A WA State Administrative Tribunal first: Consideration of sea level rise and State Coastal Planning Policy

Climate change considerations have been pivotal to a recent State Administrative Tribunal (SAT) decision in Western Australia: Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59. In summary, the SAT rejected a local structure plan, in the form proposed, on the basis that it did not have the appropriate setbacks to account for sea level rises anticipated by climate change. This decision is the first of its kind in Western Australia.

The decision

The proceedings involved a review of a Western Australian Planning Commission (WAPC) decision not to approve a structure plan for a residential subdivision along approximately 2.6 kilometres of coast line and covering over 830 hectares,  north of Two Rocks. Central to the matters in dispute was application of State Planning Policy 2.6 - State Coastal Planning Policy (SPP 2.6) and whether the developers should be required to cede additional land to be a coastal foreshore reserve if – over the next 100 years – it is:

• vulnerable to coastal processes; or
• not vulnerable to coastal processes, but would ensure conservation of the values, functions and uses of the current foreshore reserve at the end of that planning timeframe.

Allowance for the developer to retain and develop relevant land in the interim and until impacted by coastal processes was also considered.

SAT accepted that SPP 2.6 has made coastal processes over a planning timeframe of 100 years, a relevant consideration for planning decisions in WA. In applying SPP 2.6, SAT accepted expert evidence of coastal engineers predicting that the shoreline would moving up to between 145 to 171 metres landward over the planning timeframe. This acceptance was key to determining the extent of developable land.

SAT observed that the policy intent is that there should continue to be a sufficiently wide coastal foreshore reserve seaward of urban development and commensurate with what currently exists over the full duration of the planning timeframe. This is to ensure the current values, uses and functions of the coastal foreshore reserve are maintained. On this basis, and while acknowledging the significant economic impacts to the developer, SAT determined that the developer would be required to cede land necessary for the maintenance of the foreshore to the State (free of cost and without any payment of compensation), along with the land actually vulnerable to coastal processes, as a condition of subdivision or development approval.

However, SAT did accept it was appropriate for portions of this land to be retained and developed in an interim period and until becoming vulnerable to coastal processes. The condition was framed such that the specified ‘coastal nodes’ would not be required to be ceded to the State and incorporated into the foreshore reserve until the ‘Horizontal Shoreline Datum’ reaches 40 metres of that land. This means the developer would be able to progress non-permanent use and development of the coastal nodes (e.g. retail) until coastal process impacts were imminent.

Significance

The decision is significant as it accepts the science of climate change impact and risk management in the WA planning context. It also sets a precedent for the application of SPP 2.6. It is likely that the policy will not only impose development setbacks on land susceptible to future coastal processes, but also require retention of land commensurate to the existing coastal foreshore reserves and responsive to the values, functions and uses of these areas, over a 100 year planning timeframe. This may require a greater extent of land to be ceded to the State, potentially irrespective of previous planning decisions or cessions.

We recommend that developers with coastal landholdings give careful consideration to this decision, particularly in circumstances where local structure plan or subdivision approvals have not been obtained.

The full decision can be found here.

By Melanie Debenham, Senior Associate, and Moshe Phillips, Solicitor, Perth