The submerged and tidal land at Wharf Road Batemans Bay (400 metres from the bridge) has, indirectly and directly, been on Council Agendas for over 30 years. It is shortly to be progressed when the NSW Minister for Planning and Environment Certifies the Council’s ‘Wharf Road Coastal Zone Management Plan’.
This decision will have implications into the future, both with the surrounding land in Wharf Road, and other land in this Shire and elsewhere, particularly if global warming leads to sea level rise.
In supporting the Plan, the Minister said that the Plan seeks to return this precinct to public ownership and restore unimpeded public beach and foreshore access to these margins, which will be of significant benefit to the local community.
Key Dates
29 November 1994 Land and Environment Court NSW, Environment Protection Authority v Eric Saunders and Leaghur Holdings Pty Ltd, 1994,187
2011 NSW Minister for Environment identifies the Wharf Road area as a “hot spot” under the Coastal Protection Act 1979 and Directs that a Coastal Zone Management Plan be developed
February 2012 Emergency Action Subplan for the Wharf Road Coastal Erosion ‘Hot-spot’ prepared by consultants. 28 June 2016 Council adopts Wharf Road Coastal Zone Management Plan and forwards to the Minister for Planning and Environment for Certification Minister seeks advice of Expert Coastal Panel 3 October 2016 Minister refers Plan back to Council for minor amendment.
22 November 2016 Council refers amended Plan back to the Minister for final Certification. The Council report in November 2016 on the Wharf Road CZMP indicates that the land at Wharf Road is highly constrained by natural hazards and is not suitable for the purpose of development. The land is zoned E2 under the Eurobodalla Local Environmental Plan (ELEP) 2012 as a reflection of these constraints.
In considering the natural constraints and zoning of the land, the Wharf Road
Plan forwarded to the Minister on 30 June 2016, recommended the following
actions:
1. Make an application for the purchase of tidal and sub-tidal private properties and beaches at Wharf Road
2. Investigate options for the relocation or improved protection of water and sewer
mains
3. Improve public access, weed and rubbish removal
4. Incorporate incomplete actions into the Eurobodalla Coastal Management Program and
5. Review Plan or incorporate into the Eurobodalla Coastal Management Program in accordance with legislation.
The Minister and the Expert Coastal Panel required revision to Action 1. (above) asking the Council to remove any reference to the purchase of submerged land given the precedent of the 1994 Saunders Land and Environment Court judgment (see Key
Dates). The Expert Coastal Panel said that the Saunders precedent “..offer the
view that submerged lands automatically revert to the Crown and therefore are not required to beacquired…”.
The ESC’s Coast and Environment Management Advisory Committee (CEMAC) considered the acquisition and ownership of land due to ambulatory boundaries. Some on the CEMAC argued that Council was setting a precedent over the Wharf Road land if no acquisition was made, but what these members failed to appreciate was the precedent had already been created in the Saunders case in 1994.
Until a case is taken to a higher court or legislation is introduced into the NSW Parliament reversing this position, then the Saunders case is the legal basis to have such lands automatically revert to the Crown.
The Council made the recommended amendment plus some other minor changes. The panel also made two additional suggestions to improve the Plan and anticipated outcomes. These suggestions were:
1. It is noted that the area the subject of the Plan has a long history involving several court proceedings that are prominent in the NSW coastal case law. There might be benefit in providing a small appendix that lists or captures this relevant information, and
2. It is recommended the Plan goes a step further in describing actions that could be undertaken once the relevant private landholdings have been acquired including removal of building stock and restoration of the land.
Council should also consider removal of the groyne structure that currently prevents unimpeded access along the foreshore. This will have the added benefit of providing rock armour that could be recycled to facilitate necessary protection of threatened infrastructure at the road corner. The requested changes were included in the revised
Wharf Road Plan.
The Council is to liaise with NSW Land and Property, to have the title of the submerged lands revert to the Crown.
When the NSW Government obtains title to these lands, it is likely the Eurobodalla Council will be responsible for ongoing management and maintenance of these Crown Lands on behalf of the NSW Government.
Following Certification, the Council intends to apply to the NSW Coastal Management Program to obtain funds to acquire land remaining in private ownership.
Implementation of some actions from the Wharf Road Coastal Zone Management Plan will require an initial financial commitment from Council.
However, grant funding is available to implement actions from a Certified Plan.
No actions will occur until sufficient grant funding has been secured.
