Agenda of Extraordinary Council Meeting

Item No: 2.1
Title: Council Response to Coastal Erosion at Central Coast Beaches specifically Wamberal and The Entrance North
Department: Corporate Services
13 May 2025 Extraordinary Council Meeting

Reference: F2025/00016 - D16822314

Executive: Shannon Turkington, Acting Director Environment and Planning

Recommendation

That Council:

1 Considers options for attempting to mitigate the risks from further beach erosion to certain areas at Wamberal and The Entrance North.

2 Resolves, for the purposes of s11(3) of the Local Government Act 1993, that the legal advice at Attachment 1 to this report remain confidential because that attachment includes advice concerning potential litigation or advice that would otherwise be privileged from production in legal proceedings on the grounds of legal professional privilege.

Report purpose

To consider options in relation to coastal erosion impacts on certain areas at Wamberal and The Entrance North associated with weather / ocean events based on short to medium term weather predictions.

Executive Summary

Recent events at Wamberal and The Entrance North has resulted in beach erosion that has required properties to be evacuated due to the potential risks to life and property during storm and weather events in April 2025. At an extraordinary meeting held 6 May 2025, Council resolved a number of actions, and this report provides some additional detail to consider options attempting to mitigate the risks from further beach erosion to certain areas at Wamberal and The Entrance North.

Confidentiality

Attachment 1 to this report includes advice that would or might be privileged from production in legal proceedings on the grounds of legal professional privilege. Legal professional privilege is an important right that is waived if legal advice is disclosed to third parties. It is strongly recommended that Attachment 1 to this report remain confidential. To effect that confidentiality, it is recommended that Council resolve, for the purposes of s11(3) of the Local Government Act 1993, that the document at Attachment 2 is confidential because it relates to a matter specified in section 10A(2), being advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege.

Background

The Central Coast region is home to several coastal locations that are particularly vulnerable to coastal hazards. In 2020, hazardous ocean conditions resulted in significant erosion impacts at Wamberal Beach and The Entrance North (between Hargraves Street and the southern end of Hutton Road). Since that time, a number of other similar events have occurred, exacerbating the existing erosion issues in these areas.

Wamberal Beach has shown intermittent signs of recovery over this period with significant sand volumes accreting back on the beach, while The Entrance North has struggled to accumulate any sand, leading to persistent erosion problems. Recently, similar hazardous ocean conditions have compounded the coastal erosion issues at both locations including the loss of accreted sand from Wamberal Beach. This has resulted in landslips, loss of private land to the ocean, and further landward contraction of erosion escarpments, posing a threat to homes. In specific reference to these current locations of most concern, staff estimate that there are three residential buildings at The Entrance North, and approximately twelve throughout the most affected sections of Wamberal Beach, that are either unpiled or have insufficient piling to withstand the ongoing effects of coastal erosion.

These conditions present significant risks not only to private property owners and occupants but also to the broader public who use these beaches. Landslips, failed structures, and exposed building materials can create hazards for beachgoers.

In accordance with Council’s resolution of 6 May 2025, this report is provided for Council to consider possible solutions to address the immediate coastal erosion challenges.

Report

In considering the options moving forward, the following points are considered relevant:

1. Short to medium term weather forecast

2. Correspondence from State and Federal members

3. Recent long term advice from Reconstruct NSW

4. Local Emergency Operations Controller (LEOCON)

5. Immediate impacted areas and possible physical works

6. legislative considerations and options

1. Short to medium term weather forecast

Advice sought from Department of Climate Change Energy, the Environment and Water (DCCEEW) indicates that short term (7 day) weather predictions are the most reliable. It is difficult to predict likely weather risks for the longer term due to the lack of a comprehensive model to assess swell, tides and other climatic factors. Tidal forecasts are considered in conjunction with swell height and direction to determine if there is a possibility of a risk to our coastal erosion locations.

Tidal charts are the only longer-range reliable information available, swell forecasts are only reliable within the 7-day period.

The current predictions indicate that the highest tides of the year will occur from 25 - 29 May 2025. If these high tides correspond with large easterly swells, there may be a significant risk to coastal erosion areas considering the current vulnerable state of these locations. Swell forecasts will be monitored over the coming months to assess the risk of erosion impacts on the Central Coast beaches.

2. Correspondence from State and Federal members

The Minister for the Central Coast David Harris has had informal discussions with Council following Council’s letter to the Premier dated 6 May 2025. Following these discussions, it is anticipated there will soon be a letter of response to Council’s request to the Premier (at the time of finalising this report, the letter has not been received).

3. Recent long term advice from Reconstruct NSW

An email has been received by Council from Reconstruct NSW dated 7 May 2025. This provides a potential long term strategy direction for sand nourishment. Reconstruct NSW have requested a meeting with Council to assess the feasibility. While this is not part of the purpose of this report, it is considered appropriate to include for information and completeness.

4. Local Emergency Operations Controller (LEOCON)

The LEOCON has certain powers during events that are beyond those available to Council. At the time of writing this report, a meeting has been scheduled for Monday 12 May, 2025 requested by the LEOCON and relevant Council staff. Further information may be available for the meeting.

5. Immediate impacted areas and possible physical works

Discussion in this section is provided should Council pursue an available pathway for temporary works to mitigate immediate risks of coastal erosion.

A coastal engineer will be engaged to help identify the objective of the works and determine location of the works prior to any works being undertaken. This preliminary advice on potential works that could be undertaken is independent of legislative and other considerations discussed in section 6 of this report and purely considers likely physical and engineering responses to mitigate immediate erosion risks. Further consideration of legal (including approval pathways), risk, funding and other implications will need to be given prior to committing to any of these proposed works.

In the interim, staff have undertaken an initial review of the impacted areas to assess the impact of further coastal erosion at critical locations.

Wamberal

The current risks at Wamberal are most severe from approximately 27 Ocean View Drive through to 65 Ocean View Drive, although other impacts have been observed further to the south towards Terrigal Lagoon, and in areas further to the north towards 95 Ocean View Drive.

Figure 1: 49-63 Ocean View Drive Wamberal (Image credit NSW Department Climate Change Energy the Environment and Water, 2 April 2025)

A map has not been provided for this area as more assessment is required. If toe protection works are deemed to be the most appropriate and legal response, preliminary observations suggest that there appears to be 3-6 locations along Wamberal Beach that may need to be addressed. These observations suggest apparent low points in emergency toe protection structure installed in 2020 that have developed and that may need to be raised to a consistent height in order to more appropriately mitigate immediate risk to properties. A specialist coastal engineer will be required to advise the exact location and scope of potential works should this option be pursued.

Treatment along this area could include various locations of toe protection works where 2020 emergency works consisted of areas of rock bags and placed rock. Although these previous emergency works are performing satisfactorily and protecting the toe of the erosion scarp, there is some slumping occurring at various locations. Potential works would therefore likely address slumping at the 3-6 impacted locations to reinstate the height of toe protection works consistent with adjacent areas.

The placement of proprietary rock filled bags via excavator along the beach front with access and stockpile at Pacific Street, Wamberal would be the likely methodology. This may require sand filling behind the bags to reinstate any scoured areas, and/or sand scraping works where sand would typically be sourced from the intertidal area and placed higher up the beach.

This approach would be limited to single vehicle movements from Pacific Street along the beach front. This approach is preferred to alternatives such as craning rocks over houses which may require full closure of Ocean View Drive.

These proposed works would not provide for repair of private structures or removal/repair of private beach accesses unless they need to be removed to gain clear access for plant and equipment. Approved reinstatement will be the responsibility of owners.

This potential action has not yet been endorsed by coastal engineers, and although it may provide some immediate emergency protection, is unlikely to satisfy requirements for long term armouring or protection of houses at the rear of the beach and may still require future emergency works in the absence of any appropriately engineered coastal protection works.

The cost of these works is estimated between $200,000 and $300,000 is estimated would take approximately 2 weeks from approval dependant on weather and site conditions.

The Entrance North

The following map identifies the potential areas that works may be required at The Entrance North:

Figure 2: Aerial image of the Entrance North showing areas generally bound by Hargraves Street to the north and Karagi Reserve to the south, with areas highlighted where works may be required to mitigate immediate erosion risks based on preliminary observations by Council staff.

Potential actions identified at this location have not yet been endorsed by specialist coastal engineers. Staff have identified two likely treatment options to be considered. The first option is preferred based on cost and time but its feasibility remains questionable, in which case the second option may instead need to be pursued: (Note- sand bags may be permissible however must be removed within 90 days under a part 5 approval)

A. Reinstatement of existing rock from the intertidal zone to the toe of the existing embankment (which has retreated landwards following coastal erosion impacts) as shown in the highlighted section of the map above. Preliminary discussions with NSW Public Works – Engineering and Emergency Management have supported this action.

The project would take 4-6 weeks dependant on weather and site conditions. The costs are not clear at this point and would be subject to coastal engineering advice however, to activate machinery on the site to undertake the movement of existing rocks would be in the order of $20, 000 per week. It should be noted that this option may need additional rock placement which is partially covered in option B below.

B. Utilise rock of appropriate size, density and quality to deliver temporary coastal protection works, with a focus on protecting the toe (base) of the erosion escarpment in the most vulnerable areas and fill in gaps between existing defences. This is estimated at $600,000 to $1,000,000 and would take 6-12 weeks subject to weather and site conditions.

6. Legislative considerations and options

Options for lawful coastal protection work attempting to provide some short-term protection during erosion events in coming months are set out in the table below. Advice from a structural engineer and coastal engineer is required to determine:

1. where work is required i.e. which properties are at risk of structural failure if any further erosion occurs and the location of the recommended works for that property (on private land, or public land, or both); and

2. what work is required to provide a level of short-term protection from further erosion for that property without exacerbating risks to other properties (including the beach).

The table below assumes that the recommended works will take the form of one or more of the following:

· beach nourishment

· sandbags for 90 days

· repairs to existing coastal protection works

· new coastal protection works in the nature of placement of rocks or rock bags in locations where no such works already exist

Potential coastal protection work	Who can lawfully do it and in what circumstances	Comment
On public land: 1. Beach nourishment 2. Sandbags for 90 days 3. Repairs to existing coastal protection works	· Council, without development consent but with Part 5 assessment and with consent of owner of the public land if not council.	At the council’s cost
	· Council, adjoining owner, or other government agency pursuant to a direction from Minister during declared state of emergency under the State Emergency and Rescue Management Act 1989 (SERM Act).	Works undertaken by the council would be at the council’s cost.
	· Council or adjoining owner, pursuant to a direction from LEOCON under the SERM Act.	Works undertaken by the council would be at the council’s cost.
On private land: 1. Beach nourishment 2. Sandbags for 90 days 3. Repairs to existing coastal protection works	· Council, the owner, or other government agency pursuant to a direction from Minister during declared state of emergency under the SERM Act.	Works undertaken by the council would be at the council’s cost.
	· Council, owner, or other government agency pursuant to a direction from LEOCON during an emergency under the SERM Act.	Works undertaken by the council would be at the council’s cost.
	· Owner pursuant to an order under s.124 Local Government Act (LG Act)	See attached confidential legal advice.
	· Council, by agreement with owner by resolution where there is an adopted fee and charge for the work, under s.67 of the LG Act. Part 5 approval also required.	Council does not have an adopted fee or charge for such work.
	· Owner can comply with replenishment obligations under any positive covenant registered on title.	See attached confidential legal advice.
On public land: New coastal protection works e.g. rock placements / new rock bag placements in a location where no existing coastal protection work	· Council, pursuant to a direction from Minister during declared state of emergency under the SERM Act	Works undertaken by the council would be at the council’s cost.
	· Council, pursuant to a direction from LEOCON under the SERM Act	Works undertaken by the council would be at the council’s cost.
	· Council, with development consent (and the owner’s consent if council not the owner)	Consent authority is Hunter and Central Coast Regional Planning Panel (HCCRP) . HCCRPP cannot be required to expedite determination. Would be at the council’s cost.
On private land: New coastal protection works e.g. rock placements / new rock bag placements in a location where no existing coastal protection work	· Council or the owner, pursuant to a direction from Minister during declared state of emergency	Works undertaken by the council would be at the council’s cost.
	· Council or the owner, pursuant to a direction from LEOCON	Works undertaken by the council would be at the council’s cost.
	· Council with development consent and by agreement with the owner where there is an adopted fee and charge for the work	Council does not have an adopted fee or charge for such work.
	· Owner pursuant to an order under s.124 LG Act	See attached confidential legal advice.

The legislation which underpins the table above includes the following:

1. State Emergency and Rescue Management Act 1989

(a) Declared state of emergency

· If a declaration is made that a state of emergency exists, the Minister is given powers to give directions to agencies, including the council, and to other agencies (s.36).

· A declaration of emergency requires ‘significant and widespread danger to life or property’.

· If declared, Minister is responsible for controlling and coordinating government agency response.

· The Minister has the power to direct any government agency to ‘do or refrain from doing any act’, or ‘exercise or refrain from exercising any function’. The government agency must comply, and the direction prevails over any other law (s36(2)).

· In addition to the power to direct government agencies, the Minister can direct other persons e.g. the owner to undertake ‘other safety measures’, which relevantly include:

(c) the pulling down, destruction or shoring up of any wall or premises that have been damaged or rendered insecure in an emergency area or any part of an emergency area,

(s.37A)

· The Minister can recover the cost of shoring up premises from the owner and pay it to the emergency services organization that did the work. The council is not a defined emergency services organization.

(a) Emergency

· Under SERM Act the LEOCON can assume control of the response to an emergency if the SES agrees. (s.31(1) and (1B)).

· A declaration of a state of emergency is not required. (s.31(3)), but an ‘emergency’ is required. An ‘emergency’ is defined in s.4 as an emergency due to an actual or imminent occurrence which threatens health, safety or property and requires a ‘significant and coordinated response’.

· The LEOCON can issue directions to the council (s.31(2)). The cost of compliance with a direction issued under section 31 is borne by Council.

· The LEOCON can (like the Minister under a declared state of emergency) “if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons or animals from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a police officer to direct, the doing of any one or more of the following—

(a) …..

(c) the pulling down, destruction or shoring up of any wall or premises that have been damaged or rendered insecure in the danger area or any part of the danger area,

(d) ….

(s.61(1))

· A shoring-up direction under s.61 can be given to the council, or to other persons e.g. owners. The cost of work carried out under a direction under s.61(1)(c) can be recovered from owner of land (s.61) by the Commissioner of Police but not by the council.

2. Coastal Management Act 2016

· Development consent must not be granted for coastal protection works unless consent authority is satisfied that—

(a) the works will not, over the life of the works—

(i) unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or

(ii) pose or be likely to pose a threat to public safety, and

(b) satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works—

(i) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works,

(ii) the maintenance of the works.

(s.27)

3. SEPP (Resilience and Hazards) 2021

· “Coastal protection work” has the meaning in the Coastal Management Act, namely:

(a) beach nourishment activities or works, and

(b) activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters, including (but not limited to) seawalls, revetments and groynes.

· An owner cannot carry out coastal protection works without obtaining development consent. (s.2.16(1)).

· The council can carry out the following coastal protection works without development consent (but environmental assessment under Part 5 of EPA Act is required):

o works identified in the relevant certified coastal management program, or

o beach nourishment, or

o the placing of sandbags for a period of not more than 90 days, or

o routine maintenance works or repairs to any existing coastal protection works

(s.2.16(2)(a)).

· There is currently no certified coastal management program for the Central Coast LGA.

· Accordingly, the coastal protection works that the council can carry out without development consent are:

o beach nourishment, or

o the placing of sandbags for a period of not more than 90 days, or

o routine maintenance works or repairs to any existing coastal protection works.

It is of relevance to note that the presence of a certified Coastal Management Program in this situation would have no bearing on available options to Council in accordance with SEPP (Resilience and Hazards) 2021. Works that are identified within a Coastal Management Program must have some specificity and be typically accompanied by at least concept designs (Council staff have been advised of this requirement by DCCEEW staff) attributable to a particular site to enable other activities via the permitted without consent pathway. There is no expectation that plans of any temporary or emergency type protection works for specific locations would be detailed within a Coastal Management Program for protection of private property. Additionally, regardless of the presence of any certified Coastal Management Program, the only consent pathway (for temporary works or otherwise) available to private owners remains through lodging a development application and seeking development consent. The purpose of Coastal Management Program is to outline actions for Council and other public authorities on public land and not for private protection works on private land.

· The council requires development consent to carry out any other coastal protection works. (s.2.16(2)(b)).

· The consent authority is the Hunter Central Coast Regional Planning Panel.

4. Local Government Act 1993

(a) Land or premises not safe or healthy

· Council can give an order under s.124 to the owner or occupier of land or premises which are not in a safe or healthy condition “to do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition “(order 21 in table to s.124).

· The land or premises the subject of the order must be unsafe or unhealthy. If these circumstances do not exist, any order given is invalid.

· Development consent is not required to carry out works in compliance with an order. (s.138A).

(b) Emergency order

· An order given in an ‘emergency’ and expressed as such does not require a Notice of Intention to be given or that representations by the proposed recipient be considered before the order is given (s.129(2)(b)).

· Where an emergency does not exist, the council would be required to give Notice of Intention to issue the order first.

(c) Works by Council on private land

· Under s.67 of the LG Act the council can do works on private land with the agreement of the owner provided the proposed work can be lawfully carried out. It would not be lawful for Council to carry out works without development consent, where consent is required (i.e. Council could not agree to carry out ‘new’ coastal protection works for which it requires consent).

· Council would therefore be limited to carrying out coastal protection works that council can carry out without develop consent, namely:

· beach nourishment

· the placing of sandbags for a period of not more than 90 days

· routine maintenance works or repairs to any existing coastal protection works

· Under s.67 the council is also prevented from carrying out works on private land unless it charges the approved fee in the adopted fees and charges, or it resolves to charge less than the amount specified in the adopted fees and charges.

· If there is no amount specified in the adopted fees and charges for the proposed work, then arguably the council cannot do the work by agreement with the owner.

Confidential legal advice

Attached as confidential attachment 1 is confidential legal advice which is subject to legal professional privilege, regarding the options for works in the table above, in particular the option of ordering an owner to carry out works under s.124 of the Local Government Act 1993.

Stakeholder Engagement

A letter to the Premier from Council has been sent following the extraordinary council meeting resolution on 6 May 2025, asking for a declaration of a state emergency. Comments in relation to this have been included in the report above.

Should additional appropriate information regarding this matter become available following the finalisation of this report, it will be circulated with the Councillors or added as an addendum to this report.

Financial Considerations

Financial Year (FY) Implications.

The proposal does not have financial implications for the current year or outer years in the LTFP.

Note: This matter is up for consideration and currently has not recommended any specific way forward however has provided options. Some of those options may come with a cost to Council.

Budget and Long-Term Financial Plan (LTFP) Impact.

The FY adopted budget includes funding for this proposal.

Note: This matter is up for consideration and currently has not recommended any specific way forward however should Council resolve to undertake works at Council’s cost, budget will need to be identified at the quarterly review.

Link to Community Strategic Plan

Theme 4: Responsible

Goal H: Delivering essential infrastructure

B-A4: Enhance community safety within neighbourhoods, public spaces and places.

Risk Management

Risk consideration has been included in the body of the report.

Critical Dates or Timeframes

Estimates of construction and delivery have been included in the body of the report. Information in relation to weather events is also included in the body of the report.

Attachments

Confidential and privileged coastal protection legal advice -

Provided Under Separate Cover

D16827605

Item No: 1.1
Title: Disclosure of Interest
Department: Corporate Services
13 May 2025 Extraordinary Council Meeting

Item No: 1.2
Title: Apologies and Attendance by Councillors at Meetings by Audio-Visual Link
Department: Corporate Services
13 May 2025 Extraordinary Council Meeting