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1
Coastal Protection and Management
COASTAL PROTECTION AND
MANAGEMENT BILL 1995
EXPLANATORY NOTES
The Coastal Protection and Management Bill has been drafted to be
consistent with current legislative practice and in modern language. As a
consequence particular sections, clauses and sub-clauses require little or no
specific further explanation and in these Explanatory Notes those parts may
be repeated or summarised in general terms only.
GENERAL OUTLINE
The Bill's Short Title
Coastal Protection and Management Act 1995.
Reasons for the Bill
The State Government's Coastal Protection Strategy Green Paper
released in March 1991 focused attention on the need for management and
protection of the coastal zone. The Green Paper proposed a strategy with the
following key elements:
(a) reform of the existing legislation;
(b) determination of coastal management policy objectives and
guidelines;
(c) preparation of a State-wide coastal management plan; and
(d) preparation and implementation of regional coastal management
plans.
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Coastal Protection and Management
The proposed strategy was developed after considering coastal
management systems throughout Australia, and related Queensland
Government initiatives.
A Coastal Protection Bill was prepared and released as an exposure draft
for public consultation and comment. The public consultative process
identified a range of issues which arose from written submissions, matters
raised at public meetings and comments made at meetings with key
stakeholders.
As a consequence of this consultative process revised drafting
instructions were prepared and considered by Cabinet in November 1994.
These were subsequently referred to the Office of Parliamentary Counsel
for the preparation of the final draft version of the Bill.
Objectives of the Legislation
The object of the legislation is to protect and manage Queensland's
coastal zone while allowing for development that improves the total quality
of life, now and in the future, in a way that maintains the ecological
processes on which life depends.
This is to be achieved by an integrated approach to coastal planning and
development control that is consistent with the above stated objective and
with the principles of ecologically sustainable development. Other
legislation and planning regimes (for example Integrated Catchment
Management) will be used where practical.
The legislation will establish a Coastal Protection Advisory Council
(CPAC) to promote the objectives of the Act and advise the Minister on its
implementation.
The way in which the policy objectives are to be achieved in the Bill
This integrated approach to coastal planning and development is achieved
through:
(a) Coastal Planning
(i) The preparation of a State coastal management plan.
The State plan may include: a statement on the principles of
coastal management; policies of State significance; the
identification of areas of State coastal conservation
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Coastal Protection and Management
significance and strategies for the protection of these areas;
guidelines for the implementation of ecologically sustainable
development of the coastal zone and its resources; and
resource maps and information.
(ii) The preparation of regional coastal management plans.
Regional coastal management plans will cover the entire
coastal zone. Above High Water Mark they will interact with
and guide local government schemes. Below High Water
Mark they will extend offshore to the limit of Queensland
territorial waters (approximately five kilometres). In these
marine areas they will provide the strategic framework to
integrate planning across the High Water Mark boundary
and will incorporate Marine Parks as a primary management
tool.
Regional plans will implement the policies of the State plan
at the regional/local level and can involve strategies and
policies of particular relevance to that section of the coast
which is important given the wide diversity in coastal
geographic features and coastal processes throughout the
State. In developing regional plans, local government
planning schemes and State Government planning strategies
will be integrated, thus ensuring complementary land uses
between adjacent areas.
It is the intention of the State Government that the provisions
of regional coastal management plans will be translated into
appropriate provisions in local government planning
schemes. Inconsistencies between a regional coastal
management plan and a local government planning scheme
should be resolved through consultation with local
government. However, the State Government will have the
power to amend planning schemes where this is necessary
to meet its requirement of practical consistency of these
schemes with regional coastal management plans. This
amendment power is limited to the amendment of planning
schemes prepared under the existing Local Government
(Planning and Environment) Act 1990 and will not apply to
any schemes prepared under the proposed Planning,
Environment and Development Assessment Bill.
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Coastal Protection and Management
Regional coastal management plans may also review and/or
declare additions to control districts which define the area of
the coast in which specific approval provisions for coastal
management will apply.
Community participation in the regional planning process
will be encouraged by the use of regional consultative
groups to facilitate the direct participation of relevant
community and interest groups during the preparation of the
plans.
(iii) The administration of State and regional coastal management
plans
In administering these provisions, State and regional coastal
management plans will be prepared as documents that are
legally binding in control districts. Outside control districts,
coastal management plans will be prepared in such a way
that they are policy documents. In local government areas
outside control districts, they will operate in the same
manner as State Planning Policies to which local
governments must have regard when making planning
decisions or assessing development applications.
A head of power will also be incorporated into the Planning,
Environment and Development Assessment legislation to
ensure coastal management plans outside control districts are
treated the same way as State Planning Policies under that
legislation.
(iv) Regional consultative groups.
Regional consultative groups will be established to help
during the preparation of a regional coastal management plan
and advise the Minister on issues and submissions on
coastal management in the region. The regional consultative
groups must include representatives from local government,
tourism, conservation, industry, and Aboriginal and Torres
Strait Islander interests. Representatives may also be sought
from relevant regional State government agencies and from
the commercial and recreational fisheries industry.
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Coastal Protection and Management
Wherever practicable, to facilitate the integration of planning
initiatives carried out by State Government departments and
agencies, regional consultative groups established under the
Act would be linked to any existing Regional Planning
Advisory Groups or forums established under the auspices
of the Department of Housing, Local Government and
Planning.
(b) Coastal Development Control
(i) Approval provisions
Existing separate approval provisions of the current Beach
Protection Act 1968, Canals Act 1958, and those provisions
of the Harbours Act 1955 dealing with works in tidal water,
will be consolidated into a single and integrated approval
process under the proposed Planning, Environment and
Development Assessment Bill in accordance with the
Government's policy on the Integrated Development
Assessment System (IDAS). Under the Planning,
Environment and Development Assessment Bill, for a
development in the coastal zone, the Department
administering the Coastal Protection and Management Bill
will be a concurrence agency or development manager
depending on the circumstances of the particular
development.
It is intended that the Department of Environment and
Heritage will be development manager for development
applications involving works below high water mark. The
Department will be a concurrence agency for land based
development within a control district.
Under the Planning, Environment and Development
Assessment Bill, proposed developments will be assessed
against planning criteria and the objectives of the proposed
Act. As a development manager or concurrence agency the
Department of Environment and Heritage will take account
of the objects of the Coastal Protection and Management
Bill in assessing the development application. This will
involve taking account of all relevant coastal, social,
environmental and any other relevant parameters to ensure
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Coastal Protection and Management
that development complies with the ecologically sustainable
development of the coastal zone and its resources.
In the interim period between proclamation of the Coastal
Protection and Management Bill and the proclamation of the
Planning, Environment and Development Assessment Bill, it
will be necessary that the Beach Protection Act 1968,
Canals Act 1958 and those provisions of the Harbours Act
1955 dealing with works below high water mark continue as
these Acts presently contain approval provisions relating to
coastal development. These latter Acts will be repealed upon
the proclamation of the Planning, Environment and
Development Assessment Bill.
(ii) Land Surrender
To enable the Government's policy on coastal management
to be implemented as soon as practicable, the Coastal
Protection and Management Bill contains consequential
amendments (refer Chapter 5, Part 4) to the Beach
Protection Act 1968. One of these amendments will allow
the Governor in Council to impose a land surrender
condition on any development application involving the
rezoning and/or the subdivision of land which is susceptible
to coastal erosion (termed "erosion prone area" in the Beach
Protection Act 1968). This amendment is consistent with the
Government's policy of maintaining public access to the
coast, and protecting vulnerable coastal land from
inappropriate development.
It is intended that all the land surrender provisions of the
Beach Protection Act 1968 (including the consequential
amendments included in the Coastal Protection and
Management Bill) will be incorporated into the Coastal
Protection and Management Act upon the proclamation of
the Planning, Environment and Development Assessment
Bill. This intended future amendment to the Coastal
Protection and Management Act will provide a concurrence
power to the Department of Environment and Heritage
enabling it to require a surrender of land to the State for land
either wholly or partially within a control district. The land
surrender condition will be non-appealable and not subject to
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Coastal Protection and Management
compensation. The land surrender condition will not apply to
`as of right' or exempt development but deals with those
types of special development applications where the owner
of land is seeking increased development rights over the
land.
(iii) The declaration of control districts
Under the Coastal Protection and Management Bill, control
districts will be declared over areas of the coast which
require specific development controls and special protection
and management to provide a mechanism for the regulation
of coastal development.
Control districts will extend the criteria presently adopted in
the Beach Protection Act 1968 for the declaration of Coastal
Management Control Districts. Criteria which can be utilised
when assessing these new control districts can include; the
erosion potential of the foreshore, the amenity and
preservation of the coastal zone, public access rights,
Aboriginal and Torres Strait Islander rights and interests,
and planning and development management of the area in
the control district.
The Bill also provides that a coastal building line may be
established as part of a declared control district. To ensure
that development along the coast is located in a consistent
alignment and does not compromise future coastal
management options for the area, no structure which would
require a building approval from the local government for
the area can be built seaward of the coastal building line.
As part of the administrative process, all landowners
affected by a control district declared under this Bill will be
notified in writing at the time of the declaration. After
declaration of the control district it will be the responsibility
of any subsequent owner to determine whether or not the
land in question is affected by a control district.
(iv) Compensation
The compensation provisions of the Coastal Protection and
Management Bill relate to a prohibition of an existing lawful
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Coastal Protection and Management
use by the declaration of a coastal management plan or a
control district. Compensation is provided where such a
declaration removes an existing lawful use applicable to `as
of right' development under a local government town
planning scheme.
Alternatives to the Bill
The policy objectives can only be achieved by a new Act of Parliament.
Assessment of the administrative cost to Government
By comparison with the costs of administrating the existing legislation,
there are expected to be some additional annual costs as a result of the
implementation of the Coastal Protection and Management Bill. Items
requiring additional funding include:
· administration of the Coastal Protection Advisory Council;
· the establishment of Regional Consultative Groups throughout
the State;
· resource data collection for coastal management plans;
· additional planning officers in each of the four Departmental
coastal regions for the preparation of regional coastal
management plans;
· review and delineation of control districts; and
· State of the Coast reporting.
As part of the 1995/96 budget process the Government allocated an
additional $2.5 m for coastal management to be used to fund the
implementation of the Government's Coastal Protection Strategy. Of this,
$1 m was allocated to the implementation of the Coastal Protection and
Management Bill in the policy document: `Reclaiming the Coast' and will
be used to fund the above items.
Additional Commonwealth funding through the proposed Coastal Action
Program initiative will also be available from 1995 for three years to assist
in the implementation of the Coastal Protection and Management Bill. A
draft Memorandum of Understanding between the Commonwealth, the
State of Queensland, and the Local Government Association of Queensland
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Coastal Protection and Management
is being prepared so that the intergovernmental aspects of the Coastal
Action Program can be implemented. One component of the Program is
Coastcare which will provide opportunities for community groups to
participate in coastal management ranging from an involvement in local area
coastal plans to the implementation of projects on the coast. It is expected
that the Commonwealth will provide $440,000 for Coastcare in 1995/96
and at least $1 m in each of the two subsequent years. Other components of
the Coastal Action Program include initiatives to deal with local water
quality management planning, strategic coastal planning and capacity
building.
The other additional liability that may arise is that of compensation.
However, the enacting of the Coastal Protection and Management Bill will
not result in any immediate compensation liabilities for the State. Limited
compensation provisions apply where owners of land have their existing
rights changed or prohibited by the implementation of a coastal
management plan or a control district (analogous to a down-zoning).
Therefore, if applicable, compensation costs (which would be paid by the
State) would be considered at the time of the approval of the plan or control
district.
Consistency with Fundamental Legislative Principles
The Coastal Protection and Management Bill is consistent with
fundamental legislative principles as defined in the Legislative Standards
Act 1992. This consistency includes the provision in the Bill for an
amendment to the Beach Protection Act 1968 to provide for the surrender,
without compensation, of land within a control district to the State. A land
surrender condition may only be placed on a development approval where
an application is for rezoning, subdivision or the consent of a Local
Government under a Town planning Scheme, and relates to land either
wholly of partly within a Coastal Management Control District or an
erosion prone area. The land surrender condition is only applicable when a
landowner seeks approval to increase their existing development rights. The
provision for land surrender does not apply for an `as-of right' activity and
therefore the land surrender provision in the Bill is not considered to be a
`compulsory acquisition of property' in the context that this term is used in
the Legislative Standards Act 1992.
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Coastal Protection and Management
Consultation
The draft version of the Coastal Protection Bill approved by Cabinet on
15 June 1993 for public consultation was extensively distributed throughout
coastal areas of Queensland. Public meetings were held at major coastal
regional centres throughout the State with additional meetings and
workshops held for local government, regional officers of relevant State
Government Departments and with those organisations with a direct interest
in management issues relevant to the coastal zone.
Further consultation was carried out with key stakeholders which
comprised the following:
· Departments
-- Transport
-- Primary Industries
-- Lands
-- Housing, Local Government and Planning
-- Premier, Economic and Trade Development
-- Business, Industry and Regional Development
-- Tourism, Sport and Racing
· Conservation Groups
-- Australian Littoral Society
-- Wildlife Preservation Society
-- Queensland Conservation Council
· Industry/Local Government
-- Building Owners and Managers Association (BOMA)
-- Ports Corporation
-- Queensland Commercial Fishermen's Organisation
-- Coastal Management Committee of the Queensland
Environmental Law Association
-- Local Government Association of Queensland
-- Urban Development Institute of Australia
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Coastal Protection and Management
In addition to discussions held during the three month public consultation
phase with relevant organisations representing Aboriginal and Torres Strait
Islander interests, a second round of consultation with relevant groups of
the Aboriginal community was carried out during April/June 1994. During
this period workshops were held in Brisbane and regional centres (including
a two day North Queensland consultation workshop in Kuranda for all
Aboriginal Communities on Cape York Peninsula).
A copy of the draft Coastal Protection and Management Bill was
referred to the Litigation Reform Commission for comment. The
Commission has advised that it does not wish to make any comment about
the Coastal Protection and Management Bill as it relates to the
Commission's functions set out in Section 75(1) of the Supreme Court of
Queensland Act 1991. However, the Commission did note for further
consideration the provisions in the Coastal Protection and Management
Bill dealing with the forfeiture of property for non-compliance with a notice
where the name of the relevant person is not known. Discussions with the
Office of the Parliamentary Counsel indicated that there was no practicable
alternative to the provision already contained in the Coastal Protection and
Management Bill requiring advertising in the local newspaper or displaying
the notice in a prominent position on the land. To provide additional
safeguards to the person concerned, the Coastal Protection and
Management Bill now provides a longer period for those cases where the
name of the relevant person is not known before the State can legally
proceed with forfeiture of the property. This provides a further period for
the person concerned to become aware of the pending action.
NOTES ON PROVISIONS
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
Clause 1 states the short title of the Bill.
Clause 2 provides for the commencement date of the Bill.
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Coastal Protection and Management
PART 2--OBJECT OF BILL
Clause 3 outlines the object of the Bill. The Bill provides for the
protection, conservation, rehabilitation and management of the coast and
requires that any use of coastal resources is undertaken in an ecologically
sustainable manner.
The object set out in Clause 3(b) of the Bill requires that use of the
coastal zone has regard to the goal, core objectives and guiding principles of
the National Strategy for Ecologically Sustainable Development. One of the
guiding principles of the National Strategy is:
"where there are threats of serious or irreversible environmental
damage, lack of full scientific certainty should not be used as a
reason for postponing measures to prevent environmental
degradation"
The Intergovernmental Agreement on the Environment (May 1992)
endorsed by the Heads of Government of the Commonwealth, State and
Territories of Australia, and representatives of Local Government in
Australia, defines this guiding principle as the `precautionary principle'.
For the purposes of the Coastal Protection and Management Bill, the
precautionary principle is taken to have been applied when, wherever
practicable, decisions are based on:
(a) careful evaluation to avoid serious or irreversible damage to the
environment; and
(b) an assessment of the risk-weighted consequences of the various
options.
Clause 4 outlines how coastal management is to be achieved. Coastal
management requires that regard be had to: the preparation of coastal
management plans; the declaration of control districts within the coastal
zone for areas requiring special management and development controls; and
other legislation which regulates development in the coastal zone.
Key areas requiring special management and development controls are
selected using criteria based on the Coastal Protection Strategy Green Paper
and may include areas of significant ecological, cultural, heritage or scenic
values, and areas of importance for the maintenance of coastal processes.
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Coastal Protection and Management
PART 3--INTERPRETATION
Division 1--Standard definitions
Clause 5 provides that the terms and phrases used in the Bill are defined
in the Dictionary which is a schedule of the Bill. All definitions must be
interpreted in their context. Terms not defined have either the meaning given
to them by the Acts Interpretation Act 1954, or by the Macquarie
Dictionary.
Division 2--Key definitions
Clause 6 defines `coast'.
Clause 7 defines `coastal management'.
Clause 8 defines `coastal resources' and should be read in conjunction
with the definitions of `cultural resources' and `natural resources' in
Schedule 2 (Dictionary).
Clause 9 provides the definition of `coastal waters' which are
Queensland waters to the limit of the highest astronomical tide. The Acts
Interpretation Act 1954 defines Queensland waters.
Clause 10 defines `coastal wetlands'. A component of `coastal wetlands'
is `tidal wetlands' which includes mangroves, saltmarshes, mudflats,
sandflats and sandbars, seagrass beds and shallow channels.
Clause 11 defines `coastal zone'.
Clause 12 defines `ecologically sustainable development' as being that
given by the National Strategy for Ecologically Sustainable Development as
described by the IGAE.
General
The term `coast' means many different things depending on the context
in which it is used. It can be the beach, all areas east of the Great Dividing
Range or locations associated with the sea. These examples demonstrate
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Coastal Protection and Management
that the coast is not just where the sea meets the land (this is the foreshore).
Coastal management focuses on the coast; however activities which occur
in areas outside the coast can affect the coast and therefore need to be
considered in coastal management. This wider area is referred to in the Bill
as the coastal zone.
The coast is defined in Clause 6 as `all areas within or neighbouring the
foreshore'. Neighbouring means near; therefore the definition of the coast is
not prescriptive. Areas will be considered to be near the foreshore when
there is a clear link with the foreshore. On the seaward side this includes all
Queensland coastal waters. On the landward side this includes areas
influenced by sea water or salt spray, the movement of sand or the drainage
of waters into tidal areas.
Therefore the following areas are covered by the definition of `coast'
under the Bill:
· communities comprised of salt-tolerant vegetation eg mangroves,
tidal marshes, coastal casuarinas, coastal banksia, coastal heath;
· dune systems;
· coastal wetlands;
· rivers and creeks subject to tidal influence up to the highest
astronomical tide; and
· any other area clearly affected by a coastal process.
Areas of the coast that require specific controls over development or
require special management will be more precisely defined by the
boundaries of regional plans and control districts. A control district is the
administrative area in which specific development controls can apply.
Control district boundaries will be declared over areas within the coast
through regional plans, by regulation, or by the Minister as a notice.
Therefore the coast could extend further inland than control districts. Clause
48 of the Bill provides the areal limits to where control districts can be
declared.
The coastal zone is defined in Clause 11 as `coastal waters and all areas
to the landward side of coastal waters in which there are physical features,
ecological or natural processes or human activities that affect, or potentially
affect, the coast or coastal resource'. Coastal management can occur
throughout the coastal zone therefore permitting the management of the
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Coastal Protection and Management
source of any impact on the coast. For example, a proposal to divert river
water might:
· affect coastal wetlands and the composition of their species
significantly;
· affect flushing of the river mouth; and
· interfere with the availability of sand for longshore drift.
This would alter the coast and therefore such impacts would need to be
considered in decision making.
Division 3--General
Clause 13 explains the context of `Aboriginal people and Torres Strait
Islanders particularly concerned with land'.
PART 4--APPLICATION OF ACT
Clause 14 provides for the Bill to apply to all persons, the State, and
where possible the Commonwealth and other States. This ensures that the
Government has the same obligations as the rest of the community.
CHAPTER 2--COASTAL MANAGEMENT
PART 1--ADVISORY BODIES
Division 1--Coastal Protection Advisory Council
Clause 15 provides for the establishment of a Coastal Protection
Advisory Council (CPAC).
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Coastal Protection and Management
Clause 16 lists the functions of the Coastal Protection Advisory Council.
The Council provides advice to the Minister concerning a wide range of
coastal management issues. Among other things the Advisory Council is to
monitor the integration of coastal zone management in Queensland being
carried out by a range of State Government departments, agencies and local
government. The Council is also to liaise with and have regard to
Aboriginal and Torres Strait Islander peoples as well as the interests of all
other landowners.
Clause 17 lists the membership of the Coastal Protection Advisory
Council, which will consist of the chief executive and eleven other members
appointed by the Minister.
The composition of the Coastal Protection Advisory Council is intended
to be:
· Chairperson, Director-General of Department of Environment
and Heritage;
· 3 representatives from State Government Departments;
· 3 representatives from local government; and
· 5 community representatives which would be expected to cover
the areas of Aboriginal and Torres Strait Islander Interests,
conservation, fishing, industry and tourism interests.
Clause 18 provides for the chief executive of the Department
administering the Bill to be the chairperson of the Coastal Protection
Advisory Council.
Division 2--Regional consultative groups
Clause 19 provides that the Minister must establish a regional
consultative group to assist during the preparation of a regional coastal
management plan. The Minister considers the advice of these groups when
reviewing submissions on regional coastal management plans. When the
plan was finalised and approved by the Governor in Council, the regional
consultative group will have a continuing role of monitoring the
implementation of the plan. It would be expected that this role would be
performed by having the regional consultative group undertake an annual
review of the plan's achievements.
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Coastal Protection and Management
Regional consultative groups are local groups formed for the purpose of
advising the Minister and making recommendations on issues,
management strategies and areas requiring special coastal management for
that area covered by the plan. Regional consultative groups are independent
of CPAC which performs similar functions on a state wide basis.
Wherever practicable, to facilitate the integration of planning initiatives
carried out by State Government departments and agencies, regional
consultative groups established under the Bill would be linked to any
existing Regional Planning Advisory Groups or forums established under
the auspices of the Department of Housing, Local Government and
Planning.
Clause 20 states the functions of a regional consultative group and
includes a directive that community input is to be sought during the
preparation of the plan.
Clause 21 provides that a regional consultative group must include
representation from local government, tourism, conservation, industry and
Aboriginal and Torres Strait Islander interests. Representatives may also be
sought from relevant regional State government agencies and from the
commercial and recreational fisheries industry. The representation from
local government would consist of one representative from each local
government affected by the plan.
Clause 22 states the Minister is to nominate the chairperson of a regional
consultative group.
Division 3--General
Clause 23 provides for members of the Coastal Protection Advisory
Council or a regional consultative group to be paid fees and allowances.
Clause 24 provides that the chief executive of the Department
administering the Bill can provide Departmental services to the Coastal
Protection Advisory Council or a regional consultative group to enable these
bodies to perform their functions.
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Coastal Protection and Management
PART 2--COASTAL MANAGEMENT PLANS
Division 1--State coastal management plan
Clause 25 provides that a State coastal management plan (the `State
plan') must be prepared.
Clause 26 requires the State plan to show how the coastal zone will be
protected and managed. The State plan can include principles, policies or
maps and will include policies and assessment criteria for development
approvals in control districts. The State plan can cover any matter for which
regulations could be made under this Bill.
Clause 27 provides that the public must be given at least 40 business
days to make submissions on the draft State plan.
Clause 28 requires the Minister to consider all submissions as well as the
Coastal Protection Advisory Council's advice about all submissions
properly made (the term `properly made' means submissions received at
the nominated place by the due date). The Council will report to the Minister
stating the reasons why suggestions should or should not be incorporated
when the final State plan is being prepared.
The person making a submission can request a response from the
Minister on their submission. In responding to the request, the Minister
must advise the person whether the submission was accepted or rejected,
and, if rejected the reasons for the rejection.
Clause 29 provides that the final State plan must be approved by the
Governor in Council. The approved State plan will be a legally binding
regulation. The Department will provide explanation of the plan and include
any maps referred to in the regulation.
This approach allows for a descriptive plan to be produced with reasons
for its rules. However, the legal part can be separate and written in the style
that allows the Court to interpret its intent clearly.
The State coastal management plan is a policy level plan that sets out the
objectives, strategies and arrangements for the management of the coast.
Regional coastal management plans will implement the policies of the State
plan and will form part of the State plan.
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Coastal Protection and Management
Division 2--Regional coastal management plans
Clause 30 provides that regional coastal management plans must be
prepared for particular parts of the State. These plans are intended to have a
greater level of detail and be more site specific than the State coastal
management plan.
Clause 31 requires the regional coastal management plan to show how
the region covered by the plan is to be managed and show the control
districts in the region. A regional plan can address any matter for which
regulations can be made under the Bill, and can prescribe any offences
relating to a contravention of the regional plan. A regional plan will take
note of any other management plans and regulations made under other
legislation that are relevant to the particular regional plan.
Clause 32 provides that the public must be given at least 40 business
days to make submissions on the issues and content that should be covered
in a draft regional coastal management plan.
Clause 33 requires the Minister to consider all submissions, as well as
the advice of the Coastal Protection Advisory Council and the regional
consultative group about all submissions properly made, concerning the
issues and content to be covered in the preparation of a draft regional coastal
management plan.
Clause 34 provides that the public must be given at least 40 business
days to make submissions on the draft regional coastal management plan.
Clause 35 requires the Minister to consider all submissions, as well as
the advice of the Coastal Protection Advisory Council and the regional
consultative group about all submissions properly made, concerning the
draft regional coastal management plan.
A person making a submission can request a response from the Minister
on their submission. In responding to the request, the Minister must advise
the person whether the submission was accepted or rejected, and, if rejected
the reasons for the rejection.
In addition, the Minister must advise any landowner who makes a
submission, the reason why the land was included in the control district in
the final regional plan and, if applicable, the reason for fixing a coastal
building line on the land.
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Coastal Protection and Management
Clause 36 provides that a regional coastal management plan must be
approved by the Governor in Council. The approved plan will be a legally
binding regulation. The Department will provide explanation of the plan and
include any maps referred to in the regulation.
Division 3--Review of coastal plans
Clause 37 provides that the Minister must review the State coastal
management plan and any regional coastal management plan within seven
years after the commencement date of the plan.
Clause 38 provides that the public must be given at least 40 business
days to make submissions on the issues and content that should be covered
in a proposal to review a coastal plan.
Clause 39 provides that the Minister can decide to prepare a new draft
coastal plan (State or regional) after considering the advice of the Coastal
Protection Advisory Council about all submissions properly made on the
review of a coastal plan. If, after the review, the Minister decides to prepare
a new regional plan, a new regional consultative group must be appointed
with membership in accordance with Clause 21.
Clause 40 provides that the public must be given at least 40 business
days to make submissions on a new draft coastal plan after it has been
prepared.
Clause 41 requires the Minister to consider:
· in the case of a final State plan; all submissions properly made on
the plan, and the advice of the Coastal Protection Advisory
Council about the submissions; and
· in the case of a final regional plan; all submissions properly made
on the plan, the advice of the Coastal Protection Advisory Council
about the submissions, and the advice of the regional consultative
group about the submissions made on the plan.
A person making a submission under this clause can request a response
from the Minister on their submission under the same provisions as
outlined in Clause 35.
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Coastal Protection and Management
Clause 42 provides that a coastal plan resulting from the review must be
approved by the Governor in Council. The approved plan will be a legally
binding regulation. A document published by the Department will explain
the plan in full and include any maps referred to in the regulation.
Division 4--Miscellaneous
Clause 43 provides that the chief executive of the Department
administering the Bill must implement the State coastal management plan
and any regional coastal management plan. In implementing a plan, the
chief executive can arrange with a local government, port authority or other
statutory authority to carry out or maintain works stipulated in a coastal
management plan.
Clause 44 provides for amendment to a State or regional coastal
management plan. This clause also applies for amendments to control
district boundaries where the district is part of a regional coastal
management plan.
Clause 45 states where a member of the public may inspect and purchase
a coastal management plan.
Clause 46 provides that a local government planning scheme may be
amended by the Governor in Council where there is an inconsistency
between the planning scheme and an approved regional coastal management
plan. This provision is limited to the amendment of planning schemes
prepared under the existing Local Government (Planning and
Environment) Act 1990 and will not apply to any schemes to be prepared
and approved under the proposed Planning, Environment and Development
Assessment Bill.
Before this provision is evoked, the local government and any affected
landowner are given an opportunity to make a submission to the Minister
about the proposed amendment.
When this provision is evoked, any landowner affected by a change of
zoning imposed under Clause 46(1) may apply for compensation in
accordance with the provisions of Chapter 5, Part 1.
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Coastal Protection and Management
PART 3--CONTROL DISTRICTS
Division 1--Declaration, amendment, amalgamation and abolition of
control districts
Clause 47 provides for an area of the coastal zone to be declared as a
control district. Control districts represent areas of the coastal zone which
could require specific development controls and special protection or
management through the issue of notices under this Bill and the
development approval process in the proposed Planning, Environment and
Development Assessment Bill.
Control districts cover the land/sea interface and in doing so provide the
mechanism for integrating the approval and planning processes for this
unique area. Control districts will provide the link between local
government jurisdiction which is limited by high water mark and the State
which extends to state territorial waters.
A control district can be declared:
· as part of an approved regional coastal management plan;
· by regulation if the area is not covered by a regional coastal
management plan and the Minister considers the area requires
protection or management; and
· by the Minister if the Minister considers the area requires
immediate protection or management.
Where the Minister declares a control district, the district must be
declared within six months by regulation or by being incorporated as part of
a regional coastal management plan. Otherwise it will cease to have any
effect.
When the Minister uses this special power to declare a control district,
Part 5 of the Statutory Instruments Act 1992 requiring the preparation of a
regulatory impact statement will not apply.
It is intended that, wherever practicable, the boundaries of a control
district will be fixed in relation to property boundaries and will not be
affected by any change in the location of the high water or low water mark
of tidal water.
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Coastal Protection and Management
In addition, this clause provides that all landowners whose land lies
wholly or partly within a control district declared under this clause will be
notified in writing at the time of the declaration.
The rationale used to determine the area of the coast that is included in a
control district is in Clause 49.
Clause 48 limits where control districts can be declared. Control districts
can be declared over all tidal waters of the State up to the limit of highest
astronomical tide, and can extend over adjoining land to the maximum
stipulated limits.
Clause 49 lists issues to be considered in determining the area of the
coastal zone to be incorporated in a control district.
Clause 50 provides for public notice to be given of the proposal for an
area of the coastal zone to be incorporated in the control district before a
control district is declared by regulation.
A person making a submission under this clause can request a response
from the Minister on their submission under the same provisions as
outlined in Clause 35.
Clause 51 provides that the Governor in Council can amend the
boundaries of a control district, amalgamate two or more districts, or
abolish a district. The public notification requirements of Clause 50 apply.
Division 2--Coastal protection and tidal works notices
Clause 52 provides for the chief executive to issue a notice to a person to:
· act to protect the land; or
· to stop, or not start, an activity which could have a detrimental
effect on coastal management or which could lead to a wind
erosion problem.
The notice can require the person to carry out specific actions or works
and may only be issued for actions or activities in a control district. A
person can appeal against the decision to give the notice.
The intent of a coastal protection notice is to stop actions that degrade the
coast or require actions that prevent degradation of the coast where the
landowner is responsible for the degradation. A notice will only be used
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Coastal Protection and Management
where there is fault but not necessarily illegality on the part of the landowner
and before a notice is issued, negotiation with the landowner will be used as
a first option in order to remedy the problem and avoid the issue of a notice.
Notices will not be used to remove a landowner's lawful approval to
undertake works.
Clause 53 provides that where works in tidal water (that is, below the
level of mean high water spring tide) are abandoned or in need of repair, the
chief executive can issue a notice to the person responsible for the works.
The notice can direct the person to repair or remove the works and restore
the site. A person can appeal against the decision to give the notice.
The intent of a tidal works notice is to ensure that works over the
foreshore or over tidal land are maintained in a safe condition, or, if
abandoned, are removed. A notice will only be used where there is fault but
not necessarily illegality on the part of the owner of the works and before a
notice is issued, negotiation with the owner will be used as a first option in
order to remedy the problem and avoid the issue of a notice. Notices will
not be used to remove a owner's lawful approval to undertake works.
Clause 54 provides that the chief executive can arrange for works or
actions to be carried out if a person fails to comply with a notice issued
under Clauses 52 or 53. The chief executive can recover all the costs
incurred in carrying out the works from the person who fails to comply
with the notice.
Clause 55 provides for the forfeiture of property if a person fails to
comply with a notice issued under either Clause 52 or Clause 53 in relation
to property that is on unallocated State land. This is to ensure that any works
left abandoned in contravention of a notice can be sold or disposed of by the
State.
Clause 56 provides for the Registrar of Titles to maintain a register of
notices issued by the chief executive under Clauses 52 or 53 for those cases
where the land concerned is held in freehold title or by way of a lease,
licence or permit issued by the State.
Clause 57 provides that the owner (including the occupier) of the land
and the person responsible for the works are jointly liable for requirements
of the notice issued under Clauses 52 or 53.
Clause 58 provides that the seller of the land or works subject to the
notice must advise the buyer of the notice.
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Coastal Protection and Management
Division 3--General
Clause 59 provides for a coastal building line to be established as part of
a declared control district. No structure which would require a building
approval under the Building Act 1975 from the local government for the
area can be built seaward of the coastal building line.
The intent of this provision is to ensure that development along the coast
is located in a consistent alignment so that it does not compromise future
coastal management options for the area.
The Minister can sanction an exemption to this requirement only where
there would be no detrimental impact on coastal management. An example
could be the construction of a demountable life guard tower which was
required to be located on the frontal dune for public safety purposes, but
which could be relocated landwards if beach erosion became a problem at
the site.
Clause 60 allows the chief executive to place a sign on State land
advising of certain requirements of a particular control district.
Clause 61 provides that the chief executive can occupy land in a control
district temporarily for building, maintaining or repairing works. This could
be needed to carry out emergency works along the coast during a cyclone.
The land owner can claim compensation for such occupation.
CHAPTER 3--INVESTIGATION AND
ENFORCEMENT
PART 1--ADMINISTRATION GENERALLY
Clause 62 provides for the chief executive to appoint officers of the
public service, employees of the Department administering the Bill or other
persons appointed under a regulation as authorised persons for the purposes
set out in the Bill.
Clause 63 states the qualifications required for appointment as an
authorised person.
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Coastal Protection and Management
Clause 64 sets out the conditions and term of an appointment as an
authorised person including those terms under which a person ceases to be
an authorised person.
Clause 65 states the powers granted to an authorised person.
Clause 66 requires the chief executive to issue an identity card to each
authorised person and states the information that must be shown on that
card.
Clause 67 provides that an authorised person must produce an identity
card when exercising a power in relation to someone else.
Clause 68 requires a person who ceases to be an authorised person to
return an identity card to the chief executive.
Clause 69 provides an authorised person or a person acting under the
direction of an authorised person with protection from civil liability when
acting under the Bill.
PART 2--INSPECTION AND OTHER POWERS
Division 1--Power of entry
Clause 70 provides for an authorised person to enter land at any
reasonable time to inspect or survey the land or works on the land. The
authorised person must obtain the agreement of the occupier or owner of
the land or give seven days notice, unless entry is required under urgent
circumstances to protect the coastal zone.
Clause 71 provides procedures whereby an authorised person must
notify the owner in writing of particulars of damage to anything which has
occurred in the exercise of a power under the Bill.
Clause 72 provides for a person who has incurred a loss or expense as a
result of the exercise of a power under the Bill to claim compensation.
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Coastal Protection and Management
Division 2--General investigative powers
Clause 73 provides the right for an authorised person to require a person
who has committed an offence against this Bill or has reasonable
justification to suspect that person has committed an offence against this
Bill to provide their name and address.
Clause 74 provides that a person must comply with the requirement of
providing their name and address unless the person has a reasonable excuse
for not complying.
Division 3--General
Clause 75 provides for penalties to apply if a person makes false or
misleading statements to an authorised person.
Clause 76 states that a person must not give an authorised person a
document which that person knows contains false or misleading
information.
Clause 77 states that a person must not obstruct an authorised person in
exercising a power under the Bill.
Clause 78 states that a person must not pretend to be an authorised
person
CHAPTER 4--LEGAL PROCEEDINGS
PART 1--EVIDENCE
Clause 79 provides certain evidentiary provisions relating to legal
proceedings under the Bill.
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Coastal Protection and Management
PART 2--PROCEEDINGS FOR OFFENCES
Clause 80 provides that, in this Bill, an indictable offence is one that is
prescribed under a regulation. Any other offence is a summary offence.
Clause 81 states how proceedings for indictable offences against this Bill
will be undertaken.
Clause 82 provides that proceedings for the summary conviction of an
indictable offence and the examination of witnesses for an indictable offence
must be before a Magistrate.
When proceedings for an indictable offence are brought before a justice
other than a Magistrate, action is limited by the Justices of the Peace and
Commissioners for Declarations Act 1991.
Clause 83 provides that summary proceedings for an offence against this
Bill must be started within one year of the offence or within one year after
the offence comes to the complainant's knowledge but within five years of
the commission of the offence.
PART 3--RESTRAINT ORDERS
Clause 84 provides that an order can be sought from the Planning and
Environment Court to stop an offence or a threatened offence against this
Bill and ensure that appropriate remedies be applied. This clause provides
that any person can go to Court to restrain or remedy an offence against the
Bill, regardless of whether they have been affected directly. To ensure that
the Court's time is not wasted and the alleged offender is justly treated, the
Court must consider whether the application meets certain criteria. The
criteria include:
· the evidence has been presented to the responsible authority and
that authority has failed to act within a reasonable time;
· that harm to the coastal zone has occurred or is threatened and the
application is likely to succeed;
· that the application has been adequately prepared and is in the
public interest;
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Coastal Protection and Management
· the case would not be an abuse of process, such as a series of
applications on the same matter, aimed at delaying a project; and
· any other matter that the Court considers relevant for maintaining
justice and equity.
When uncertainty exists in whether the case should be heard or not,
preference should be given to hearing the case, as this ensures that justice is
`seen to be done'.
To ensure that the applicant's actions are genuine, the Court can order
costs if the case was brought for obstruction and delay.
Clause 85 empowers the Planning and Environment Court to prevent
harm to the coastal zone pending the outcome of a proceeding.
CHAPTER 5--ADMINISTRATION
PART 1--COMPENSATION
Clause 86 provides that an owner of interest in land can apply for
compensation if a coastal management plan imposes a restriction or
prohibition on the owner's existing lawful rights of use of the land.
Clause 87 states the circumstances when compensation is not payable
and, if compensation is payable under another Act, the claim for
compensation must be made under the other Act.
Clause 88 sets out the time limits within which a claim for compensation
must be made and specifies when the claim for compensation is taken to
have been made.
Clause 89 specifies how the chief executive must decide the claim for
compensation.
Clause 90 sets out the requirements that must be taken into account when
the amount of compensation is being determined.
Clause 91 specifies the time limits within which the compensation must
be paid.
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Coastal Protection and Management
Clause 92 sets out the conditions under which the owner may appeal to
the Court against a decision of the chief executive.
Clause 93 provides that the Planning and Environment Court must have
regard to any reduction in the market value of the land because of the
change that has been made to the existing lawful use of the land.
Clause 94 provides that the payment of compensation must be recorded
by the register of titles.
PART 2--APPEALS
Clause 95 provides that a person dissatisfied with a decision to give the
person a coastal protection or tidal works notice (refer Clauses 52 and 53)
can appeal against the decision to the Planning and Environment Court.
Clause 96 provides for the timing and content of an appeal to the Court.
Clause 97 provides that the appellant must provide the chief executive of
notice of the appeal within seven days of filing the notice.
Clause 98 provides that a stay of the decision appealed against may be
granted on such conditions as the Court considers appropriate. However,
the original or review decision remains in place until the appeal is
determined or a stay granted.
Clause 99 provides for an appeal to be heard in accord with the
applicable rules of the Court. The appeal is by way of a re-hearing and the
Court has complete discretion to make a decision in place of the
administering authority.
Clause 100 lists the powers of the Court in deciding an appeal.
PART 3--MISCELLANEOUS
Clause 101 empowers the chief executive to delegate powers to an
officer of the public service, a local government, port authority or other
statutory authority.
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Coastal Protection and Management
Clause 102 provides that the chief executive must report at least every
four years on the condition of Queensland's coast and identify significant
trends in coastal values as well as review the efficacy of coastal
management programs and strategies. The Minister will be required to table
this Report in the House within 14 days of receiving it. This provision is
similar to "State of the Environment" reporting provisions of the
Environmental Protection Act 1994.
Clause 103 lists those matters for which the Governor in Council can
make regulations.
Clause 104 provides for the saving of each Coastal Management Control
District and erosion prone area under the Beach Protection Act 1968 to be a
control district. This clause also provides for the saving of building set-back
requirements as specified in the plans listed in the Table in the Coastal
Management Control Districts (Requirements for Buildings and Other
Structures) Regulation 1984 as a coastal building line.
Notwithstanding the provisions of this clause, Coastal Management
Control Districts, erosion prone areas and the set-back requirements
prescribed by regulation, under the Beach Protection Act 1968 will remain
in force until the Beach Protection Act 1968 is repealed by the proclamation
of the proposed Planning, Environment and Development Assessment Bill.
PART 4--CONSEQUENTIAL AMENDMENTS
Clause 105 sets out the amendments required to the Beach Protection
Act 1968 and the Transport Infrastructure Act 1994. The intent of the
amendment to Section 41 of the Beach Protection Act 1968 is to allow the
Governor in Council to impose a land surrender condition as part of a
rezoning approval. The land surrender provision would apply where a
person applies to rezone land which is either wholly or partially within a
Coastal Management Control District or an area to which an erosion prone
area plan applies. Land surrender is applicable to the landward limit of the
erosion prone area and will not be appealable or subject to compensation.
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Coastal Protection and Management
The amendment to Section 45 of the Beach Protection Act 1968 allows
the existing land surrender provision to apply to the subdivision of land
within an area to which an erosion prone area plan applies.
© The State of Queensland 1995