Challenges seeking to invalidate State Environmental Planning Policies (SEPPs) are relatively rare and notoriously difficult to win.

Rare because often the wider implications of the particular policy do not become apparent until well after the SEPP is made and the statutory time bar for commencing judicial review proceedings has lapsed, plus it is difficult to win because the power to make SEPPs under the Environmental Planning and Assessment Act 1979 (EP&A Act) involve relatively few procedural steps and are very broad.

The Land and Environment Court has recently handed down its decision in Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2019] NSWLEC 2013[1].

That case concerned a challenge brought by a landowner in Tweed Heads South on the far North Coast of the State against the making of State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP).

The challenge essentially sought to strike down the Coastal Management SEPP on the basis that it mapped the landowner’s property (Property) as falling within the coastal wetlands and littoral rainforests area (CWLR Area) under the Coastal Management SEPP when, as a matter of objective fact, the land did not display the relevant characteristics of these types of ecological communities.

The essence of the landowner’s complaint was that the Coastal Management SEPP imposed an economic and practical inconvenience to developing the land.

Background

The Coastal Management Act 2016 (Coastal Management Act) and the Coastal Management SEPP came into force on 3 April 2018 and replaced the former Costal Protection Act 1979 and a raft of SEPPs including:

  • State Environmental Planning Policy No 14—Coastal Wetlands
  • State Environmental Planning Policy No 26—Littoral Rainforests
  • State Environmental Planning Policy No 71—Coastal Protection.

What the Coastal Management SEPP does

The Coastal Management SEPP, among other things, imposes a requirement for development consent for all development (including the clearing of native vegetation) on land mapped within a CWLR Area[2]. The SEPP also makes that development a designated development for the purpose of the EP&A Act[3], which requires the need for an environmental impact statement and gives rise to merit appeal rights to people who object to the proposed development. Also where development is carried out with a 100 metre-proximity area around areas mapped as a CWLR Area where development consent is required, additional considerations apply[4].

The consequence of land being mapped as within a CWLR Area is that it also must be mapped as Category 2 – Regulated Land under Part 5A of the Local Land Services Act 2013. This makes it an offence to clear native vegetation on the land unless it is undertaken in accordance with the Land Management (Native Vegetation) Code 2018, have an approval or the works are authorised pursuant to another relevant defence.

Grounds of challenge

This legal challenge was brought on the following grounds[5]:

  1. Grounds 1 and 2: The decision to make the Coastal Management SEPP was beyond power, or in the alternative, the decision to apply the Coastal Management SEPP to the Property was beyond power because the Coastal Management SEPP purported to identify the Property as falling within the CWLR Area where it did not display the hydrological and floristic characteristics of coastal wetlands and littoral rainforests
  2. Ground 3: The identification of the Property as falling within the CWLR Area was not reasonably and appropriately adapted to the achieving the objects of the Coastal Management Act and the aims of the Coastal Management SEPP
  3. Ground 5: The decision to identify the CWLR Area was invalid because the relevant map was not made or approved by the Governor, and was not before the Governor at the time the Governor determined to make the Coastal Management SEPP.

Grounds 1 and 2 – jurisdictional fact?

The key issue here was whether the identification of the hydrological and floristics characteristics of land mapped within the CWLR Area was a jurisdictional fact.

That is the SEPP could not be made to apply to the land unless it objectively displayed the hydrological and floristic characteristics of coastal wetlands and littoral rainforests.

Here, the landowner argued that it was open to the court to undertake this assessment and make a determination of objective fact. This was because s 6(1) of the Coastal Management Act provides that the power to identify land as being within the CWLR Area under the Coastal Management SEPP is restricted to land that “displays the hydrological and floristics characteristics of coastal wetlands and littoral rainforests”. This essentially makes the assessment of the characteristics of the land an essential precondition to the mapping exercise.

The landowner adduced a significant amount of expert evidence which supported his argument that the Property did not display the relevant characteristics and therefore, was improperly mapped as falling within the CWLR Area.

Conversely, the Minister submitted that the power of the Governor to make the Coastal Management SEPP did not depend upon the existence of a jurisdictional fact.

Rather, under the scheme for making a SEPP, it is the Governor acting on the advice of the Executive Council who bares the responsibility of determining which areas have the requisite characteristics to justify identification within the CWLR Area.

Further, the Minister said that s 6 of the Coastal Management Act should not be interpreted as imposing a restriction on the power to identify land as falling within the CWLR Area, but merely as a description of the characteristics that would make it appropriate for land to be identified as such.

Ultimately, in finding for the Minister, the court found that:

  • the identification of land as having the relevant hydrological and floristics characteristics (as required by s 6) is not a condition to the exercise of power to make the policy. Rather, it specifies factors which are to be adjudicated in the course of exercising the power to make a policy
  • the process of identifying and mapping land for this purpose is a substantial evaluative task and as such, it is highly unlikely that the legislature intended for the validity of the SEPP to be dependent upon an objective assessment of the characteristics of all of the land mapped
  • substantial inconvenience, including uncertainty, could arise if the Governor’s decisions are able to be reversed on the basis that the decision to approve the Coastal Management SEPP concerns a jurisdictional fact. Further inconvenience also arises if certain parcels of land are singled out as it impacts the coherent application of the scheme
  • the capacity for consultation (although it is a matter for the Minister’s discretion and is not a mandatory requirement) is indicative that the identification of land is a matter for the Minister, not the court.

Taking all of this into account, the court found that s 6(1) of the Coastal Management Act does not specify a jurisdictional fact that the court can consider. Accordingly, Grounds 1 and 2 of the challenge failed.

Ground 3 – contrary to objects and aims?

The landowner argued that the 100 metre-proximity area adopted in the Coastal Management SEPP was not reasonably and appropriately adapted to achieving the objectives of the Coastal Management Act and that a 40 metre-proximity area was more appropriate.

Subordinate legislation will be valid where it is capable of being considered to be reasonably proportionate to the end to be achieved[6]. A regulation will therefore need to be so lacking in reasonable proportionality as not to be a real exercise of power[7], in order for it to be struck down.

Here, the court found that there was nothing impermissible, disproportionate or unreasonable in identifying the land, including proximity areas spanning 100 metres. This is because the purpose of doing so brings development on that land within the planning controls imposed under the Coastal Management SEPP to ensure adverse impacts are appropriately managed.

Accordingly, Ground 3 was unsuccessful.

Ground 5 – failure to approve maps?

The landowner argued that the power to make the Coastal Management SEPP was reposed in the Governor and that the Minister was not entitled to exercise the Governor’s power by identifying the CWLR Area in the map created for the Coastal Management SEPP.

Given that no maps were before the Governor, either physically or digitally, when the Coastal Management SEPP was made, the landowner claimed that the Coastal Management SEPP was invalid.

Conversely, the Minister noted that there is nothing in the Coastal Management Act or the EP&A Act which constrains how a SEPP might identify an area as the CWLR Area. Rather, the only requirement is that the SEPP which is made by the Governor must identify such an area. Accordingly, given that the Coastal Management SEPP achieves the identification of the CWLR Area by adopting the map approved by the Minister, there is an effective identification of the CWLR Area and there is no error justifying the invalidation of the SEPP.

The Court again found in favour of the Minister, finding that the Coastal Management Act enables the Governor to make a SEPP which identifies land in maps approved by the Minister. This is supported by the fact that the Coastal Management SEPP also enables maps to be amended and replaced over time – a function carried out by the Minister via the making of an amended SEPP by the Governor.

Takeaways

The case demonstrates once again how difficult it is to successfully challenge a SEPP. It also does much to maintain the integrity of the policy by establishing that:

  • the sort of mapping that requires some kind of complex evaluative judgement like the mapping of wetland and littoral rainforests is not open for the court to review
  • past disturbance does not disqualify an area from being a coastal wetland or a littoral rainforest
  • the legislative approach of adopting a 100 metre proximity area is sound.

Now that the Coastal Management SEPP has survived this initial challenge and that further challenges of this kind cannot be brought because they are now out of time, the next test for the policy largely relates to how the new requirements, including the relevant considerations, play out in the context of particular merit appeals before the court.