In brief - NSW Court of Appeal dismisses a challenge brought by a landowner in Tweed Heads against the validity of coastal wetlands mapping in the State Environmental Planning Policy (Coastal Management) 2018 

Reysson v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 (Reysson) highlights the increasing prevalence and importance in planning law of jurisdictional facts as a ground for challenge in planning and environment matters. Whilst the challenge was unsuccessful, it nevertheless serves as an important reminder for legislators and policy makers on one hand and applicants and landowners on the other to be alive to language in legislative instruments that might be argued to constitute a jurisdictional fact.

Legislative framework of the SEPP 

The recent introduction of the Coastal Management Act 2016 (NSW) (the Act) creates the framework for managing coastal issues in NSW. The Act defines four distinct "coastal management areas", with each being defined in Part 2 of the Act, and assigned a set of management objectives: 

  1. Coastal wetlands and littoral rainforests area. 

  2. Coastal vulnerability area. 

  3. Coastal environment area. 

  4. Coastal use area. 

Underneath the Act, the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) identifies the four coastal management areas with individual maps (clause 6). 

The Costal Management SEPP is an environmental planning instrument made under the Environmental Planning and Assessment Act 1979 (EP&A Act). The stated aim of the Coastal Management SEPP is to:

"promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016, including the management objectives for each coastal management area". 

The Act and the Coastal Management SEPP play an important role for development within these four areas.

Landowner challenges validity of mapping of its land as coastal wetlands and littoral rainforests area

In Reysson, a Tweed Heads landowner brought judicial review proceedings challenging the validity of the mapping of its land as “coastal wetlands and littoral rainforests area” under the Coastal Management SEPP. 

The case was previously dismissed by Pain J in Class 4 of the NSW Land and Environment Court, and was appealed by Reysson to the NSW Court of Appeal. 

There were 10 grounds of appeal, which were grouped into three distinct issues: 

  1. Issue 1 (grounds 1-8) had at its heart an important administrative law principle, and concerned whether clause 6(1) of the Act contained a jurisdictional fact (i.e. a precondition to be satisfied of before the statutory power could be exercised) to identify land as being within a coastal wetlands and littoral rainforests area. 

  2. Issue 2 (ground 9) concerned whether the proximity area in the Coastal Management SEPP (which was mapped as a 100m zone) was reasonably appropriate and served the objects of the Act. Expert evidence was relied on by the appellant to argue 100m was not reasonably appropriate and adapted to serving the objects of the Act and the Coastal Management SEPP.

  3. Issue 3 (ground 10) concerned an administrative procedural issue and was whether the Governor of NSW needed to have had regard to or approve the relevant map in the SEPP. 

Issue 1 - Was there a jurisdictional fact that was not satisfied? 

Reysson argued that the power to identify land as being within the "coastal wetlands and littoral rainforests area" in a SEPP for the purposes of the Act extended only to land which meets the statutory description in section 6(1) of the Coastal Management Act. The statutory description is:

"…land identified by a State environmental planning policy to be the coastal wetlands and littoral rainforests area for the purposes of this Act, being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features." (emphasis added)

The essence of Reysson's argument was that land needed to display the hydrological and floristic characteristics of coastal wetlands or littoral rainforests in order to be identified and mapped as a "coastal wetland and littoral rainforest area". Reysson argued that this was a jurisdictional fact which was a precondition to the exercise of the statutory power to actually map the land. It followed from Reysson's argument that there was no power to identify land as a coastal wetland or littoral rainforest if it did not meet the description in section 6(1) of the Act, i.e. display the relevant characteristics. 

Reysson failed on this ground. The Court found that section 6(1) of the Act did not impose a jurisdictional precondition to the exercise of power to map any land as part of the coastal wetlands and littoral rainforests area. Accordingly, the Court had no power to determine for itself whether Reysson's land fell within the mapping for a "coastal wetlands and littoral rainforests area". 

The Court cited the High Court case of Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 and stated at [53]: 

"Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction". 

In answering the question of statutory construction, the Court found that the structure of the Act tended against characterisation of the description in section 6(1) as a jurisdictional fact, and that it was "improbable that the legislature intended that these provisions turn on objective jurisdictional facts". See [66] and [72].

In other words, whatever the map states, the map states, and it could not be impugned based on the argument the mapping exercise involved a jurisdictional fact.

Issue 2 - was the mapping of a 100m proximity zone reasonable? 

Reysson argued that the identification of land “adjoining” coastal wetlands was required to be "reasonably and appropriately adapted to achieving the objects and aims of the Coastal Management Act and the Coastal Management SEPP". Otherwise, it would lack proportionality. Expert evidence was adduced about whether the 100m proximity area was reasonable, but this evidence was rejected by the primary judge as irrelevant.

Reysson also failed on this ground. The Court of Appeal found that the Coastal Management SEPP was not disproportionate in any sense to the objectives of the Act, the EP&A Act or the Coastal Management SEPP. It concluded at [105] that "the technique of imposing a generic proximity area of buffer zone is both rational and proportionate as a legislative device to serve the objects" of the EP&A Act and the Act, especially in circumstances where it is used to trigger an analysis of adverse development impacts. 

Issue 3 - did the mapping itself need to be before the Governor? 

In a novel argument, Reysson argued that as the Governor makes the SEPP, the Governor needed to have approved the relevant mapping, but in this case, it was approved by the Minister administering the EP&A Act. 

Reysson also failed on this final ground. The Court of Appeal found at [112] that nothing in the EP&A Act or the Act required the Governor to identify land as the "coastal wetlands and littoral rainforests area" through any particular process of “approval”, and that it was open to the Governor to make an instrument which identified land through the device of adopting by reference a map which had been approved by the Minister.

Takeaway message

The decision enables the use of the mapping within State Environmental Planning Policies to impose restrictions on and control the development of land. 

As the Court of Appeal found that the identification of land with the Coastal Management SEPP maps was not a jurisdictional fact, developers will need to address certain matters (sometimes at great cost) even where mapping may be inaccurate or not display the relevant characteristics (often at great expense and effort). Certain matters will need to be addressed within these generic proximity or buffer zones.

The Court's comment that the technique of imposing a generic proximity area or buffer zone is both rational and proportionate in the context of State-wide mapping legitimises the practice throughout NSW. 

 

The failure of the novel argument that the mapping needed to be before the Governor ensures that the "status quo" is maintained and no additional procedural obstacles to State planning are created for the Government in implementing planning policies. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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