Australia: Swept away – sea front erosion control in Queensland

Australia boasts approximately 60,000 kilometres of some of the most beautiful coastline in the world. Sun, surf and sea have long been a pillar of the Australian tourism industry and, indeed, the Australian way of life. Around 82% of the population already lives within 50 kilometres the coast and urban density in coastal centres continues to rise.¹

The popularity of coastal living in the sunburnt country has driven a boom in beach front property prices; the average cost of a home in Surfer's Paradise on Queensland's Gold Coast is $1.25 million, approximately three and a half times median house prices in the state's regional centre of Toowoomba. Such popularity has meant that beach front developments have long presented a significant financial opportunity for developers. 

However, the impacts of recent wild weather along the east coast, particularly on Sydney's northern beaches, is posing significant risks to beach front developments.²Add to this, that current climate science suggests that sea levels are rising and extreme weather events are likely to become more common,³ incidents such as those at Collaroy and Narrabeen may become all too regular. So, what mechanisms are available to potential developers and landowners, to protect private property from being swept away by the sea?

How is coastal land protected from erosion?

Seawalls are a common method of coastal erosion control. They aim to limit erosion by reducing the amount of sand which is swept away during large seas.⁴However, there are several downsides to seawall construction: 

• seawalls are very expensive, not only in terms of construction but maintenance costs as well. 
• their practical effect on limiting erosion is questionable. Some studies suggest seawalls have little to no impact on erosion rates, while actually increasing erosion on adjacent non-walled beaches.⁵
• they have significant environmental impacts. Research suggests that seawalls promote the introduction of exotic species through construction materials and the creation of novel habitats. They also reduce natural habitat areas (and accordingly biodiversity).⁶
• in instances where seawalls are constructed to protect private land, there can be a community perception that they limit public access to the coastline.   

As a result, seawall construction is often a heated topic, particularly where seawalls are proposed to protect private, rather than public land.  Indeed, news reports suggest that Collaroy and Narrabeen residents are now considering legal action regarding the local government's decision not to construct a seawall previously.⁷ So who is ultimately responsible for the construction of seawalls to protect private land and what rights do landowners have to ensure that their land is protected from erosion?                  

How is coastal development regulated in Queensland?

Generally

The regulatory regime applying to seawalls is complex.

Development in Queensland's coastal zone⁸ is regulated by the Sustainable Planning Act 2009 (Qld) (SPA), the Coastal Protection and Management Act 1995 (Qld) (CPMA) and applicable local government planning schemes.  However, additional layers of regulation can be added where the seawall impacts particular state or national interests, such as fisheries or ports. 

At a general level, Queensland's coastal zone must be managed in accordance with the Queensland Coastal Management Plan (QCMP).⁹ However, the QCMP provides guidelines for the management of state and local government controlled coastal areas but does not apply to development applications under SPA.  Key management policies of the QCMP include:¹⁰

• maintaining coastal landforms and physical coastal processes;
• conserving nature; and
• maintaining or enhancing public access to coastal areas.

Additionally, under the CPMA, coastal management districts can be established.¹¹ Development within a coastal management district is regulated by SPA and the state development assessment provisions (SDAP), the requirements of which are set out below.

Development applications in the coastal zone

A seawall is a form of tidal works.¹²Under SPA, tidal works are a form of operational works,¹³ which are code assessable.¹⁴ The effect of this is that to lawfully construct a seawall, a development application would need to be made to the relevant assessment manager and would be assessed against the IDAS provisions of SPA.

The assessment manager for the development application for the seawall can be either the relevant local government or the chief executive, depending on where the seawall is located.¹⁵

Where the seawall is located in a costal management district, the assessment manager will be the chief executive,¹⁶ and the application is assessable against the SDAP.¹⁷ Where the seawall is a local government tidal area (which is not a coastal management district),¹⁸ the assessment manager will be the local government,¹⁹ and will be assessable against the:²⁰

• IDAS code for development applications for prescribed tidal work (IDAS Code);²¹ and
• applicable local government planning scheme.

Where the local government is the assessment manager, the chief executive will be a concurrence agency, and will have jurisdiction to assess the application against the purposes of SPA.²²

The effect of this is that there are myriad state and local government policies which can be applied to a development application for a seawall, depending on its location.  However, some common assessment themes require seawalls to: 

• have minimal environmental impacts; ²³
• not adversely affect public access to the beach;²⁴ and
• be undertaken as a last resort.²⁵

Practically, despite being code (rather than impact) assessable, community opposition can still be a relevant factor in the assessment process.  Especially, where the community opposition can be articulated in terms of non-compliance with relevant codes, for example by restricting public access to the beach.  

Tidal works in an emergency

In the case of a coastal emergency, SPA allows operational works which are tidal works to be undertaken without a development permit, where there is a threat to existing structures or safety.²⁶

The effect of this appears to be that in the event of a coastal emergency, a seawall can be constructed without a development permit. Coastal emergency is not defined in the SPA or the CPMA, however, logically it would seem to include events such as those experienced at Collaroy and Narrabeen.

This provision remains untested.  Practically, it seems unlikely that a local government would undertake a significant piece of development without complying with the assessment process.  Additionally, the limits of an 'emergency' remain undefined.  It could be that the time taken to construct a seawall would outlast the emergency giving rise to it, meaning that that the seawall would need to comply with the assessment process outlined above.  Therefore, it would be ill advised for a developer to rely on this provision to circumvent the assessment provisions, in all but the direst circumstances.                 

A way forward?

Current science suggests extreme weather events, such as those recently felt along the east coast of Australia, are only going to become more frequent.  However, regulation regarding the installation of seawalls in Queensland remains complicated and (in some cases) fraught.

Landowners and developers have an obvious interest in ensuring (to the greatest degree possible) that their land is protected from erosion and extreme weather.  Local governments and state authorities must balance the interests of private landowners against the cost, environmental impacts of and community opposition to the installation of seawalls to protect private land (and the investment by individual landowners in that land). 

One option available to local governments is to levy special rates on the owners of the land which the seawall is designed to protect.  However, this option only addresses the cost implications of a seawall. The regulations governing the installation of seawalls requires a balance between the threats to private land and environmental and community concerns. The result? Protection of private land by seawall can't be guaranteed. 

Footnotes

¹ Hugo, G, Fiest, H & Tan, G, Population Change in Australia 2006 to 2011, Australian Population and Migration Research Centre, March 2013, Vol. 1 (No. 3), available here.

² For news coverage of the impacts of storms at Collaroy here and here.

³ Slott, J.M., Murray, A.B., Ashton, A.D., Crowley, T.J., 2006, 'Coastline responses to changing storm patterns', Geophysical Research Letters, Vol 33, L18404.

⁴ Bowra, K, Hunt, S, McGrath, J & Pistol, D, 'Last line of defence – seawalls', Queensland Coastal Conference 2011, page 2.

5 See Basco, D, Bellomo, D, Hazelton, J, Jones, B, 'The influence of seawalls on subaerial beach volumes with receding shorelines', Coastal Engineering, Vol. 30 (Issue 3-4) (1997), pp. 203 – 233.

⁶ Defeo, O, McLachlan, A, Schoeman, D, Schlacher T, Dugan, J, Jones, A, Lastra, M & Scapini, F, 'Threats to sandy beach ecosystems: A review', Estuarine, Coastal and Shelf Science, Vol. 81 (2009), pp. 1-12 at pp. 6-7.

⁷ See 'Sydney storm: Collaroy residents blame local council and the Greens for stopping a sea wall being built more than a decade ago', Daily Mail, 8 June 2016, available here.

⁸ See CPMA, s15.

⁹ CPMA, ss 20, 21.

¹⁰ A copy of the QCMP is available here

¹¹ CPMA, s54.

¹² SPA, schedule 3; Coastal Protection and Management Act 1995 (Qld) (CPMA), Schedule, tidal works definition ss 1(d) and 2(a).

¹³ SPA, s7(1)(h)(i).

¹⁴ SPA, s232; Sustainable Planning Regulations 2009 (Qld) (SPR), schedule 3, part 1, table 4, item 5. Note that tidal works can be self-assessable where they are undertaken under the Goldcoast Waterways Authority Act 2012 (Qld), or are declared to be self-assessable under the Coastal Protection and Management Regulation 2003 (SPR, schedule 3, Part 2, Table 4, item 8).

¹⁵ SPR, schedule 3, part 1, table 4, item 5.

¹⁶ SPR, schedule 6, table 3, item 6(a)(ii).

¹⁷ SPR, schedule 5, part 1, table 4, item 7.

¹⁸ For the definition of local government tidal area see SPA, schedule 3, tidal area (1)(c), essentially it includes the area 50 meters seaward of the high water mark.

¹⁹ SPR, schedule 6, table 1, item 1(b).

²⁰ SPR, schedule 5, part 1, table 4, item 6;

²¹ Coastal Management Protection Regulations 2003 (Qld), schedule 4A. 'Prescribed tidal work' is any tidal work which occurs within a 'local government tidal area' – see Coastal Protection and Management Regulation 2003 (Qld), s14.

²² SPR, schedule 7, table 2, item 13.

²³ See for example IDAS Code, s9(f)(iii); SDAP, module 10, table 10.1.1, PO5, PO9

²⁴ See for example IDAS Code, s2(f)(i); SDAP, module 10, table 10.1.1, PO10

²⁵ See SDAP, module 10, table 10.1.1, PO8

²⁶ SPA, s585(1).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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