A group of plaintiffs who own property along Belongil Beach in New South Wales, Australia sought damages from the local government authority, the Byron Shire Council, to cover the costs of erecting shoreline protections on their parcels and to compensate for lost value to their properties from encroaching seas. Plaintiffs alleged that the need for those protections and the cause of the properties’ partial loss of value was the fault of the Council. In the 1960s and 70s, the Council constructed a form of hard shoreline armoring—“an artificial headland protected by a rock seawall.” Then, between 2006 and 2010, the Council issued draft planning documents (i) prohibiting the plaintiffs from armoring their own segments of shoreline and (ii) proposing a policy of managed retreat in response to rising seas and an encroaching shoreline. The Coastal Protection Act provides that such plans only become final and effective after approval by the New South Wales Minister for Planning; the Council withdrew its draft Coastal Zone Management Plan in May 2011, before the Minister considered it.
Plaintiffs presented two alternative theories in support of their claim: either that the Council was negligent for installing hard shoreline armoring that has since displaced wave action to plaintiffs’ adjacent portions of beach, worsening erosion there; or that the council’s armoring constitutes an instance of public nuisance. Plaintiffs also argued that their injury was compounded by the Council’s issuance and withdrawal of planning documents, and persistent position that managed retreat is the preferred policy response to shoreline encroachment.
After the plaintiffs’ suit survived a motion to dismiss in March 2016, the Council’s insurers, who had been steering the defense in the case, agreed to a settlement. As a result, the court never determined legal liability for the claims alleged. The settlement’s terms bar the Council from removing existing coastal armoring (chiefly rock, concrete, and rubble barriers) on the plaintiffs’ parcels unless the plaintiffs agree to such removal. Should plaintiffs want to add to that armoring, the must apply within one year of the settlement, dated August 2016, and then must make the requested additions within one year of approval of their application. Any subsequent repairs or additions may only be proposed after 20 years, and the Council has not guaranteed that such proposals would be approved.
|03/03/2016||Decision||Download||Grant of plaintiffs' motion to file further amended statement of claim; denial of defendant's motion to strike paragraphs from prior statement of claim.|