An open letter to the Minister for Planning

The Hon Anthony Roberts MP

Minister for Planning

GPO Box 5341


Dear Minister,

I am writing to congratulate you on your appointment as Minister for Planning. As you would know this is a portfolio that can have a dramatic impact on the lives of all residents of NSW and I am confident you will deal with the issues involved sympathetically, pragmatically and in the best traditions of the Coalition’s concern for individual property rights.

In this regard I am, as President of the Eurobodalla Community Forum, writing on behalf of more than 6000 property owners in the Eurobodalla Shire who have been severely disadvantaged as a result of Council planning policies which arise from directions or suggestions from the State Government in respect of possible sea level rise. These, and residents owning coastal property from Boydtown to Tweed Heads are extremely concerned at the impact on them and their families of the Coastal Management legislation (originally introduced by Labor and, although altered somewhat, retaining the more repugnant aspects of Labor’s legislation) and the SEPP arising from it.

A large number of residents have already expressed their concern about the SEPP and the limited time your predecessor allowed for comment on it, particularly as the people of NSW have to date been denied accurate information about the extent to which their properties may or may not be affected by this legislation and its implementation. Despite claims to the contrary there is a very real concern that the Government, by accident or design, is embarking on a policy of “planned retreat” which can have even more calamitous impact on individual property owners than sea level rise itself. Certainly a number of Councils seem determined to go down this path and only a clear direction from your Government will prevent “planned retreat” disrupting coastal and near coastal property owners’ plans as it will restrict them from even minor renovations to their properties. (Another related issue is the use by Councils of E2 zoning to effectively sterilise land, details of which I would propose to deal with in separate correspondence).

Given the number of self-explanatory submissions I will not in this letter go into detail on the general SEPP issues , but would particularly draw your attention to decisions of Eurobodalla Shire Council which were based on “suggestions” made by the Coastal Panel and inferences contained in correspondence from your predecessor, relating to Wharf Road North Batemans Bay. These represent a very clear and present danger not just to residents but Governments as well.

In 2011 the then Government decided part of this area was a “hotspot” (according to residents it became so due to the erection of a sea wall on the other side of the bay which resulted in substantial sand movement) and directed the Council to develop a management plan. This plan took five years to be finalised and was submitted to the current Government several months ago. It proposed acquiring a number of properties which were subject to inundation from time to time.The plan was sent to the Coastal Panel for comment. The Panel advised it would only recommend acceptance of the plan if changes were made, both “ minor” ones to incorporate the role of the Lands and other Departments and added:

“Action (1) of the implementation strategy (Table 5) seeks to “make application for the purchase of tidal and sub-tidal private properties and beaches at Wharf Road”. It is the view of the Coastal Panel that the judgment in ENVIRONMENT PROTECTION AUTHORITY v. ERIC SAUNDERS [1994] NSWLEC 187(29 November 1994), offer the view that submerged lands automatically revert to the Crown and therefor are not required to be acquired. This should correctly be reflected in the Plan “

The Court comment in the case quoted was, in fact, taken out of context, and the question of ownership of submerged lands was not part of the judgement on substantive issues. However the comments from the Coastal Panel made it quite clear that this body, if not the Government, is intent on a policy of compulsory acquisition without compensation. Such a policy, if it proceeds, would make the Government’s initial Greyhound decision a minor political event.

In fairness your predecessor’s advice to the Council did not directly refer to the reference re submerged lands automatically reverting to the Crown, but it was ambiguous when taken together with the Coastal Panel’s recommendations. In any event the Council management advised that the Minister would not approve the plan unless compulsory acquisition went ahead. (If you wish I would be happy to provide the relevant documentation).

This has caused widespread concern not just among residents of Eurobodalla but all along the coastline, exacerbated by the fact that at least 60,000 properties and quite possibly more than 100,000 may be affected by “planned retreat”. Eurobodalla Council has already embarked on a policy of restricting approvals in areas to limited time and/or lightweight construction able to be moved. If these policies extend throughout the coastline one can only imagine the electoral response.

I would add that Councils and the Coastal Panel seem to be only concerned about environmental issues and exclude social and economic consequences of their decisions. “Planned retreat” must involve infrastructure as well as private property, and as such would represent a much greater cost to government and communities than sensibly organised protective measures. This does not seem to have been taken into account.

For this reason I am sure all communities affected by this legislation are looking forward to you resetting the situation. As an initial step I would strongly recommend proclamation of the SEPP be deferred at least until such time as all affected communities (who include areas in the western suburbs of Sydney) are adequately informed about the implications for them (rather than wait until they discover the impact closer to the next State election) and have an opportunity to have their views taken into account and acted upon rather than have the situation resolved at the ballot box.

It would also be extremely useful if you could advise Eurobodalla Council in no uncertain terms that the current Government does not support acquisition without compensation of the land at Wharf Road North Batemans Bay, and that the Government does not endorse a policy of “planned retreat”. Residents all along the coast are concerned that without such a clear statement the Wharf Road situation could become a de facto precedent endangering anyone who may have, or hope to obtain, a property within a kilometre from the coastline or estuarine waterways (e.g., the Parramatta River).

In closing and on behalf of the affected residents may I again express my congratulations on your appointment and best wishes for a constructive and positive relationship in the future. I also think it most important that the coastal management responsibility remain with you rather than other offices such as Environment and Heritage which have, quite frankly, lost the confidence of coastal communities.


Russell Schneider AM

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