Shifting sands: The implications of climate change and a changing coastline for private interests and public authorities in relation to waterfront land

Environmental and Planning Law Journal

Volumn 20, Issue 6, 2003, Pages 406-422

  Lipma, Zada ^a   Stoke, Robert ^a  

^a MACQUARIE UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 31144459884     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (125)

1. May P, Waterman P, Eliot I, Responding to Rising Seas and Climate Change: A Guide For Coastal Areas (Commonwealth of Australia, Department of the Environment, 1998) p 10.
2. Aplin G et al, Global Environmental Crises: An Australian Perspective (2nd ed, Oxford University Press, Melbourne, 1999) p 239.
3. CSIRO, Climate Change Projections for Australia (CSIRO, May 2001) pp 1-2.
4. IPCC, An Introduction to Simple Climate Models Used in the IPCC Second Assessment Report (1997).
5. May P, Waterman P, Eliot I, Responding to Rising Seas and Climate Change: A Guide For Coastal Areas (Commonwealth of Australia, Department of the Environment, 1998) p 10.
6. Aplin G et al, Global Environmental Crises: An Australian Perspective (2nd ed, Oxford University Press, Melbourne, 1999) p 232.
7. May P, Waterman P, Eliot I, Responding to Rising Seas and Climate Change: A Guide For Coastal Areas (Commonwealth of Australia, Department of the Environment, 1998) p 4.
8. Brooke B, "Beach Erosion", http://www.ozestuaries.org/indicators/Is_beach_erosion_f.html.
9. Bardach J, Coastal Zone Activities and Sea Level Rise (Working Paper No 11, Environment and Policy Institute, Honolulu, August 1988) p 6.
10. May P, Waterman P, Eliot I, Responding to Rising Seas and Climate Change: A Guide For Coastal Areas (Commonwealth of Australia, Department of the Environment, 1998) p 4.
11. May P, Waterman P, Eliot I, Responding to Rising Seas and Climate Change: A Guide For Coastal Areas (Commonwealth of Australia, Department of the Environment, 1998) p 10, preface.
12. IPCC, Summaries for Policymakers Working Group II: Impacts, Adaptation and Vulnerability-3.6. Human Settlements, Energy, and Industry (2001) http://www.grida.no/climate/ipcc_tar/wg2/005.htm.
13. Bardach J, Coastal Zone Activities and Sea Level Rise (Working Paper No 11, Environment and Policy Institute, Honolulu, August 1988) p 6.
14. Aplin G et al, Global Environmental Crises: An Australian Perspective (2nd ed, Oxford University Press, Melbourne, 1999) p 268.
15. Australian Greenhouse Office, Australia's Third National Communication on Climate Change: A Report under the United Nations Framework Convention on Climate Change (Australian Greenhouse Office, 2002) pp 100-101.
16. NSW Government, NSW Coastal Policy (1997) p 12.
17. Burke K, "No Worries, Mate", The Sydney Morning Herald (11 January 2003) http://www.smh.com.au/articles/2003/01/10/1041990095085.html.
18. NSW Property Council (2003) 17 (No 4) (Feb) Property Australia 3.
19. NSW Government, NSW Coastal Policy (1997) p 21.
20. This includes the new suburb of Casuarin a Beach near Tweed Heads, planned subdivisions at Catherine Hill Bay near Newcastle's southern suburbs, and a large-scale housing release at Sandon Point near Wollongong.
21. Gifford v Yarborough (Lord) (1828) 130 ER 1023.
22. Attorney General v Chambers (1854) 43 ER 486.
23. Verrall v Nott (1939) 39 SR (NSW) 89 at 99.
24. Applications for re-determinations may be made to the Minister administering the Crown Lands Act 1989 (NSW) by a surveyor under cl 58 to the Surveying Regulation 2001 (NSW).
25. Real Property Act 1900 (NSW), s 12.
26. Scratton v Brown (1825) 107 ER 1140.
27. Pascale v Sutherland Shire Council (1995) 87 LGERA 30.
28. Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 at 612 per Lord Shaw of Dunfermline.
29. Byrne, quoted in Davison P et al, Pittwater Waterway Estuary Data Compilation Study (Australian Water and Coastal Studies Pty Ltd, Report 95/26, February 1996) p 16.
30. Pittwater Library Service, Palm Beach, http://www.pittlink.net/ls/Palm_Beach/palm_beach.html
31. Davison P et al, Pittwater Waterway Estuary Data Compilation Study (Australian Water and Coastal Studies Pty Ltd, Report 95/26, February 1996) p 17.
32. Davison P et al, Pittwater Waterway Estuary Data Compilation Study (Australian Water and Coastal Studies Pty Ltd, Report 95/26, February 1996) p 32.
33. Ceresa M and Tom E, "Private Hands Seek Shifting Sands", The Sydney Morning Herald (9 July 1994).
34. "Residents Protest Over Beach Land Grab", Pittwater Life (August 1996) p 26.
35. Southern Centre of Theosophy Incorporated v South Australia (1979) 21 SASR 399 at 412.
36. Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development, endorsed by the Council of Australian Governments, December 1992, http://ea.gov.au/esd/national/nsesd/strategy/intro.html#WIESD.
37. Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development, endorsed by the Council of Australian Governments, December 1992, http://ea.gov.au/esd/national/nsesd/strategy/intro.html#WIESD.
38. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 143.
39. Thom B, "Changes to the Coastal Protection Act" (paper presented at the Cumberland Group Development Seminar 2003) http://www.cumberlandgroup.com.au/Development-Seminar-2003-Session-1.htm#Thom.
40. The Coastal Council is established under s 8 of the Coastal Protection Act 1979 (NSW). It is subject to the control and direction of the Minister: Coastal Protection Act 1979, s 27(2).
41. Coastal Protection Act 1979, s 55N.
42. Schedule 2 of the Bill in its original form proposed to enable such easements through the insertion of a new s 58A in the Crown Lands Act 1989.
43. The Hon Henry Tsang, Parliamentary Debates (NSW Legislative Council, 23 September 2002) p 5314.
44. Peatling S, "Backflip as Beaches Bill is Passed", The Sydney Morning Herald (10 July 2003).
45. NSW Sea Kayak Association, "State Government Protects Prime Coastal Site" (Press Release) http://www.nswseakayaker.asn.au/mag/38/press-rep.
46. In March 2003, the NSW Government announced the creation of a $11.2 million land acquisition fund: The Newsletter of the Sydney Coastal Councils Group, Edition 31 (April 2003) http://www.sydneycoastalcouncils.com.au/newsletters/april2003.htm. While this may go some way to land acquisitions in regional areas, it is not enough to make significant acquisitions of coastal land in the greater metropolitan region.
47. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 113.
48. Bird ECF, Shoreline Changes During the Last Century, Pap Press 23 IGU Moscow (International Geographic Union, 1976)
49. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 113.
50. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 140.
51. Evans P, "Taking a Long Line-Risk and Reality in Coastal Hazard Assessment" (paper presented at the 6th Annual NSW Coastal Conference, 12-14 November 1996) p 11.
52. The high value of this land was realised in March 2003 when the property was sold for $2.35 million: Chancellor J, "Prices Stay Buoyant Despite Shadow of War", The Sydney Morning Herald (24 March 2003).
53. Scott v Byron Council was analysed in Pearlman M, "The Land and Environment Court-What's Happening Now?" (Keynote Address, NSW Coastal Conference, 14 November 2001) p 3.
54. Scott v Byron Council at 20.
55. For example, insertion of s 56A into the Coastal Protection Act 1979 as part of this reform package provides that the Land and Environment Court, in proceedings under the Act, "may order a person to remove or clean up material dumped during a beach erosion event".
56. Such as Pyrenees Shire Council v Day (1998) 192 CLR 330
57. Romeo v Conservation Commission (NT) (1998) 192 CLR 431
58. Perre v Apand Pty Ltd (1999) 198 CLR 180
59. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
60. Brodie v Singleton Shire Council (2001) 206 CLR 512.
61. See Perre v Apand Pty Ltd (1999) 198 CLR 180
62. It was unanimously rejected by the High Court in Sullivan v Moody (2001) 75 ALJR 1570 because of concerns that the third stage of the test would introduce a discretionary judgment into judicial decision-making.
63. Armidale City Council v Alex Finlayson Pty Ltd (1999) 104 LGERA 9.
64. See also Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
65. Brodie v Singleton Shire Council (2001) 206 CLR 512.
66. Per Gleeson CJ in Graham Barclay Oysters P/L v Ryan; Ryan v Great Lakes Council
67. NSW v Ryan (2002) 77 ALJR at 203-204 (hereinafter Ryan v Great Lakes Council).
68. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
69. Ryan v Great Lakes Council (1997) 78 FCR 309.
70. Ryan v Great Lakes Council (1999) 102 LGERA 123.
71. Gleeson CJ, Gaudron, Gummow and Hayne (joint judgment), Kirby, Callinan JJ.
72. Ryan v Great Lakes Council (2002) 77 ALJR 183 at 212.
73. See further Swanton J and McDonald B, "Liability in Negligence for Pure Economic Loss" in (2000) 74 ALJ 17.
74. Gleeson CJ based his decision on a construction of the statutory powers conferred on the Council. His Honour found that on a proper construction, these powers were conferred for the benefit of the public generally and not for the protection of a specific class of persons. This distinguished it from Pyrenees Shire Council v Day (1998) 192 CLR 330, where there "was a clearly identified cause of harm, specific action or inaction on the part of the council, and coincidence between the action which was necessary to prevent the fire, the powers given to the Council and the purpose for which they were given":
75. Ryan v Great Lakes Council (2002) 77 ALJR 183 at 192. Kirby J indicated his preference for the Caparo test on the ground that it had been adopted in the major common law legal systems. However, since it had been rejected by a majority of the High Court, he proposed another test, namely, that "a duty of care will be imposed when it is reasonable in all the circumstances to do so": Ryan at 230. Callinan J undertook an extensive review of the authorities and favoured a test which requires: "that there be something in all of the circumstances, including of course the terms of the conferral of the powers, which requires that the power be coupled with a duty; or, as Hayne JJ put it in Brodie, "[something in] the whole range of circumstances relevant upon a question of statutory interpretation" or as Lord Hoffmann put it in Stovin v Wise, irrationality in an abstention from exercising the power or some other exceptional matter, or indicator of an intention to permit a person to sue. Unless these conditions are satisfied, in my opinion no relevant duty of care will arise": Ryan at 251.
76. Ryan v Great Lakes Council (2002) 77 ALJR 183 at 223.
77. Sutherland Shire Council v Heyman (1985) 157 CLR 424
78. Alec Finlayson Pty Ltd v Armidale City Council (1994) 51 FCR 378.
79. Pyrenees Shire Council v Day (1998) 192 CLR 330 at 393-394
80. Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263
81. Stovin v Wise [1996] AC 923 at 951-953.
82. Ryan v Great Lakes Council (2002) 77 ALJR 183 at 186.
83. Ryan v Great Lakes Council (2002) 77 ALJR 183 at 217.
84. Ryan v Great Lakes Council (2002) 77 ALJR 183 at 188.
85. See Puntoriero v Water Administration Ministerial Corporation (1999) 104 LGERA 419, for example, where a clause exempting the Corporation from any action for loss or damage "suffered as consequence of the exercise of a function" was held not to excuse the negligence of the respondent in adding chemicals to water used for irrigation by the plaintiffs, leading to the destruction of their potato crops.
86. This refers to s 149(2) of the Environmental Planning and Assessment Act 1979.
87. This was an appeal against the judgment in Lawrence v Kempsey Shire Council (1995) 87 LGERA 49.
88. See also Forbes Shire Council v Pace [2002] NSWSC 966 (19 Nov 2002).
89. See Romano P, Grech P and Bewsher D, "Minimising Legal Liability Risks When Disseminating Flood Data" (unpublished paper, 39th Annual Floodplain Management Conference, May 1999) http://www.bewsher.com.au/PAPERS/CNF25-3.HTM.
90. "Public authorities" are defined in s 41 to include a council, a Crown or government department, a public health organization, a public or local authority constituted under an Act or any person or body prescribed by regulation.
91. Civil Liability Act 2002, s 40.
92. Civil Liability Act 2002, s 42.
93. Civil Liability Act 2002, s 45.
94. Civil Liability Act 2002, s 43(2).
95. Civil Liability Act 2002, s 5D.
96. Civil Liability Act 2002, s 5G(1).
97. Civil Liability Act 2002, s 5H.
98. Civil Liability Act 2002, s 51.
99. Short A, Beaches of the New South Wales Coast (Australian Beach Safety and Management Program, 1993) p 203.
100. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 135.
101. Short A, Beaches of the New South Wales Coast (Australian Beach Safety and Management Program, 1993) pp 203-204.
102. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 136.
103. Davison P et al, Pittwater Waterway Estuary Data Compilation Study (Australian Water and Coastal Studies Pty Ltd, Report 95/26, February 1996) p 25.
104. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 136.
105. Bardach J, Coastal Zone Activities and Sea Level Rise (Working Paper No 11, Environment and Policy Institute, Honolulu, August 1988) p 9.
106. See Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) pp. 115-120.
107. Johnson D, "Mission Impossible: Implementing a Coastal Management Solution for Collaroy /Narrabeen Beaches" (paper presented at the 10th NSW Coastal Conference, Yamba, 2000).
108. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 131.
109. Johnson D, "Mission Impossible: Implementing a Coastal Management Solution for Collaroy /Narrabeen Beaches" (paper presented at the 10th NSW Coastal Conference, Yamba, 2000), p 4.
110. Fosberg v Warringah Shire Council (1922) 6 LGR 80.
111. Chapman, Geary, Roy and Thom, Coastal Evolution and Coastal Erosion in New South Wales (Coastal Council of NSW, 1982) p 144.
112. Egger v Gosford City Council (1988) 67 LGRA 304.
113. NSW Government, NSW Coastline Management Manual (September 1990) para 2.1.
114. See Collaroy/Narrabeen Beach Nourishment Investigations (Warringah Council, 1993). However, the proposal to construct a groyne has been dropped following community opposition: Johnson D, "Mission Impossible: Implementing a Coastal Management Solution for Collaroy /Narrabeen Beaches" (paper presented at the 10th NSW Coastal Conference, Yamba, 2000), p 4.
115. Johnson D, "Mission Impossible: Implementing a Coastal Management Solution for Collaroy /Narrabeen Beaches" (paper presented at the 10th NSW Coastal Conference, Yamba, 2000), p 4.
116. Smith D and O'Rourke C, "Wall of Humanity Lines Up Against Councils", The Sydney Morning Herald (18 November 2002).
117. Johnson D, "Mission Impossible: Implementing a Coastal Management Solution for Collaroy /Narrabeen Beaches" (paper presented at the 10th NSW Coastal Conference, Yamba, 2000), p 4.
118. Warringah Council v Franks [1999] NSWLEC 65
119. Manly Hydraulics Laboratory, Collaroy/Narrabeen Seawall Survey and Assessment (NSW Department of Public Works & Services in association with Coffey Partners International Pty Ltd, prepared for Warringah Council).
120. The Coastal Package was announced by the Deputy Premier on 26 June 2001. It incorporates a $11.7 million commitment to undertake a review of coastal land management, including a review of the Coastal Policy, the introduction of a State Environmental Planning Policy (SEPP 71) regarding coastal protection, and a comprehensive assessment of the NSW coastline: see Coastal Council News Special Edition, "Coastal Protection Package", June 2001): http://www.coastalcouncil.nsw.gov.au/documents/ccn/CCNPACKAGE.PDF
121. Smith D and O'Rourke C, "Wall of Humanity Lines Up Against Councils", The Sydney Morning Herald (18 November 2002).
122. Davies A, "Tide Turns Against Beachfront Palaces", The Sydney Morning Herald (29 October 2002).
123. See further Gemmell G and Sun D, "Liability of Public Authorities" (2003) 9 LGLJ 21.
124. Gibson S, "Cappuccino by the Sea", Manly Daily (16 October 2003) p 5.
125. Lectures on the Philosophy of World History: Introduction (1830), translated by Nisbet HB (1975), Introduction.