(4) An application for a certificate is to be accompanied by the fee determined by the Minister.(5) A certificate under this Division issued to an owner of land extends to authorise the placement of emergency coastal protection works by or on behalf of a successor in title to the land concerned.Note—See also section 55ZH for more specific provisions relating to successors in title to land.(6) For the avoidance of doubt, works are not or cease to be emergency coastal protection works for the purposes of this Act if the works are not placed or maintained, respectively, in accordance with the requirements set out in the conditions of a certificate issued under this Division.Note—See also section 55P (2) (a) and 55R (1) (a).(7) A person must not make an application to an issuing authority for a certificate to authorise the placement of emergency coastal protection works if:(a) a certificate relating to the same works has been issued by another issuing authority and is in force, or(b) an application to another issuing authority in relation to the same works is pending.(8) In this section:means an authorised officer appointed by a council or the Director-General who has been authorised in writing by the council or the Director-General, as appropriate, for the purposes of issuing certificates under this Division., in relation to an application for a certificate under this Division, means the relevant local council and the Director-General.55U Duration of certificatesA certificate under this Division does not authorise the placement of emergency coastal protection works more than 2 years after it was issued.55V Notification of other issuing authorityAs soon as practicable after the issue of a certificate under this Division, the emergency works authorised officer who issued the certificate must cause a copy of the certificate to be sent to the following:(a) the relevant council—if the officer was appointed by the Director-General,(b) the Director-General—if the officer was appointed by a council,(c) the Chief Executive of the Land and Property Management Authority—if the emergency coastal protection works are to be placed on Crown land (within the meaning of the Crown Lands Act 1989) or the placement or maintenance of those works requires the use or occupation of Crown land.Division 3 General55W Placing and maintaining emergency coastal protection works not restricted by certain legislationIf a person does not require regulatory approval under this Act or any other law for emergency coastal protection works (as provided by section 55O), the following provisions apply to the works:(a) placing and maintaining the works is not development for the purposes of the Environmental Planning and Assessment Act 1979 and is not an activity for the purposes of Part 5 of that Act,(b) Division 3 of Part 7 of the Fisheries Management Act 1994 does not apply to reclamation work that is carried out for the purpose of the works,(c) the placement or maintenance of the works does not, despite any regulation under the Marine Parks Act 1997, require the consent of the relevant Ministers within the meaning of that Act,(d) the works may be placed and maintained on community land (within the meaning of the Local Government Act 1993) despite the provisions of any plan of management under that Act applying to that land,(e) section 138 (Works and structures) of the Roads Act 1993 does not apply in relation to emergency coastal protection works placed by a person on a public road, but only if:(i) there are no road works on the public road, and(ii) the public road is not used by vehicular traffic, and(iii) the person took all practical measures to avoid placing those emergency coastal protection works on the public road.55X Notice to council and others of placement of emergency coastal protection works(1) An owner of land must, at or about the time the emergency coastal protection works are to be placed on land, notify the following of the placing of the works:(a) the relevant local council,(b) if the works are or are about to be placed on public land in reliance on section 55Z—the public authority that is the owner of, or has the care, control or management of, the land.Note—After placement of emergency coastal protection works Coastal Authorities may exercise powers under Part 4D to make orders relating to such works. Those orders include, where justified, orders to remove, alter or repair the works concerned.(2) The notification under subsection (1) is to be made:(a) in the manner and to the person or persons specified in the certificate issued under Division 2 for the works, or(b) if no such manner or person is specified—to the person or persons identified in accordance with the requirements adopted by the Minister and published in the Gazette for the purposes of section 55P.Maximum penalty:(a) in the case of a corporation—100 penalty units, or(b) in any other case—50 penalty units.(3) For the purposes of subsection (1) (b), public land that is Crown land within the meaning of the Crown Lands Act 1989 or land within a reserve as defined in Part 5 of that Act is taken to be owned by, or under the care, control or management of, the Minister administering that Act.55Y Removal of emergency coastal protection works(1) A person who has placed emergency coastal protection works (or caused such works to be placed) on land must, before the expiry of the maximum period allowed for emergency coastal protection works, remove the works and restore the land in accordance with:(a) in relation to works placed before 1 September 2011—any requirements adopted by the Minister and published in the Gazette for the purposes of this subsection before 1 January 2011, and(b) any requirements specified in the regulations for the purposes of this subsection.Maximum penalty:(a) in the case of a corporation—4,500 penalty units and 400 penalty units for each day the offence continues, or(b) in any other case—2,250 penalty units and 200 penalty units for each day the offence continues.(2) A person may not be found guilty both of an offence under subsection (1) and an offence for a failure to comply with an order under Part 4D in relation to the same failure to remove works or restore land.(3) If a person does not comply with subsection (1) (whether that person has been convicted of an offence in respect of the subsection or not), the Coastal Authority concerned may remove the works and restore the land. Any costs reasonably incurred by the Coastal Authority under this subsection may be recovered in a court of competent jurisdiction from the person as a debt due to the Coastal Authority.(4) This section does not apply to material deposited on a beach, or a structure erected, as part of development for which consent has been granted or that is exempt development or development that does not need consent under the Environmental Planning and Assessment Act 1979 or is an approved project within the meaning of Part 3A of that Act.(5) The removal of works and the restoration of land under subsection (3) is not an activity for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979.55Z Use and occupation of other land for emergency coastal protection works(1) Use and occupation of public land without permission A certificate under Division 2 that authorises a person to place and maintain emergency coastal protection works on land owned by the person extends to authorising the person to use and occupy public land for the placing and maintaining of the works (without obtaining a lease, licence or permit in respect of, or an easement or right-of-way in relation to, the land), but only if the person takes all reasonable measures:(a) to avoid using or occupying the public land for the placing and maintaining of the works, and(b) to avoid damage to assets and vegetation on the public land, and(c) to minimise risks to the public on the public land, and(d) to maintain reasonable public access (including access for local and public authorities) to and through the beach concerned, and(e) to minimise disruption of the public use of the beach concerned.(2) Use and occupation of adjacent private land with permission A certificate under Division 2 that authorises a person to place and maintain emergency coastal protection works on land owned by the person extends to authorising the person to use and occupy adjacent land (other than public land) for the placing, maintaining and removal of the works, but only if the person has obtained a lease, easement, right-of-way or other interest in land from the owner of the adjacent land to use and occupy that land for that purpose.(3) Public authorities not to unreasonably refuse access to public land A public authority must not unreasonably refuse a person access to the public authority’s public land to enable the person to lawfully place emergency coastal protection works on land (whether public or private).Part 4D Powers with respect to material and structures on beaches55ZA Order to remove certain materials and structures unlawfully placed on beaches (other than emergency coastal protection works)(1) A Coastal Authority may, in respect of a beach on land for which it is a designated authority, order a person to remove material deposited by or on behalf of the person on the beach that, in the opinion of the Coastal Authority:(a) causes or is likely to cause increased erosion of a beach or land adjacent to a beach, or(b) unreasonably limits or is likely to unreasonably limit public access to a beach or headland, or(c) poses or is likely to pose a threat to public safety.(2) A Coastal Authority may order a person who is the owner or occupier of land that is on or has a frontage to a beach for which it is a designated authority:(a) to refrain from erecting a structure on the beach or on or near the boundary of the land and the beach, orif the structure, in the opinion of the Coastal Authority:(b) to remove a structure erected by or on behalf of the person on the beach or on or near the boundary of the land and the beach (not being a structure lawfully erected before the commencement of this section),(c) causes or is likely to cause increased erosion of a beach or land adjacent to a beach, or(d) unreasonably limits or is likely to unreasonably limit public access to a beach or headland, or(e) poses or is likely to pose a threat to public safety.(3) An order under this section that requires a person to remove material or a structure from land may, if the Coastal Authority that made the order is of the opinion that the material or structure has caused increased erosion of a beach, or land adjacent to a beach, include a requirement that the person restore the eroded beach or land concerned in accordance with:(a) in relation to an order made before 1 September 2011—any requirements adopted by the Minister and published in the Gazette for the purposes of this subsection before 1 January 2011, and(b) any requirements specified in the regulations for the purposes of this subsection.(4) A person who carries out work in compliance with a requirement of an order given under this section by a Coastal Authority is not subject to Part 5 of the Environmental Planning and Assessment Act 1979 in carrying out the work.(5) Before giving an order under this section that relates to Crown land within the meaning of the Crown Lands Act 1989 or land within a reserve as defined in Part 5 of that Act, a Coastal Authority must consult the Minister administering that Act.(6) This section does not apply to material deposited on a beach, or a structure erected, as part of development for which consent has been granted or that is exempt development or development that does not need consent under the Environmental Planning and Assessment Act 1979 or is an approved project within the meaning of Part 3A of that Act.(7) This section does not apply in relation to emergency coastal protection works.(8) A council may not give an order under this section to a Minister or another public authority.55ZB Stop work orders relating to materials and structures unlawfully being placed on beaches (other than emergency coastal protection works)(1) A Coastal Authority that is a designated authority for land may order a person not to carry out an activity on a beach on the land that the person is carrying out, or is about to carry out, if the Coastal Authority is of the opinion that the activity:(a) causes or is likely to cause increased erosion of a beach or land adjacent to a beach, or(b) unreasonably limits or is likely to unreasonably limit public access to a beach or headland, or(c) poses or is likely to pose a threat to public safety.(2) This section does not apply to an activity in the course of development for which consent has been granted or that is exempt development or development that does not need consent under the Environmental Planning and Assessment Act 1979 or is an approved project within the meaning of Part 3A of that Act.(3) This section does not apply if the activity comprises the placement or maintenance of emergency coastal protection works.(4) A council may not give an order under this section to a Minister or another public authority.55ZC Orders relating to emergency coastal protection works(1) A Coastal Authority that is a designated authority for land on which a person has placed (or caused to be placed) emergency coastal protection works may order the person to remove, alter or repair the works and restore the land if the Coastal Authority is of the opinion that:(a) the works are causing increased erosion of a beach or land adjacent to a beach, or(b) the works unreasonably limit public access to a beach or headland, or(c) the works pose a threat to public safety, or(d) the works have ceased to be emergency coastal protection works (for example, the works have been in place for longer than the maximum period allowed for emergency coastal protection works or the works are not being maintained as required by Part 4C or this Part or the requirements of the certificate under Division 2 of Part 4C that authorises the works).(2) A Coastal Authority that is a designated authority for land on which a person has placed (or caused to be placed) emergency coastal protection works (whether public or private land) may order the person to restore any assets or vegetation on public land that have been damaged in the course of the placement of the works.(3) A Coastal Authority that is a designated authority for public land on which a person has placed (or caused to be placed) emergency coastal protection works may order the person to move, alter or remove the works and restore the land if the Coastal Authority is of the opinion that the person did not take all reasonable measures:(a) to avoid placing those works on the public land, or(b) to avoid damage to assets or vegetation on the public land, or(c) to minimise risks to the public on the public land, or(d) to maintain reasonable public access (including access for local and public authorities) to and through the beach concerned.(4) A Coastal Authority that is a designated authority for land on which a person has placed (or caused to be placed) emergency coastal protection works may order the person to restore land that is adjacent to the land on which the works were placed if the Coastal Authority is of the opinion that the adjacent land has been damaged or disturbed by:(a) the placement, maintenance or removal of the works, or(b) erosion caused by the works.(5) An order under this section that requires a person to restore land may include a requirement that the person restore the land concerned in accordance with:(a) in relation to an order made before 1 September 2011—any requirements adopted by the Minister and published in the Gazette for the purposes of this subsection before 1 January 2011, and(b) any requirements specified in the regulations for the purposes of this subsection.(6) Before giving an order under this section relating to emergency coastal protection works, a Coastal Authority must ensure that the person or body that issued the certificate under Division 2 of Part 4C for the works is aware of the intention to make the order.Note—Certificates under Division 2 of Part 4C for emergency coastal protection works are issued by emergency works authorised officers as delegates of councils or of the Director-General of the Department of Environment, Climate Change and Water.If an emergency works authorised officer who issued such a certificate was appointed by a council, any other Coastal Authority intending to make an order under this section relating to the works must ensure that the council is aware of the proposal to make the order.If an emergency works authorised officer who issued such a certificate was appointed by the Director-General, any Coastal Authority intending to make an order under this section relating to the works must ensure that the Director-General is aware of the proposal to make the order.See section 55ZG for resolution of disputes between Coastal Authorities.(7) Before making an order under this section that relates to Crown land within the meaning of the Crown Lands Act 1989 or land within a reserve as defined in Part 5 of that Act, the Coastal Authority must consult the Minister administering that Act.(8) A council may not give an order under this section to a Minister or another public authority.55ZD General provisions relating to orders(1) An order under this Part may be given to a person by notice in writing or orally.(2) An order under this Part:(a) takes effect immediately (or from a later date specified in the written notice or at the time the order is given orally), and(b) is subject to such conditions as the Coastal Authority may specify in the written notice or at the time the order is given orally, and(c) may require a person to cease doing, or causing or permitting to be done, the relevant activity for a specified time, and(d) may require a person to do, or cause or permit to be done, the relevant activity within a specified time.(3) The Coastal Authority concerned may vary or revoke the order or the conditions of the order by further notice in writing or further oral order given to the person subject to the order.(4) An order given orally to a person ceases to have effect on the expiration of 72 hours from the time it was given unless confirmed by the Coastal Authority who gave the order by a notice in writing given to the person.(5) Subject to subsection (4), an order under this Part remains in force until whichever of the following happens first:(a) the order is revoked by the Coastal Authority concerned,(b) the activity to which the order relates obtains planning permission and evidence of the planning permission is provided to the Coastal Authority concerned.(6) A Coastal Authority is not required, before making an order under this Part, to notify any person who may be affected by the order.(7) A Coastal Authority (other than a council) that makes an order under this Part must notify the relevant local council of the following:(a) the making of the order,(b) full compliance with the order.(8) A council must keep a record of the following:(a) all orders under this Part made by it or notified to it under subsection (7) (a),(b) full compliance with an order under this Part made by it,(c) full compliance (notified to it by another Coastal Authority) with an order under this Part made by the other Coastal Authority.(9) An order under this Part given to a person does not authorise the person to enter land without the permission of the owner of the land.(10) In this section, evidence of planning permission means evidence that:(a) development consent or approval under the Environmental Planning and Assessment Act 1979 has been granted, or(b) the development concerned has become exempt development under that Act.55ZE Fee(1) The purpose of this section is to enable a Coastal Authority to recover the administrative costs of preparing and giving orders under this Part.(2) A person who is given an order under this Part by a Coastal Authority must within 30 days pay a fee of $444 (or such higher fee as may be prescribed by the regulations) to the Coastal Authority.(3) The Coastal Authority may:(a) extend the time for payment of the fee, on the application of the person required to pay the fee, or(b) waive payment of the whole or any part of the fee, on the Coastal Authority’s own initiative or on the application of the person required to pay the fee.(4) A fee is not payable for the variation of an order made under this Part.(5) A person who does not pay the fee within the time provided under this section is guilty of an offence.Maximum penalty: 200 penalty units.55ZF Failure to comply with order(1) A person who does not comply with an order under this Part is guilty of an offence.Maximum penalty:(a) in the case of a corporation—4,500 penalty units and 400 penalty units for each day the offence continues, or(b) in any other case—2,250 penalty units and 200 penalty units for each day the offence continues.(2) It is a defence to a prosecution for an offence under this section if the defendant establishes that the failure to comply with the order concerned was caused by the refusal of an owner of land to give the defendant permission to enter the land to do the act or thing required by the order.(3) If a person does not comply with the requirements of an order under this Part within the time specified (whether that person has been convicted of an offence in respect of the order or not), the Coastal Authority concerned may, where the order required the doing of any act or thing, do the act or thing.(4) Any costs reasonably incurred by the Coastal Authority under subsection (3) may be recovered in a court of competent jurisdiction from the person who is the subject of the order as a debt due to the Coastal Authority.(5) An authorised officer of a Coastal Authority may, for the purposes of doing the act or thing referred to in subsection (3), enter any premises at any reasonable time. However, this section does not empower an authorised officer to enter any part of a building used only for residential purposes without the permission of the occupier.(6) Before an authorised officer enters premises under this section, the Coastal Authority concerned must give the occupier of the premises oral or written notice of the intention to enter the occupier’s premises on a day or within a period of days specified in the notice.(7) The day or any day within the period of days specified must not be the day on which the notice is given.(8) This section does not require notice to be given if entry to the premises is made with the consent of the occupier of the premises.55ZG Resolution of disputes under Part 4C and this Part(1) If a dispute arises between a council and a Coastal Authority that is a Minister in relation to the exercise of a function under Part 4C or this Part, the Minister may direct the council as to the exercise of the function.(2) If a dispute arises between two Coastal Authorities in relation to the exercise of a function under Part 4C or this Part (other than a dispute between a council and a Minister), the dispute may be referred to the Premier for resolution:(a) by a party to the dispute, if that party is a Minister, or(b) by the Minister responsible for a party to the dispute, if that party is not a Minister.(3) The Premier may give directions as the Premier sees fit to resolve the dispute.(4) A Coastal Authority is to comply with a direction under this section.(5) This section applies to the Director-General in the same way as it applies to a Minister.55ZH Successors in title and emergency coastal protection works(1) If an original owner of land to whom a certificate under Division 2 of Part 4C has been issued ceases, before placing the authorised emergency coastal protection works on that land, to be the owner of that land, a successor in title is taken for the purposes of this Act to be the original owner. Such a successor in title may place and maintain those authorised emergency coastal protection works in accordance with that certificate.Note—A person who places emergency coastal protection works may be made the subject of an order under this Part—see section 55ZC.(2) If an original owner of land to whom a certificate under Division 2 of Part 4C has been issued ceases, after placing the authorised emergency coastal protection works on that land, but before the works are removed and the land restored in accordance with this Act, to be the owner of that land, a successor in title is taken for the purposes of this Act to be the original owner. Such a successor in title may be made the subject of an order under this Part as if the successor in title were the original owner.(3) If an order is made under this Part requiring an original owner of land who has placed emergency coastal protection works in accordance with a certificate under Division 2 of Part 4C to carry out work in relation to the works and the original owner ceases, before the work is carried out, to be the owner of the land, a successor in title:(a) is required to carry out that work, and(b) to that extent, is bound by the order in the same way as the original owner (except as provided by this section).(4) A successor in title is bound by the order under subsection (3) only if the Coastal Authority that made the order:(a) before the land concerned was transferred—notified the relevant local council under section 55ZD (7), and(b) has given a copy of the order to the successor in title.(5) For the purposes of subsection (3), the specified period within which the work is required to be carried out under the order is taken to commence from the date on which the copy of the order is given to the successor in title.
[27] Section 56A Restoration orders
Insert “or following” after “during” in section 56A (2).
[28] Section 56B
Insert after section 56A:56B Categorisation of coastal risks to landThe regulations may make provision for or with respect to the following:(a) the categorisation of land within the coastal zone into risk categories according to the level of the risk that particular land will be adversely affected by coastal hazards,(b) the determination by the Minister of the risk category to which particular land is to be allocated,(c) the determination by the Minister of the likely response of public authorities to the risks posed by coastal hazards to land within the coastal zone (on the basis of the relevant coastal zone management plan and any other instrument or public document),(d) requiring the inclusion in a certificate under section 149 of the Environmental Planning and Assessment Act 1979 issued in respect of land within the coastal zone of a statement of the risk category of the land under the regulations and of the likely response of public authorities to the risks posed by coastal hazards to the land as determined by the Minister under the regulations,(e) providing for notification of councils of the information required to be included by the regulations in a certificate under section 149 of the Environmental Planning and Assessment Act 1979 in respect of land within the coastal zone.
[29] Section 58 Penalties
Omit “100 penalty units” from section 58 (1).Insert instead “4,500 penalty units (in the case of a corporation) or 2,250 penalty units (in any other case)”.
[30] Section 58 (2)
Omit “10 penalty units”.Insert instead “400 penalty units (in the case of a corporation) or 200 penalty units (in any other case)”.
[31] Section 59 Proceedings for offences
Insert “(other than an offence against section 55K or 55Y or Part 4D)” after “this Act”.
[32] Section 59 (2) and (3)
Insert at the end of the section:(2) Proceedings for an offence against section 55K or 55Y or Part 4D of this Act may be taken before the Land and Environment Court.(3) Proceedings for an offence under this Act may be commenced within but not later than 12 months after the date on which the offence is alleged to have been committed.
[33] Sections 59A and 59B
Insert after section 59:59A Continuing offences(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by an order or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time):(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and(b) is guilty of a continuing offence for each day the contravention continues.(2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.(3) This section does not apply to the extent that a requirement of an order is revoked.59B Penalty notices(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice under this section is declared to be a penalty notice for the purposes of the Fines Act 1996.(4) A penalty notice may be served personally or by post.(5) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(6) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(7) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences.(8) The amount of a penalty prescribed by the regulations under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.(9) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
[34] Sections 60 and 61
Omit the sections. Insert instead:60 RegulationsThe Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.61 Service of notices(1) For the purposes of this Act, any notice or other document may be issued or given to a person, or may be served on a person:(a) by delivering it personally to the person, or(b) by delivering it to the place of residence or business of the person and by leaving it there for the person with some other person, or(c) by sending it by post addressed to the person at the place last shown in the records of the authority concerned as the person’s place of residence or business, or(d) by sending it by post addressed to the person at the place indicated by the person as an address to which correspondence may be posted (including for example a post office box), or(e) by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person, or(f) by leaving it addressed to the person at a document exchange or other place (in accordance with usual arrangements for the exchange or other place) indicated by the person as an exchange or place through which correspondence may be forwarded to the person.(2) This section does not affect any other mode of issuing, giving or serving a notice or other document under any other law.
[35] Sections 63–65
Insert after section 62:63 DelegationThe Minister may delegate the exercise of any function of the Minister under this Act (other than a function of the Minister as a Coastal Authority or this power of delegation) to:(a) any member of staff of the Department, or(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.64 Review of Part 4C of Act(1) The Minister is to review Part 4C of this Act to determine whether the policy objectives of the Part remain valid and whether the terms of the Part remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 2 years from the date of assent to the Coastal Protection and Other Legislation Amendment Act 2010.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years.65 Review of Act(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to the Coastal Protection and Other Legislation Amendment Act 2010.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
[36] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[37] Schedule 1, clause 3 (2) (c)
Insert at the end of clause 3 (2) (b):, and(c) publish the coastal zone management plan in the Gazette.
[38] Schedule 2
Insert after Schedule 1:Schedule 2 Constitution and procedure of Coastal Panel(Section 12 (8))Part 1 General1 DefinitionsIn this Schedule:Chairperson means the Chairperson of the Coastal Panel.Deputy Chairperson means the Deputy Chairperson of the Coastal Panel.member means any member of the Coastal Panel.Part 2 Constitution2 Terms of office of membersSubject to this Schedule and the regulations, a member holds office for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.3 RemunerationA member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.4 Deputies(1) The Minister may, from time to time, appoint a person to be the deputy of a member. The appointment is to be made in the same manner as the appointment of the member.(2) The Minister may, at any time, revoke any such appointment.(3) In the absence of a member, the member’s deputy may, if available, act in the place of the member.(4) While acting in the place of a member, a person has all the functions of the member and is taken to be a member.(5) For the purposes of this clause, a vacancy in the office of a member is taken to be an absence of the member.(6) This clause does not operate to confer on the deputy of a member who is the Chairperson or Deputy Chairperson the member’s functions as Chairperson or Deputy Chairperson.5 Vacancy in office of member(1) The office of a member becomes vacant if the member:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Minister under this clause, or(e) is absent from 3 consecutive meetings of the Coastal Panel of which reasonable notice has been given to the member personally or by post, except on leave granted by the Minister or unless the member is excused by the Minister for having been absent from those meetings, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) becomes a mentally incapacitated person, or(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.(2) The Minister may remove a member from office at any time.(3) Despite subclause (2), the Minister must not remove from office a member who was nominated by the Local Government and Shires Associations unless the Minister has consulted with the Local Government and Shires Associations.6 Filling of vacancy in office of memberIf the office of any member becomes vacant, a person is, subject to this Act and the regulations, to be appointed to fill the vacancy.7 Disclosure of pecuniary interests(1) If:(a) a member has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Coastal Panel, andthe member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Coastal Panel.(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,(2) A disclosure by a member at a meeting of the Coastal Panel that the member:(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, oris a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).(c) has some other specified interest relating to a specified company or other body or to a specified person,(3) Particulars of any disclosure made under this clause must be recorded by the Coastal Panel in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the Coastal Panel.(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Coastal Panel otherwise determines:(a) be present during any deliberation of the Coastal Panel with respect to the matter, or(b) take part in any decision of the Coastal Panel with respect to the matter.(5) For the purposes of the making of a determination by the Coastal Panel under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:(a) be present during any deliberation of the Coastal Panel for the purpose of making the determination, or(b) take part in the making by the Coastal Panel of the determination.(6) A contravention of this clause does not invalidate any decision of the Coastal Panel.(7) This clause applies to a member of a committee of the Coastal Panel and the committee in the same way as it applies to a member of the Coastal Panel and the Coastal Panel.8 Effect of certain other Acts(1) Chapter 2 of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment of a member.(2) If by or under any Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthe provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.(b) prohibiting the person from engaging in employment outside the duties of that office,9 Personal liabilityA matter or thing done or omitted to be done by the Coastal Panel, a member of the Coastal Panel or a person acting under the direction of the Coastal Panel does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability, claim or demand.Part 3 Procedure10 General procedureThe procedure for the calling of meetings of the Coastal Panel and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Coastal Panel.11 QuorumThe quorum for a meeting of the Coastal Panel is a majority of its members for the time being.12 Presiding member(1) The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson, or in the absence of both the Chairperson and the Deputy Chairperson, a person elected by the members of the Coastal Panel who are present at a meeting of the Coastal Panel) is to preside at a meeting of the Coastal Panel.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.13 VotingA decision supported by a majority of the votes cast at a meeting of the Coastal Panel at which a quorum is present is the decision of the Coastal Panel.14 Transaction of business outside meetings or by telephone(1) The Coastal Panel may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Coastal Panel for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Coastal Panel.(2) The Coastal Panel may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(3) For the purposes of:(a) the approval of a resolution under subclause (1), orthe Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Coastal Panel.(b) a meeting held in accordance with subclause (2),(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Coastal Panel.(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.15 First meetingThe Minister may call the first meeting of the Coastal Panel in such manner as the Minister thinks fit.16 Minutes of meetingsThe Coastal Panel must cause full and accurate minutes to be kept of the proceedings of its meetings.17 Minutes to be available for public inspectionThe Chairperson must, on request, make available to any member of the public a copy of the minutes of the proceedings of the meetings of the Coastal Panel.
Schedule 2 Amendment of Local Government Act 1993 No 30
[1] Section 496B
Insert after section 496A:496B Making and levying of annual charges for coastal protection services(1) A council may, in accordance with this Act and the regulations, make and levy an annual charge for the provision by the council of coastal protection services for a parcel of rateable land that benefits from the services, being services that relate to coastal protection works constructed:(a) by or on behalf of the owner or occupier (or a previous owner or occupier) of the parcel of land, or(b) jointly by or on behalf of:(i) the owner or occupier (or a previous owner or occupier) of the parcel of land, and(ii) a public authority or a council.(2) An annual charge for the provision of coastal protection services must be calculated so as to not exceed the reasonable cost to the council of providing those services (including any legal, insurance, engineering, surveying, project management, financing and similar costs associated with providing those services).Note—The coastal protection services for which an annual charge may be made and levied are services:(a) to maintain and repair coastal protection works, or(b) to manage the impacts of such works (such as changed or increased beach erosion elsewhere).See the definition of coastal protection service in the Dictionary.(3) If a person is aggrieved by the amount of the annual charge, the person may appeal to the Land and Environment Court and that Court may determine the amount.(4) The fact that an appeal is pending does not in the meantime affect the levying of the annual charge to which the appeal relates and the charge may be recovered as if no appeal were pending.(5) If a person’s appeal is, in whole or in part, successful, the council must refund any amount paid in excess of a requirement for payment under this Act.(6) If the Land and Environment Court, in the course of determining an appeal under subsection (3), determines the reasonable cost to the council of providing coastal protection services in relation to particular coastal protection works, that determination is binding in relation to the calculation of the annual charge for all other parcels of land that benefit from those same services.(7) For the avoidance of doubt, a parcel of land benefits from the provision of coastal protection services even if:(a) the services relate to private coastal protection works (such as a seawall) wholly on the parcel or on a neighbouring parcel of private land, or(b) the services are carried out on land that is outside the council’s area.(8) Subsection (1) does not authorise or permit a council to make or levy an annual charge for the provision of coastal protection services for rateable land that is held under a lease for private purposes granted under the Aboriginal Housing Act 1998 or the Housing Act 2001.(9) The Minister administering the Coastal Protection Act 1979 is to issue guidelines relating to the making and levying of charges under this section. A council is to have regard to any such guidelines when making and levying such charges.
[2] Section 505 Application of Part
Insert after section 505 (a) (v):(vi) annual charges for coastal protection services, and
[3] Chapter 15, Part 5, Division 3
Insert after Division 2 of Part 5 of Chapter 15:Division 3 Coastal protection service charges553B Restriction on levying coastal protection service charges(1) An annual charge for coastal protection services may not be levied on a parcel of rateable land in relation to existing coastal protection works unless the owner (or any previous owner) of that land has consented in writing to the land being subject to such charges.(2) Despite subsection (1), the council may make and levy an annual charge on a parcel of rateable land for coastal protection services that relate to existing coastal protection works if the owner or occupier (or any previous owner or occupier) of the parcel of rateable land contributed, after the commencement of this section, to the upgrade or expansion of the existing coastal protection works. However, any such annual charge must be calculated so as to enable the council only to recover that portion of the reasonable cost to the council of providing those services that exceeds the reasonable cost to the council of providing such services had the existing coastal protection works not been upgraded or expanded.(3) An annual charge for coastal protection services may not be levied on a parcel of rateable land in relation to any coastal protection works if:(a) the maintenance of the works or the management of the impacts of the works (as appropriate) is a condition of an approval or consent under the Environmental Planning and Assessment Act 1979 relating to the works, and(b) that maintenance or management work is not being carried out by or on behalf of the council.(4) In this section, existing coastal protection works means coastal protection works that existed before the commencement of this section.
[4] Sections 606A–606C
Insert after section 606:606A Estimates of coastal protection service charges(1) A council must, on request, provide a person who would be liable to pay an annual charge for coastal protection services in relation to proposed coastal protection works with an estimate of the person’s liability for that annual charge (if the council were to make such a charge) for each of the following 5 years.(2) A request for an estimate under subsection (1) must include any information required by the council in order to make the estimate, including but not limited to, information relating to proposed coastal protection works such as the location and type of works and their expected on-site and off-site impacts.(3) A request for an estimate under subsection (1) is to be accompanied by a fee determined by the council to cover the council’s reasonable costs in providing the estimate.(4) A council must provide the estimate within 30 days of the submission of the request (including the required information) and fee.(5) An estimate provided by the council does not bind or limit the council in the making or levying of a charge for coastal protection services under this Act.606B Review of cost of coastal protection service charges on request of ratepayer(1) A council must, on request, provide a person who is liable to pay an annual charge for coastal protection services with a report prepared by an independent person on the cost to the council of providing those services.(2) A request for a report under subsection (1) is to be accompanied by a fee determined by the council to cover the council’s reasonable costs in providing the report.(3) If a council provides a report to a person under subsection (1) the council is to make the report available to all other persons liable to pay an annual charge in relation to the same services.(4) A council is not required to provide a report under subsection (1) to a person if the council has in the previous 3 years provided or made available to the person such a report in relation to the same coastal protection services.(5) Despite subsection (2), a fee is not required to accompany the following requests:(a) a request made during the first year that an annual charge is made and levied on the relevant parcel of land,(b) a request made during the year following an increase in the annual charge by a percentage that is greater than the percentage specified in an order under section 506 for the year concerned.606C Review of cost of coastal protection service charges on direction of Minister administering Coastal Protection Act 1979(1) The Minister administering Part 4A of the Coastal Protection Act 1979 (the Coastal Protection Minister) may direct a council to provide the Coastal Protection Minister with a report prepared by an independent person on the cost to the council of providing coastal protection services.(2) A council directed to provide a report under subsection (1) must submit the report to the Coastal Protection Minister:(a) within 90 days of the direction, or(b) within such longer period as may be agreed to by the Coastal Protection Minister.(3) If a council fails to comply with this section, the Coastal Protection Minister may:(a) commission an independent person to prepare the report, and(b) recover the cost of preparing the report from the council.The council is to co-operate with the independent person in the preparation of the report.(4) The council is to have regard to any report of an independent person referred to in this section in determining an annual charge for the coastal protection services concerned.
[5] Section 733 Exemption from liability—flood liable land and land in coastal zone
Insert after section 733 (3) (a):(b) the preparation or making of a coastal zone management plan, or the giving of an order, under the Coastal Protection Act 1979, and
[6] Section 733 (3) (f2)–(f6)
Insert in appropriate order in section 733 (3):(f2) anything done or omitted to be done regarding beach erosion or shoreline recession on Crown land, land within a reserve as defined in Part 5 of the Crown Lands Act 1989 or land owned or controlled by a council or a public authority, and(f3) the failure to upgrade flood mitigation works or coastal management works in response to projected or actual impacts of climate change, and(f4) the failure to undertake action to enforce the removal of illegal or unauthorised structures that results in erosion of a beach or land adjacent to a beach, and(f5) the provision of information relating to climate change or sea level rise, and(f6) anything done or omitted to be done regarding the negligent placement or maintenance by a landowner of emergency coastal protection works authorised by a certificate under Division 2 of Part 4C of the Coastal Protection Act 1979, and
[7] Section 733 (8)
Omit the subsection. Insert instead:(8) In this section:coastal management works includes the placement and maintenance of emergency coastal protection works.coastal zone has the same meaning as in the Coastal Protection Act 1979, and includes land previously in the coastal zone under that Act and land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries.manual includes guidelines.
[8] Schedule 6 Regulations
Insert after item 7:7ACoastal protection servicesExamples—The minimum standards in carrying out such coastal protection services
[9] Schedule 8 Savings, transitional and other provisions consequent on the enactment of other Acts
Insert at the end of clause 1 (1):
[10] Dictionary
Insert in alphabetical order:coastal hazard has the same meaning it has in the Coastal Protection Act 1979.coastal protection service means a service:(a) to maintain and repair coastal protection works, orbut does not include a service that relates to emergency coastal protection works.(b) to manage the impacts of such works (such as changed or increased beach erosion elsewhere),coastal protection works means activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes seawalls, revetments, groynes and beach nourishment.emergency coastal protection works has the same meaning as in the Coastal Protection Act 1979.flooded, in relation to land, means inundated by waters derived from the runoff of rainfall on land.shoreline recession means the progressive landward movement of the average long term position of the coastline.
Schedule 3 Amendment of other legislation
[1] Clause 3 Definitions
Insert in alphabetical order in clause 3 (1):section 603 certificate means a certificate issued under section 603 (3) of the Local Government Act 1993.
[2] Schedule 3 Prescribed warranties
Insert at the end of item 1 (e) in Part 1 of the Schedule:, and(f) the land is not subject to an annual charge for the provision of coastal protection services under the Local Government Act 1993.
[3] Schedule 3, Part 1, item 2 (e)
Insert at the end of item 2 (d) (iv):, and(e) without limiting any other manner in which disclosure may occur, the vendor may disclose that land is subject to an annual charge for the provision of coastal protection services under the Local Government Act 1993 by attaching a section 603 certificate relating to the land to the contract.
[4] Schedule 3, Part 2, item 3 (f)
Insert at the end of item 3 (e) in Part 2:, and(f) the land is not subject to an annual charge for the provision of coastal protection services under the Local Government Act 1993.
[5] Schedule 3, Part 2, item 4 (e)
Insert at the end of item 4 (d) (iv):, and(e) without limiting any other manner in which disclosure may occur, the vendor may disclose that land is subject to an annual charge for the provision of coastal protection services under the Local Government Act 1993 by attaching a section 603 certificate relating to the land to the option.
[6] Schedule 3, Part 3, item 22
Insert after item 21:22Any order under Part 4D of the Coastal Protection Act 1979 in relation to emergency coastal protection works (within the meaning of that Act) on the land (or on public land adjacent to that land), except where the council is satisfied that such an order has been fully complied with.
Section 79C Evaluation
Insert at the end of section 79C (1) (iv):and(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
[1] Clause 3 Definitions
Insert in alphabetical order in clause 3 (1):coastal council means a council whose area, or part of whose area, is included within the coastal zone (within the meaning of the Coastal Protection Act 1979) or whose area includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries.
[2] Clause 228 What factors must be taken into account concerning the impact of an activity on the environment?
Insert after clause 228 (2) (o):(p) any impact on coastal processes and coastal hazards, including those under projected climate change conditions.
[3] Schedule 4 Planning certificates
Insert after clause 4:4A Certain information relating to beaches and coasts(1) In relation to a coastal council—whether an order has been made under Part 4D of the Coastal Protection Act 1979 in relation to emergency coastal protection works (within the meaning of that Act) on the land (or on public land adjacent to that land), except where the council is satisfied that such an order has been fully complied with.(2) In relation to a coastal council:(a) whether the council has been notified under section 55X of the Coastal Protection Act 1979 that emergency coastal protection works (within the meaning of that Act) have been placed on the land (or on public land adjacent to that land), and(b) if works have been so placed—whether the council is satisfied that the works have been removed and the land restored in accordance with that Act.(3) In relation to a coastal council—such information (if any) as is required by the regulations under section 56B of the Coastal Protection Act 1979 to be included in the planning certificate and of which the council has been notified pursuant to those regulations.4B Annual charges under Local Government Act 1993 for coastal protection services that relate to existing coastal protection worksIn relation to a coastal council—whether the owner (or any previous owner) of the land has consented in writing to the land being subject to annual charges under section 496B of the Local Government Act 1993 for coastal protection services that relate to existing coastal protection works (within the meaning of section 553B of that Act).Note—“Existing coastal protection works” are works to reduce the impact of coastal hazards on land (such as seawalls, revetments, groynes and beach nourishment) that existed before the commencement of section 553B of the Local Government Act 1993.
[1] Clause 201 Annual statement of council’s revenue policy
Insert after clause 201 (3) (d):(e) in relation to an annual charge for the provision by the council of coastal protection services (if any)—a map or list (or both) of the parcels of rateable land that are to be subject to the charge.
[2] Clause 217 Additional information for inclusion in annual report
Omit clause 217 (1) (e). Insert instead:(e) if the council has levied an annual charge for stormwater management services—a statement detailing the stormwater management services provided by the council during that year,(e1) if the council has levied an annual charge for coastal protection services—a statement detailing the coastal protection services provided by the council during that year,
[3] Part 13, Division 13
Insert in appropriate order in Part 13:Division 13 Standards of coastal protection services413C Standards of coastal protection services(1) A coastal protection service carried out by a council to maintain coastal protection works must maintain the structural integrity of the works to a reasonable engineering standard.(2) A coastal protection service carried out by a council to manage the impacts of coastal protection works must ensure that the works do not result in any significant change in the long term position of the coastline.