Recent Coastal Legal Cases

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There have several recent court cases that relate to coastal management. We should be aware that decisions by courts can form a basis for future planning and actions in coastal management. While the legal process can be very time-consuming for those involved, the outcomes can be rewarding. However, as I will note there are processes which highlight complexities in legal judgment that can confuse and complicate the lives of coastal managers, communities and landowners.

My involvement in legally framed inquires and court cases extends back to 1970s with inquires related to sand mining on Fraser Island and Myall Lakes. The recent Royal Commission on the Murray-Darling Basin Plan before Brett Walker SC occupied a fair bit of my time given my interest in coastal processes at the mouth if the River Murray (this also involved Nick Harvey). But in this blog, I wish to discuss 3 cases heard before two different courts. I had an intimate involvement with one, a marginal interest in another, and nil in the third.

I will start with a case just recently determined by the High Court of Australia. I am grateful to Meagan Hawley of Lindsay Taylor Lawyers for information on this case (matters listed as P34 to P 37/2019). The case involved the Commonwealth and Western Australian Governments as appellants against two native title claim groups from WA. The Court handed down a decision protecting beaches from native title determinations excluding public access. The Full Federal Court had found that the claimant had native title rights and interests which prevailed over the public’s rights to access the coast and beaches. That decision was overturned by the High Court (shades of the Pell case!).

Before the High Court made this decision, the public’s use of popular beaches and those subject to reservations for public purposes could have been noted on native title determinations. The Court’s decision will help protect remote beaches where there is little evidence of public use and which are not subject to specific reservations granting public access. It also ensures that as there is no need to prove a positive right of access for the public. In future cases it will not be necessary, in order to protect public access, to identify legislation or reservations which contain such positive rights. The court noted that where a State has passed a confirming law such as in WA and NSW, public access can be acknowledged in the native title determination, unless there was at the time of the confirming law a prohibition on public access. Of course, the irony of all this now is that public access is denied to many very popular public beaches in several states as a result of COVID-19!

 In contrast to this case, where I was not involved, the next case took several years off my life in 2018 (well not quite, but at times it felt like it!). I was the respondent on behalf of the NSW Transitional Coastal Panel in litigation over development rights at Belongil Beach, Byron Bay, NSW. This was a case with multiple litigants before the Chief Judge of the Land and Environment Court of NSW (e.g. Ralph Lauren v NSW Transitional Coastal Panel, LEC 1679 and others see LEC 1680, 1678, 1681, 1682). Details of this litigation and its public policy context are discussed in a recent paper in the Environmental and Planning Law Journal (2020, 37/1, p. 128-135) entitled “Coastal management and protecting the public interest: recent Land and Environment Court decisions” (B. Sack, T. Allen and B. Thom). In this paper we look at how the Court considered the application of a section of NSW coastal legislation (s27 in Coastal Management Act 2016, or s55M in former Coastal Protection Act) in protecting the public’s right to use and occupy public beaches. We conclude that the Court confirmed the public good effect of the Act and demonstrated a very high bar to the permissibility of private use of a public beach for the purpose of private property protection. We argued that this was consistent with the principles of the Public Trust Doctrine, used to such good effect in the USA.

The third case also involved advice given to NSW Government by the then Coastal Panel on which I was variously a member and a Chair. This case was before Justice Robson of the Land and Environment Court (2019, NSWLEC 202): Boomerang & Blueys Residents Group v NSW Minister for the Environment Heritage and Local Government and MidCoast Council. At issue were decisions taken by the Minister who had received advice from the Panel to certify and adopt the Great Lakes Coastal Zone Management Plan. The applicants argued that risk assessment methods used and applied by the Great Lakes Council were not appropriate to their location. The Court examined the process used by the Minister reaching her decision. It agreed that prescribed guidelines were followed, and “that the process by which the hazard risk maps were generated, although somewhat complex, was properly considered by Council” (para 259). The findings are quite detailed. They indicate how important it is for local councils and government agencies to follow and thoroughly document processes as set out in manuals, guidelines, statutory, policies and legislation. I was pleased to see how carefully the Court reviewed what we the Panel had done in delivering advice to the Minister.

For many with an academic science background in coastal studies, participation in adversarial litigation and even legal inquiries can be painful. Processes that must be followed are tightly controlled. However, there are opportunities to contribute and help make a difference to outcomes. Yes frustrating, time-consuming and demanding, but necessary. Unless there are those of us with expertise and willingness to engage in the legal system, then legal decisions can by default produce outcomes that are not conducive to sound, sustainable coastal management.

Bruce Thom  

Words by Prof Bruce Thom. Please respect the author's thoughts and reference appropriately: (c) ACS, 2020, for correspondence about this blog post please email austcoastsoc@gmail.com

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