Pridel Investments Pty Ltd v Coffs Harbour City Council

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

24/04/2016

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Coastal hazard

REVIEW TYPE

Merits review

SUMMARY

This appeal relates to a development application for a 39-lot subdivision and boundary adjustment on land at Solitary Islands Way, Emerald Beach near Coffs Harbour. The development application lodged by Pridel Investments Pty Ltd (the Applicant) on 29 August 2013 was refused by Coffs Harbour City Council (the Council) on 26 March 2015. These proceedings were commenced on 22 April 2015 to challenge the Council’s refusal of the DA. The Council resolved to refuse the DA for a number of reasons, including an unacceptable risk of flooding (contrary to policy documents which require consideration of climate change), and non-compliance with the Our Living City Settlement Strategy, which required the developer to consider ESD principles. In relation to flooding, the Council contended that flood considerations under climate change are inappropriate and inconsistent with normal practice. The Court upheld the Council’s decision to reject the proposal on the grounds that the applicant did not comply with the objectives and requirements in the list of relevant policy documents governing the approval of coastal developments by councils, including the NSW Coastal Policy (objective 2.2 requires consideration of the impacts of climate change). The judgment notes that the case is not only dependent on the future effects of climate change occurring to exacerbate flooding, as coastal erosion in the area is occurring now. However, the judge notes that when climate change projections are taken into account, the development clearly does not factor these in to its design, as it is required to under the relevant coastal policies and the “The East Coast Cluster Report, Climate Change in Australia Projections for Australia’s NRM Regions”, prepared by the CSIRO and Bureau of Meteorology (CSIRO 2015).

CASE DOCUMENTS

Pridel Investments Pty Ltd v Coffs Harbour City Council [2017] NSWLEC 1042