Beach protection in NSW: New measures to secure the environment and amenity of NSW beaches

Environmental and Planning Law Journal

Volumn 20, Issue 5, 2003, Pages 325-358

  Thom, Bruce ^a  

^a Coastal Council of NSW ^*  (Australia)

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EID: 2342546696     PISSN: 0813300X     EISSN: None     Source Type: Journal    
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References (149)

1. The beach in Australian society has been recently reviewed by Huntsman L, Sand in our Souls: The Beach in Australian History (Melbourne University Press, 2002).
2. The scientific and engineering literature is rich in case studies which detail the impacts of "protective" works on the integrity of beach systems. For a general discussion with examples and references, see Komar P, Beach Processes and Sedimentation (2nd ed, Prentice-Hall, New Jersey, 1998) Ch 12.
3. So-called "hard" solutions involving seawalls, revetments, breakwaters and groynes, are designed to protect public and private properties from the erosive action of waves, especially during major storm events. Considerable engineering experience in design, construction and maintaining protective structures, as well as with the use of "soft" solutions such as sand nourishment of beach areas, comes from the USA: see Shore Protection Manual (Coastal Engineering Research Centre (CE RC), US Army Corps of Engineers, Vicksburg, Miss, 1984).
4. For a critical review of the work of the US Army Corps of Engineers in protecting beaches, see Pilkey OH and Dixon KL, The Corps and the Shore (Island Press, Washington, 1996): "Strange but true, the future of the American shoreline is not in the hands of a natural resource agency but in the hands of an agency run by the US Army" (p xi).
5. Gourlay MR has written extensively on the "History of Coastal Engineering in Australia" in Kraus N (ed), History and Heritage of Coastal Engineering (American Society Civil Engineers, New York, 1996) pp 1-88
6. Coltheart L, Between Wind and Water-A History of the Ports and Coastal Waterways of New South Wales (Hale & Iremonger, 1997).
7. Gordon AD, "Sydney Sea Defences" (9th Australasian Conference on Coastal and Ocean Engineering, Adelaide, 1989) pp 149-154.
8. Gordon AD, "Sydney Sea Defences" (9th Australasian Conference on Coastal and Ocean Engineering, Adelaide, 1989) p 150.
9. CMM (NSW Government, 1990): this manual provides guidance to councils, consultants, State agencies and community groups on how to "reduce the impact of coastal hazards on individual owners and occupiers of coastal lands, thus reducing public and private losses and to ensure that future development is compatible with the hazards " (p 2). The manual is referenced in the Local Government Act 1993, s 733 (see below for further discussion).
10. The common law "doctrine of accretion" (and erosion) has a deep and rich surveying and legal history embracing the Institutes of Justinian and the Magna Carta. References pertaining to this history and to cases relevant to this article are numerous: they include Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309
11. Nichols S and McLaughlin J, "Tide Mark or Tidal Datum: The Need for an Interdisciplinary Approach to Tidal Boundary Delimitation" (1984) 38 The Canadian Surveyor 193
12. Moore JE, "Land by the Water" (1968) 41 ALJ 532
13. Gordon A, "Highwater Mark-The Boundary of Ignorance" (11th NSW Coastal Conference, Newcastle, 2001)
14. Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1279.
15. The following references were supplied to the Coastal Council by the Land Titles Office of NSW on 24 June 1999 (their reference 1956 M2389 (29/30): Hallman F, "Legal Aspects of Boundary Surveying as Applies in NSW" (nd) Survey Investigation, Ch 13
16. Surveyors (Practice) Regulation 1996 under Surveyors Act 1929
17. Willis RW, "Notes on Survey Investigation" (nd)
18. Department of Lands, " Water as a Boundary" (1989)
19. Hamer KE, "Some Aspects of Title Boundary Locations in NSW" (1967) (June) The Australian Surveyor 91.
20. Details on the "Coastal Package" can be located on the web site of the NSW Coastal Council, www.coastalcouncil.nsw.gov.au.
21. Aspects of beach management in NSW have been reviewed on numerous occasions in recent years. For instance, see Gordon A, "Beach Fluctuations and Shoreline Changes in NSW" (8th Australian Conference on Coastal and Ocean Engineering, Launceston, Institution of Engineers, Publication No 87/17, 1987)
22. James R, "The First Step for the Environmental Management of Australian Beaches: Establishing an Effective Policy Framework" (2000) 28(2) Coasta l Management 149
23. James R, "From Beaches to Beach Environments: Linking the Ecology, Human Use and Management of Beaches in Australia" (2000) 43 Ocean and Coastal Management 495
24. Thom B, "Coastal Zone Management-A Conundrum" (2000) in Coastal Engineering 2000 (Conference Proceedings, American Society of Civil Engineers, Reston, Virginia) Vol 1, pp 33-47
25. Gordon AD, "Sydney Sea Defences" (9th Australasian Conference on Coastal and Ocean Engineering, Adelaide, 1989) pp 149-154.
26. Gourlay MR has written extensively on the "History of Coastal Engineering in Australia" in Kraus N (ed), History and Heritage of Coastal Engineering (American Society Civil Engineers, New York, 1996) pp 1-88
27. For more detailed discussion of beach changes in NSW, see Gordon A, "Beach Fluctuations and Shoreline Changes in NSW" (8th Australian Conference on Coastal and Ocean Engineering, Launceston, Institution of Engineers, Publication No 87/17, 1987)
28. Chapman D, Geary M, Roy R and Thom B, Coastal Evolution and Coastal Erosion in NSW (Coastal Council of NSW, 1982)
29. Thom B and Hall W, "Behaviour of Beach Profiles during Accretion and Erosion Dominated Periods" (1991) 16 Earth Surface Processes and Landforms 113
30. Cowell P and Thom B, "Morphodynamics of Coastal Evolution" in Carter R and Woodroffe C (eds), Coastal Evolution (Cambridge University Press, 1994) pp 33-86
31. Short A, Trembanis A and Turner I, "Beach Oscillation, Rotation and the South Oscillation, Narrabeen Beach, Australia" in Coastal Engineering 2000 (American Society of Civil Engineers, 2000) Vol 3, pp 2439-2452.
32. Komar P, Beach Processes and Sedimentation (2nd ed, Prentice-Hall, New Jersey, 1998) Ch 12, provides a broader analysis of beach changes and processes.
33. Short A (ed), Handbook of Beach and Shoreface Morphodynamics (John Wiley & Sons, 1999) for a more Australian focus on beach systems and dynamics.
34. Determining the magnitude and frequency of storm events along a stretch of coast constitutes a major research exercise. This is important in estimating storm "bite" impacts on properties and set back distances from the MHWM for any new developments CMM (NSW Government, 1990): this manual provides guidance to councils, consultants, State agencies and community groups on how to "reduce the impact of coastal hazards on individual owners and occupiers of coastal lands, thus reducing public and private losses and to ensure that future development is compatible with the hazards " (p 2). The manual is referenced in the Local Government Act 1993, s 733 (see below for further discussion).
35. Over the past 25 years, several studies by geomorphologists and engineers have attempted to quantify amounts of erosion during storms: see Chapman D, Geary M, Roy R and Thom B, Coastal Evolution and Coastal Erosion in NSW (Coastal Council of NSW, 1982)
36. Thom B, "Coastal Erosion in Eastern Australia" (1974) 5 Search 198; and various reports of Public Works Department 1985 (No 85041) and 1986 (No 86026).
37. For instance, at Moruya by Thom B and Hall W, "Behaviour of Beach Profiles during Accretion and Erosion Dominated Periods" (1991) 16 Earth Surface Processes and Landforms 113
38. Narrabeen by Short A (ed), Handbook of Beach and Shoreface Morphodynamics (John Wiley & Sons, 1999) for a more Australian focus on beach systems and dynamics. Work continues at Narrabeen under the supervision of Short, and at Moruya by Jiashu Shen and Roger McLean of the Australian Defence Force Academy, Canberra, ACT.
39. See CMM (NSW Government, 1990): this manual provides guidance to councils, consultants, State agencies and community groups on how to "reduce the impact of coastal hazards on individual owners and occupiers of coastal lands, thus reducing public and private losses and to ensure that future development is compatible with the hazards " (p 2). The manual is referenced in the Local Government Act 1993, s 733 (see below for further discussion).
40. Komar P, Beach Processes and Sedimentation (2nd ed, Prentice-Hall, New Jersey, 1998) Ch 12, provides a broader analysis of beach changes and processes.
41. National Research Council, Beach Nourishment and Protection (US National Research Council, National Academy Press, Washington, DC, 1995).
42. Causes of beach change are numerous. NSW beaches are some of the best studied in the world; see Short A (ed), Handbook of Beach and Shoreface Morphodynamics (John Wiley & Sons, 1999) for a more Australian focus on beach systems and dynamics. Work continues at Narrabeen under the supervision of Short, and at Moruya by Jiashu Shen and Roger McLean of the Australian Defence Force Academy, Canberra, ACT.
43. Short A, Beaches of the New South Wales Coast-A Guide to their Nature, Characteristics, Surf and Safety (Australian Beach Safety and Management Programme, Surf Life Saving, NSW, 1993). Factors involved include storm episodes linked to climate variations such as El Nino, sea-level rise, sand movement alongshore in pulses or "slugs", loss of beach sand into dunes or flood-tidal deltas of estuaries, river-mouth training walls interrupting alongshore draft of sand, and impacts of seawalls and rock dumping.
44. Storm episodes occur at irregular intervals linked to periods of increased storminess associated with decadal climatic events which are little understood as well as the El Nino-Southern Oscillation; see Thom B, "Coastal Erosion in Eastern Australia" (1974) 5 Search 198; and various reports of Public Works Department 1985 (No 85041) and 1986 (No 86026).
45. Chapman D, Geary M, Roy R and Thom B, Coastal Evolution and Coastal Erosion in NSW (Coastal Council of NSW, 1982)
46. Short A, Beaches of the New South Wales Coast-A Guide to their Nature, Characteristics, Surf and Safety (Australian Beach Safety and Management Programme, Surf Life Saving, NSW, 1993). Factors involved include storm episodes linked to climate variations such as El Nino, sea-level rise, sand movement alongshore in pulses or "slugs", loss of beach sand into dunes or flood-tidal deltas of estuaries, river-mouth training walls interrupting alongshore draft of sand, and impacts of seawalls and rock dumping.
47. Measurement of shifts in the MHWM is not easy. As stated by Gordon A, "Highwater Mark-The Boundary of Ignorance" (11th NSW Coastal Conference, Newcastle, 2001): "The ability to reliably define MHWM at a site is a matter which has been questioned at length. The concept of locating the interception of the horizontal plane of MHWM with a dynamic beach profile that is being constantly transformed, in order to obtain a meaningful and repeatable property boundary is demonstrably ridiculous. "
48. He cites Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309, working in New Zealand, who concluded that the current method of using MHWM as a coastal boundary definition "is quite clearly flawed" as it is based on the false premise that at least one of the surfaces is in a stationary or stable state.
49. These views are reinforced by others, although surveyors make every attempt to define MHWM in NSW according to the Surveyors (Practice) Regulation 1996, and techniques defined in the Manual of the NSW Integrated Survey Grid (Department of Lands, Sydney, 1976) pp 131-139. Difficulties in measuring changes in tidal datums in relation to property boundaries is one reason for the changes in statutes, to be discussed below.
50. The concept of what can and cannot be "indefinitely sustained" is of relevance to amendments to the CP Act, which were put to NSW Parliament in 2002 (Gordon A, "Highwater Mark-The Boundary of Ignorance" (11th NSW Coastal Conference, Newcastle, 2001), on guidelines for surveyors). Given abundant sediment supply and a quasi-stable sea level, accretion can be sustained within what are termed "sediment compartments" (also called "littoral cells").
51. Gordon A, "Highwater Mark-The Boundary of Ignorance" (11th NSW Coastal Conference, Newcastle, 2001), on guidelines for surveyors.
52. Formation of sand deposits as prograded (or accretionary) bay barriers blocking lakes, lagoons and swamps within sediment compartments are reasonably well documented in NSW: see Chapman D, Geary M, Roy R and Thom B, Coastal Evolution and Coastal Erosion in NSW (Coastal Council of NSW, 1982)
53. Roy T et al, "Wave-Dominated Coasts" in Carter R and Woodroffe C (eds) Coastal Evolution (Cambridge University Press, 1994) pp 121-186.
54. On the NSW coast, a beach environment which fluctuates considerably in spatial position, is that which flanks what is termed a "flood-tidal delta". These are sand deposits located landward of estuary entrances. They are highly dynamic surfaces moving with the combined forces of ocean waves, local wind waves, tidal currents and river flows.
55. Two recent articles in the US law journals have focused on this issue: Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1279.
56. Stone KE, "Sand Rights: A Legal System to Protect the 'Shore of the Sea'" (1999) (Winter) Stetson Law Review (see also Stone KE and Kaufman B (1988) 56(4) (July) Shore and Beach).
57. Both articles refer to the Public Trust Doctrine and the application of that doctrine to beaches, following the work of Sax JL (1990) 471 Michigan Law Review).
58. The works of Titus and Stone are very relevant to the issue of sustainability of beach systems. Stone concludes there is the need for a doctrine which would require all decision-makers to consider the effect of projects upon the supply of sand to the beach: for her Sand Rights could be recognised as part of the existing Public Trust Doctrine. However, Bonyhady has shown that while the "public trust was part of our popular political and legal culture a century ago" (p 337), the "public trust has had little influence on environmental law in Australia" (p 530) (see Bonyhady T, "A Usable Past: The Public Trust in Australia" (1995) 12 EPLJ 329).
59. A more recent article by Sax with direct relevance to problems discussed in this article was published in Blomley N, Delaney D, and Ford R (eds), The Legal Geographies Reader (Blackwell Publishers, Oxford, 2001)
60. Sax JL, "Property Rights and the Economy of Nature: Understanding Lucas v South Carolina Coastal Council", pp 221-236.
61. Extensive literature on greenhouse effect impacts on coastal regions have been summarised in the voluminous 5-year reports from the Intergovernmental Panel on Climate Change (Cambridge University Press, 1991, 1996 and 2001). CSIRO released a report entitled "The Impact of Climate Change on Coastal NSW" in 1998 prepared by the Division of Atmospheric Research, Aspendale (unpublished, on file, Coastal Council NSW).
62. Gordon A, "Highwater Mark-The Boundary of Ignorance" (11th NSW Coastal Conference, Newcastle, 2001): "The ability to reliably define MHWM at a site is a matter which has been questioned at length. The concept of locating the interception of the horizontal plane of MHWM with a dynamic beach profile that is being constantly transformed, in order to obtain a meaningful and repeatable property boundary is demonstrably ridiculous. "
63. It is important to note that along the NSW coast there are short-term sea-level anomalies that are raising the level of the highest tides and having significant inundation and local erosion impacts (see Lord D and Nalty C, "The Contribution of Ocean Water Level Anomalies to Foreshore Erosion and Inundation NSW" (9th Annual NSW Coastal Conference, Forster, 1999) pp 326-338).
64. These anomalies are very poorly understood with elevations of 20 cm or so above high spring tide predictions. Even some surveyors have raised concerns (see Smith at the Australian Survey Congress in 1980 cited by Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309, p 328) on the continued reliance of such a nebulous line as the MHWM for defining property boundaries.
65. Pittwater Council informed the Beach Management Review in 1999 that: "The current law of boundary definition is a one way trap door. It heavily favours property realignments due to medium-term accretional phases but is strongly weighted against considerations of medium to long-term erosion situations. This effect is compounded by the rights of a property owner to protect their property as a result of a sudden storm event. "
66. The NSW Government's Land Acquisition (Just Terms Compensation) Act 1991 obliges it to pay compensation for compulsory acquisitions. However, it may pass legislation providing for certain compulsory acquisitions without payment. In this regard, the Court of Appeal's decision in Durham Holdings Pty Ltd v State of NSW (1999) NSWCA 324 affirmed the State's right to compulsorily acquire land without compensation.
67. James R, "From Beaches to Beach Environments: Linking the Ecology, Human Use and Management of Beaches in Australia" (2000) 43 Ocean and Coastal Management 495provides an evaluation of legislative and policy frameworks and concludes that "effective goals for beach management are yet to be thought out and clearly articulated in Australia". Initiatives discussed in this article are designed to address such deficiencies.
68. The statutory Coastal Zone is defined in the NSW Coastal Policy 1997 as 3 nautical miles seaward of the mainland and offshore islands; 1 km landward of the open coast HWM; a distance of 1 km around all bays, estuaries, coastal lakes, lagoons and coastal rivers to the limit of mangroves or the tidal limit whichever is closer to the sea (p 23); see also CP Act as amended in 1998. For local government areas in the Sydney region, the Coastal Zone covers areas affected by and affecting coastal provinces (CP Act amended in 2002).
69. See NSW Coastal Policy 1997, Table 1, p 81.
70. Table 2 (p 82) of the Policy sets out actions that councils should consider, including Strat egic Action 2.1.3, viz that "physical and ecological processes and hazards will be considered when addressing development applications" (p 46).
71. Farrier D, Lyster R and Pearson L, The Environmental Law Handbook (3rd ed, Redfern Legal Centre Publishing, Sy dney, 1999).
72. Farrier D, Lyster R and Pearson L, The Environmental Law Handbook (3rd ed, Redfern Legal Centre Publishing, Sy dney, 1999), p 443.
73. Further qualifications to the definition in s 205(1), such as the line between headlands, are relevant to a few LGAs (eg Manly).
74. There are several other pieces of State legislation of relevance to beach management, depending on specific circumstances. For instance, the NPW Act and Fisheries Management Act 1994 may apply on beaches adjoining national parks. The Marine Parks Act 1997 may also be relevant where a marine park extends to the MHWM. The Impounding Act 1993 is intended to be used for abandoned or unattended cars or articles; it is unlikely that councils would seek to use this Act to remove dumped car bodies on foreshores as they would be more likely to use the CL Act or order powers under the LG Act to remove an obstruction. However, the Protection of the Environment (Operations) Act 1997 would be relevant where tyres or other waste were illegally deposited.
75. James R, "From Beaches to Beach Environments: Linking the Ecology, Human Use and Management of Beaches in Australia" (2000) 43 Ocean and Coastal Management 495
76. CMM, p 5, sets out the objectives of the Coastline Hazard Policy.
77. In the Premier's announcement of the Coastal Package on 26 June 2001, it was stated that the CP Act would be amended to require preparation of Coastline Plans of Management for any beach likely to be subject to emergency works and/or public access constraints.
78. NSW Coastal Policy 1997 (NSW Government) p 5. In the foreword to the Policy, jointly signed by the Premier and the Minister for Urban Affairs and Planning, the government indicated its intention to ban development of tourist resorts that impeded public access to beaches, prohibit development on beach foredunes other than for essential public purposes, and in heralding "a new approach to the protection of our precious coastline", requested the reconstituted Coastal Council to monitor the impact of the Policy.
79. Strategic actions relevant to beach management in Pt B of the NSW Coastal Policy 1997 are: 1.1.2, 1.1.3, 1.1.4, 1.4.3, 1.4.4, 1.4.5, 1.5.1 (all related to Goal 1 on environmental protection); 2.1.1, 2.1.3, 2.2.2 (related to Goal 2 on hazard management); 3.2.4 (Goal 3 on design and locational principles, see also Table 3, Appendix C for matters to be considered relevant to LEPs, DCPs, DAs); 5.1.2, 5.2.2, 5.2.9 (Goal 5 on land use matters); 6.2.1, 6.3.1, 6.4.2 (Goal 6 on settlement); 7.1.1, 7.1.2, 7.1.3, 7.1.5, 7.2.6 (see Goal 7 related to public access considerations).
80. See NSW Coastal Policy 1997, pp 83-85.
81. NSW Coastal Policy 1997, (NSW Government), pp 75-77 (Appendix B).
82. Disaster funding is available for the replacement of a structure similar to that which has been damaged by a storm. The advantage to a local council is that they will receive 100% or close to 100% subsidy for replacement of the damaged structure. Normal grants through the DLWC provide a 50% subsidy for the structure itself (and other works which may not be eligible under the NDRP). Furthermore, approvals and public consultation processes tend to be truncated in time and cost when replacing the storm damaged structure, and the cost of the design and construction is met by the NDRP. Pittwater Council informed the Beach Management Review in 1999 that "it is more financially attractive to local government to allow the structure to fail in a storm rather than to undertake protective and management actions to minimise the risk of failure". This outcome can be less than desirable on environmental, economic and social and safety grounds.
83. Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309, in particular Titus, at 1368-1370 from a USA perspective; and Coutts, at 323-324, summarising the British experience where the need to define the boundary between land owned by private citizens and the Crown arose from disputes between kings and nobles over the ownership of cargoes carried by ships that were wrecked on coastlines. Coutts comments (at 323): "Clearly it was of more importance to those who had been granted land rights by the monarch as to where the title to their land ended and the retained rights of the monarch to the sea began It is curious that the definition we now use to define where the land ends has its origins not in the definition of the land, but in the definition of the extent of the sea. In this sense Mean High Water as a land boundary was developed to define the remainder, rather than as an attempt to delineate the land itself. "
84. For example, Attorney General v Swan (1921) 21 SR 408.
85. To be discussed below, Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309 for details.
86. Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 325.
87. Comments provided by A Gordon, General Manager, Pittwater Council, 1999: see also Gordon A, "Highwater Mark-The Boundary of Ignorance" (11th NSW Coastal Conference, Newcastle, 2001): "The ability to reliably define MHWM at a site is a matter which has been questioned at length. The concept of locating the interception of the horizontal plane of MHWM with a dynamic beach profile that is being constantly transformed, in order to obtain a meaningful and repeatable property boundary is demonstrably ridiculous. "
88. Many of these problems have been reviewed in two papers by James R, "From Beaches to Beach Environments: Linking the Ecology, Human Use and Management of Beaches in Australia" (2000) 43 Ocean and Coastal Management 495
89. See further discussion below; case example in Warringah Council v Franks & Ors [1999] NSWLEC 65.
90. In the Dictionary to the LG Act, the term "public places" in now defined to include: "(a) a public reserve, public bathing reserve, public baths or public swimming pool, or (b) a public road, public bridge, public wharf or public road-ferry, or (c) a Crown reserve comprising land reserved for future public requirements, or (d) public land or Crown land that is not: (i) a Crown reserve (other than a Crown reserve that is a public place because of paragraph (a), (b) or (c), or (ii) a common, or (iii) land subject to the Trustees of Schools of Arts Enabling Act 1902, or (iv) land that has been sold or leased or lawfully contracted to be sold or leased, or (e) land that is declared by the regulations to be a public place for the purposes of this definition. "
91. A Gordon, personal communication.
92. CMM, p 5, sets out the objectives of the Coastline Hazard Policy., see Figure 3.1, p 8 on steps in preparing a CMP.
93. The Estuary Management Manual (1992), unlike the CMM, was never gazetted by the NSW Government and does not have the same status under s 733 of the LG Act.
94. Farrier D, Lyster R and Pearson L, The Environmental Law Handbook (3rd ed, Redfern Legal Centre Publishing, Sy dney, 1999), p 150.
95. Ryan v Great Lakes Council
96. State of NSW v Ryan (2002) HCA 54.
97. Egger v Gosford City Council (1988) 67 LGRA 304
98. Hicks v Lake Macquarie City Council (No 1) (1992) 77 LGRA 261
99. Hicks v Lake Macquarie City Council (No 2) (1992) 77 LGRA 269.
100. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 72 ALJR 208.
101. See Cekan v Haines (1990) 21 NSWLR 296.
102. Nikolaidis v Gosford City Council (unreported, Land and Environment Court of NSW, 10304 of 1993).
103. Scott v Byron Shire Council (unreported, Land and Environment Court of NSW, 10513 of 1996).
104. Magistrate P Lyon in NSW Fisheries v Eric Saunders (unreported, Sutherland Local Court, N3053 SLB / K1, 1998).
105. EPA v Leagher Holdings Pty Ltd (80 ACT, Bannon J).
106. Also discussed by Chief Justice M Pearlman in her address (unpublished) to the 11th Coastal Conference of NSW in Newcastle, November 2001.
107. Bignold J in Warringah Council v Franks & Ors [1999] NSWLEC 65 at [56], [62] and [63].
108. Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309, for a range of references, but note comment by Coutts, at 321, that "following the interpretation of Lord Chief Justice Hale in De Jure Mavis, the rights of the monarch extended only to the land that is usually overflowed of the sea at ordinary tides, then presumably the inference which can be drawn by the courts is that the granted property rights must begin (or is it end) at the same line".
109. There are very few cases that provide legal support for the Crown to regain possession of "lost" land (Hull v Selby Railway 151 ER 139).
110. In the USA, the question of imperceptibility with respect to erosion (and accretion) seems to be less relevant. See Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1279: "The property lines between private and public land move inland with eroding shores and seaward with advancing shores assuming that the shoreline change is natural" (p 1368, footnotes 366 and 367); and "When a shore retreats, the boundaries retreat regardless of whether the erosion is natural or anthropogenic. Were it otherwise, the public trust rights, such as lateral beach access, would be routinely eliminated" (p 1370, footnotes 374 and 338 citing County of St Clair v Lovingston, (1894) 90 US (23 Wall) 46, 66-69).
111. Other cases of relevance to the determination of what is "imperceptible" are Attorney-General of Nigeria v Holt (1915) AC 599 at 612 and 613
112. Brighton & Hove General Gas Co v Hove Bungalows Ltd (1924) 1 Ch 372
113. Verrall v Nott (1939) SR 89. In both Brighton and Verall, the position of the former boundary was established by a seawall and therefore is well-known and "ascertainable". Imperceptible accretion in front of such structures was held to be within the doctrine of accretion. Verrall v Nott is a NSW case and the Court stated: "There can be no doubt that additions have come to the plaintiff's land as described in the grant to the plaintiff's predecessors and there have been further additions made since the line of high water mark, was established in 1925 [and] the accretion was complete before December 17, 1937" (pp 100-101). A time frame of 12 years was considered to be sufficient in this case to satisfy the requirement that accretion had been "gradual".
114. There have been other legal judgments which have determined what is not slow and imperceptible. In A-G v Reeve (1885) 1 TL R675, there was evidence that the process of accretion was visible day by day. The Court held that the land so formed, involving on occasions 3 to 4 m accretion per day, remained Crown land. Likewise an earthquake by causing uplift of the land and thus moving the HWM seaward did not constitute accretion (Pearse v Boulton (1902). Similar judgments relate to rapid shifts in the location of rivers (see Humphrey v Burrell [1951] NZLR 262; Boyle Concessions Ltd v Yukon Gold Co [1917] 50 DLR 472). There is no accretion where there is a silting up of a river bed or seabed causing the bed to rise rather than causing a gradual extension of the bank into the river.
115. Southern Centre of Theosophy v State of South Australia (1982) AC 706.
116. Attorney General and Hutt River Board v Leighton (1955) NZLR 750
117. See also Brighton & Hove General Gas Co v Hove Bungalows Ltd (1924) 1 Ch 372
118. Verrall v Nott (1939) SR 89
119. US cases in Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1279.
120. US cases in Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1279.
121. Attorney General of Southern Nigeria v Holt (1915) AC 599.
122. The situation in the USA is quite variable on a State basis (see Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1279.). In all States where landowners cause accretion, no title can be granted to new lands. But in some States the owner cannot claim title to artificially formed land even if the owner is not responsible for the accretion (California, Florida, Texas, Hawaii).
123. In these States the land remains vested in "the state public trust" (Titus J, "Rising Seas, Coast al Erosion and the Taking Clause: How to Save Wetlands and Beaches without Hurting Property Owners" (1998) 57 Maryland Law Review 1369).
124. Verrall v Nott (1939) SR 89 at 100.
125. The Privy Council concluded that: "It is common ground that changes caused by human actions (other than deliberate action of the claimant) are within the doctrine of accretion, a fact which is inconsistent with the proposition that accretion is confined to the natural action of water. Indeed in Attorney-General v Chambers, Lord Chelmsford LC said that the rules applies 'to a result and not the manner of its production'" (at 720).
126. Southern Centre of Theosophy v State of South Australia (1982) AC 706.
127. Other cases of relevance to the determination of what is "imperceptible" are Attorney-General of Nigeria v Holt (1915) AC 599 at 612 and 613
128. The doctrine of accretion appears to apply to non-tidal lakes over most of the United States and Canada. See The Canadian Surveyor, Vol 23, p 451).
129. However, in England it was held in Trafford v Thrower (1929) 45 TLR 502 that the doctrine does not apply to inland lakes, canals or ponds.
130. Coutts BJ, "Mean High Water as a Cadastral Boundary" (1989) 12 Ocean and Shoreline Management 309
131. See Attorney-General v Merewether (1905) 5 SR 157
132. Attorney-General v Swan (1921) 21 SR 408
133. Williams v Booth (1910) 10 CLR 341.
134. Details on the Coastal Package are contain ed in the Coastal Council's Annual Report 2000-2001, presented to the NSW Parliament in February 2002 (see also www.coastalcouncil.nsw.gov.au).
135. Of particular interest in acceptance of the Greens amendment to s 37A on implementation of principles of ESD to omit "have regard to" and insert "promote"; both the Government and Coalition accepted this amendment. The Hon Ian Macdonald (Parliamentary Secretary) stated that "this amendment reinforces the need for the proper considerations of the principles of ecologically sustainable development in relation to coastal management" (www.parliament.nsw.gov.au/prod/lc/lchansart52.nsf/29cf58bc/500fa674225660). The Hon Ian Cohen had quoted Stein J in arguing for the amendment.
136. The redefined "coastal zone" now includes all local councils from Newcastle to Shellharbour as per definition in CP Act (amended in 1998), but with the exclusion of: (a) those parts of the local government access of Pittwater, Warringah, Manly, Woollahra, Waverley, Randwick, and Sutherland that are not (and are not likely to be) affected by and do not (and are not likely to) affect coastal processes, including coastal wave and wind action, and (b) the waters of Sydney Harbour and Botany Bay.
137. The "beach" means the area of unconsolidated material between the lowest limit of tidal or lake level and the highest level reached by wave action (s 55A).
138. Stone KE, "Sand Rights: A Legal System to Protect the 'Shore of the Sea'" (1999) (Winter) Stetson Law Review (see also Stone KE and Kaufman B (1988) 56(4) (July) Shore and Beach).
139. Under s 55E(1)(6) emergency actions are of the kind that may be carried out under the SERM Act during periods of beach erosion, "including the carrying out of related works for the protection of property affected or likely to be affected by beach erosion where beach erosion occurs through storm activity or an extreme or irregular event".
140. Under s 55M, orders that extend to demolishing a building with reference to s 678(2) of the LG Act, are extended to include the removal of a structure from a beach and material on a beach (n 55M(4). Furthermore, carrying out such work is not subject to Pt 5 of EP & A Act.
141. Within these areas covered by s 55N a boundary (the water boundary) is defined or otherwise determined by reference to the MHWM (s 55N(1)(b).
142. Amendments to the CP Act under s 55N(3) and (4) also limit the powers of the Registrar-General under Pt 14A of the Real Property Act 1900, and the Minister administering the CL Act with respect to Pt 7 of the Surveyors (Practice) Regulation 2001.
143. "Coastal foreshore" is defined as land with frontage to a beach, estuary, coastal lake, headland, cliff or rock platform (cl 3). It relates explicitly to lands within the "coastal zone" as defined under the CP Act.
144. There are some rock platforms in NSW which have small areas of beach either on or adjacent to, which become part of an area's dynamic beach system; an example is at Long Reef, Collaroy.
145. SEPP 71 prevails over other EPIs in the event of any inconsistency, but does not apply to Lord Howe Island or land to which SEPP 62-Sustainable Aquaculture-applies.
146. In announcing SEPP 71 on 28 October 2002, the Minister for Planning indicated that local councils will remain the prime consent authority for such DAs but that he may use his s 88A powers (EP&A Act) to determine or condition these DAs (see cl 11).
147. Master plans are required for subdivision in land in a "sensitive coastal location", residential subdivision of more than 25 lots located elsewhere in the coastal zone, and rural residential subdivision of more than 5 lots.
148. The Coastal Council is required to report on its formal advice to government in its Annual Report, tabled in NSW Parliament.
149. SEPP 71 was amended as of 1 August 2003 (SEPP 71-Amendment No 2) to redefine the types of develo pment in sensitive coastal locations that are to be referred to the Department of Infrastructure, Planning and Natural Resources for comment by local councils. It also defined certain words and expressions to clarify what development is State significant development where the Minister is the consent authority.