The Establishment of Coastal Setback Lines for the Overberg District

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1 Final The Establishment of Coastal Setback Lines for the Overberg District March 2012 A Project for the Western Cape Department of Environmental Affairs & Development Planning Tel: Durban Road, Bellville, 7530


3 Client: DOCUMENT DESCRIPTION Western Cape Department of Environmental Affairs & Development Planning Project Name: The Establishment of Coastal Set-back Lines for the Overberg District SSI Environmental Reference Number: E02.CPT Authority Reference: EADP4/2010 Authors: Tandi Breetzke, Gerard van Weele, Andew Mather and Luke Moore Date: March 2012 SSI Environmental All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, without the written permission from SSI Environmental.





8 1 INTRODUCTION 1.1 Context and background Modernisation and technological progress has brought about modern risks of global consequence. One of these is climate change resulting from rapid alteration of the Earth s atmosphere. Although there remains no doubt that the present climate change phenomenon is anthropogenic in origin, the world is struggling to come to grips with the required social, economic and personal response actions. Over the course of the past few decades, society has progressed from being in denial about the phenomenon to being generally apathetic. Most recently though, the reality and urgency has struck home, and the need for large scale transformation of modern societies has been accepted. It is now realised that sustainable development can only be reached within a changing world environment (and climate) if the state, the market and civil society adopt an understanding of the process of development that involves adjustments of both production and consumption processes, and acknowledge that protection of the environment and natural resources is as fundamental as economic needs and social aspirations. The impacts of global climate change will be most acutely felt in coastal areas, the dynamic zone where oceanic and terrestrial forces meet. The coastline of South Africa has witnessed a marked increase in the intensity and frequency of extreme storms in recent years, bringing issues such as coastal erosion and shoreline retreat into sharp focus, and elevating these issues onto policy agendas countrywide. The impacts of rising sea levels and extreme events have potentially devastating implications for development and development planning and therefore coastal erosion, increased intensity and frequency of flooding and wind generated storm surges must be planned for as a matter of urgency (Roets & Duffel-Canham, 2009). FIGURE 1: WAVES BREAKING OVER THE GANSBAAI HARBOUR WALL, 2008 (IAN FOURIE) 1 INTRODUCTION SSI Environmental

9 The only potential solution to these unpredictable events is the proactive determination and implementation of realistic development set-back lines, whether the land affected is urban, rural or agricultural in nature (Roets & Duffel-Canham, 2009). Roets & Duffel-Canham (2009) define a development set-back as the amount of open space that should be left between buildings (and other infrastructure) and the shoreline. A set-back area is further defined in the Shore Protection Manual (1984) as a strip along the coastal zone where certain development activities are prohibited or significantly restricted. Set-backs are increasingly being used as a means to regulate and prevent insensitive, inappropriate and non-sustainable development in sensitive coastal environments and to reduce the risks posed by climate change. 1.2 Objective of the Project With climate change and the dynamic nature of coastal zones in mind, the prediction of sea level changes and calculation of the related risk to coastal communities have become necessities in the face of the potential extensive impact of sea level rise-related storms and storm surges on the coastal zone especially in the Western Cape Province. This project was conceived as part of a response to the concerns, and to serve as a pilot study for the application of the previously determined provincial methodology for the determination of coastal set-back lines. Specifically, the project initially proposed to establish two commonly accepted setback lines for the Overberg District Municipality, based on expert contributions and public opinion, for adoption by the Western Cape Department of Environmental Affairs & Development Planning (DEADP) as prescribed by the Integrated Coastal Management Act, 2008 (Act No. 24 of 2008). Both the National Environmental Management: Integrated Coastal Management Act (Act No. 24 of 2008, ICM Act) and the NEMA amended EIA Regulations (18 June 2010) propose and make provision for the designation of set-backs. Set-backs, which can be proposed for various reasons, are intended in this instance as a tool to prevent insensitive and inappropriate development of the sensitive and often vulnerable coastal environment. The Western Cape Department of Environmental Affairs & Development Planning, in addition to a project in respect to generating a Risk Assessment Model which can highlight potential threats associated with sea level rise (SLR) and floods for the Overberg and West Coast District Municipalities, appointed SSI in collaboration with Andrew Mather and Cormac Cullinan to establish coastal set-back lines for the Overberg District Municipality. The three specific deliverables proposed and agreed to, are: The refinement of the set-back lines methodology previously developed for the Western Cape through means of a pilot implementation phase in the Overberg District. This manifests in the form of the development of two set-back lines as suggested by the provincial methodology (coastal processes line or no development line and a limited or controlled development line); Public participation in respect to the determination of the coastal set-back line; and Development of draft regulations applicable to the coastal set-back line. This report, with its accompanying GIS mapping and draft regulations, is the final product of this appointment. It details both the refined methodology for the practical determination of coastal set-back lines, and the actual set-back lines for the Overberg District. As a pilot study, it acknowledges that there may still be questions surrounding the practical application of the concept of coastal set-back lines, but all effort has been made to provide direction and guidance for similar future studies. SSI Environmental INTRODUCTION 2

10 1.3 Provincial Methodology for the Delineation of Coastal Set-backs As indicated above, this study represents the first full-scale pilot application of coastal set-back lines for the Western Cape. It is preceded by a study conducted during 2010 by WSP Africa Coastal Engineers on behalf of the Coastal Management Unit of DEADP to determine a standard methodology for the delineation of coastal set-backs in the province. The study, Development of a Methodology for Defining and Adopting Coastal Development Setback Lines, aimed to ensure consistency in the application of the coastal set-backs for the Western Cape, and was based on two small study sites in the Cape Town area. The 2010 Western Cape Coastal Development Set-back Lines Methodology project differentiates between a coastal erosion set-back and a development set-back, and ultimately describes a methodology for the determination of a coastal processes/ no development line and a limited development line that conflates the erosion and development set-backs. In terms of the Western Cape Province s initial Coastal Development Set-back Lines methodology, therefore, two coastal set-back lines are envisaged: A no development/coastal process set-back line. This line proposed to define the limit of the coastal area seaward of which any development is likely to experience unacceptable risk of erosion, flooding by wave action and/or unacceptable maintenance of wind-blown sand accumulations. A limited/controlled development set-back line. This line proposed to define areas where some limited and/or controlled development may occur that accommodates requirements of biodiversity, heritage and other aspects not related directly to coastal processes. This line is situated on or landward of the no development/coastal processes set-back line. Conceptually, this designates a hazard zone adjacent to the water s edge as a no development zone, a managed development area immediately outside the risk zone, and lastly a zone of minimum regulation beyond that (Figure 2): FIGURE 2: CONCEPTUAL STRUCTURE OF COASTAL SET-BACK LINES 3 INTRODUCTION SSI Environmental

11 1.4 Product Structure Apart from this project report, the project delivered a spatially referenced electronic map of the coastal setback lines, as well as a report on the stakeholder engagement process. The complete product of this project therefore consists of five components: 1. Project Report (this document); 2. Coastal Set-back Lines as delineated on a Geographical Information System (GIS) platform; 3. The same GIS data formatted for display in Google Earth ; 4. A Stakeholder Engagement Report (to be read as an Annexure to this document); and 5. Draft Regulations (to be read as an Annexure to this document). The different components can be obtained from the Provincial Government of the Western Cape, in particular the DEADP. SSI Environmental INTRODUCTION 4

12 2 LEGAL FRAMEWORK Managing human activities in the coastal zone has taken on a whole new meaning with the implementation of a legal and administrative framework that promotes cooperative, coordinated and integrated coastal management, protects the natural coastal environment as a national heritage; manages coastal resources in the interests of the whole community; promotes equitable access to the resources and benefits provided by the coast; and fulfils South Africa s obligations under international law. 2.1 The Integrated Coastal Management Act, The key legal driver in respect to this project is the National Environmental Management Integrated Coastal Management Act 2008 (Act No. 24 of 2008) (here in after referred to as ICM Act), and specifically section 25 of this Act. As a specific environmental management Act (SEMA), under the over-arching umbrella of the National Environmental Management Act (NEMA), the ICM Act must be read in conjunction with the NEMA. Further, the resolution of any conflicts arising from the implementation of the ICM Act should be dealt with in terms of Chapter 4 of the NEMA, which provides for fair decision-making and conflict management through processes of conciliation, arbitration and investigation, among others. The ICM Act makes it clear that if the conflict relates to a coastal management issue, the ICM Act will prevail. Further, any legislation that will directly or indirectly amend the ICM Act may only be introduced by the Minister of Environmental Affairs, or after that Minister has been consulted on the proposed legislation (Celliers, L., Breetzke, T., Moore, L. & Malan, D., 2009). The coastal zone, arguably one of South Africa s key environmental, social and economic assets, is fraught with management complexities, as the ecological complexity and distinctiveness of the coastal area is an attribute matched only by its attractiveness for human settlement and resource utilisation. This is highlighted by the reality that at present, approximately 41% of the world s population live and work within 100 km of the coastline (Celliers, et al., 2009). This environmentally sensitive spatial area is not only a major National and International tourist attraction but also home to numerous (often conflicting) activities such as manufacturing, fishing, agriculture and recreation as well as home to many of this country s citizens, ranging from poorer Zululand on the east coast to the upmarket Hermanus on the Cape Coast. If the impact of human behaviour and, particularly the impacts associated with unsustainable practices, in this narrow coastal strip are not properly managed and coastal resources are subsequently overused, the coastal zone will degenerate and ultimately detract from the essence which makes it such a valuable and economically viable asset. In order to ensure its sustainability, including that of existing and future developments, and to ensure that the long term benefits derived from this valuable resource are not lost, the coastal zone needs to be managed in both a sensible and integrated way. 1 This, and other sections of the report that deal with the ICM Act should be read in conjunction with the ICM Act Amendment Bill that was published for comment on 25 November 2011 in Government Gazette No LEGAL FRAMEWORK SSI Environmental

13 2.1.1 The Coastal Zone Chapter 2 of the ICM Act defines the components of the coastal zone in South Africa and deals with its spatial aspects, definitions and legal status. Chapter 2 of the ICM Act proposes to regulate human activities within, or that affect the coastal zone which comprises coastal public property (mainly Admiralty Reserve and land below the High-Water Mark), the coastal protection zone (an area along the inland edge of coastal public property), coastal access land (which the public may use to gain access to coastal public property), special management areas, and includes any aspect of the environment on, in and above them. The User Friendly Guide to the ICM Act of South Africa developed by SSI in conjunction with the National Department of Environmental Affairs, and which is often referenced in this report, highlights the potential conflict arising from the amendment of boundaries of the coastal zone due predominantly because of the lack of a universally acceptable and consistent definition. The understanding of what the coastal zone is or where it is varies considerably depending on the nation, organisations or individual, and varies in seaward and terrestrial boundary, at estuarine influences; it may be a relative term or even refer to absolute boundaries that can be mapped. Regardless of this confusion, the ICM Act is the means by which this confusion is resolved by introducing uniform national definitions. It was agreed at the early stages of enactment of the ICM Act that it was critical for practical and enforceable regulations to set the stage for a common understanding of the boundaries of the coastal zone. Chapter 2 of the ICM Act deals with the definition and legal status of proposed coastal set-back lines, the subject matter of this report and appointment The Coastal Protection Zone 2 The coastal protection zone or CPZ, consists of a continuous strip of land, starting from the High Water Mark (HWM) and is most commonly, and incorrectly, defined as extending either 100 metres inland in developed urban areas zoned as residential, commercial, or public open space, or 1000 metres inland in areas that remain undeveloped or that are commonly referred to as rural areas. In terms of the ICM Act, the CPZ legally consists of: Sensitive coastal areas, as defined by the Environment Conservation Act (Act No. 73 of 1989, section 21 [1]); Any part of the littoral active zone that is not coastal public property; Any coastal protected area, or part of such an area, which is not coastal public property; Any rural land unit that is situated within one kilometre (1000 metres) of the HWM which is zoned as agricultural or undetermined; Any urban land unit that is situated completely or partly within 100 metres of the HWM; Any coastal wetland, lake, lagoon, [river] 3 or dam which is situated completely or partially within a land unit situated within 1000 metres of the HWM that was zoned for agricultural or undetermined use, or is within 100 metres of the HWM in urban areas Any part of the seashore which is not coastal public property (including all privately owned land below the HWM); Any Admiralty Reserve which is not coastal public property; and 2 Discussion informed by Celliers, L., Breetzke, T., Moore, L. & Malan, D. (2009) 3 Proposed inclusion as per the ICM Amendment Bill SSI Environmental LEGAL FRAMEWORK 6

14 Any land [adjacent to an area referred to in sub-sections (a) to (h)] 4 that would be inundated (submerged or covered) by a 1:50 [100] 5 year flood or storm event (this includes flooding caused by both rain storms and rough seas). The coastal protection zone is established to manage, regulate and restrict the use of land that is adjacent to coastal public property, or that plays a significant role in the coastal ecosystem. More specifically, the coastal protection zone aims: To protect the ecological integrity, natural character, and the economic, social and aesthetic value of the neighbouring coastal public property; To avoid increasing the effect or severity of natural hazards To protect people, property and economic activities from the risks and threats which may arise from dynamic coastal processes such as wave and wind erosion, coastal storm surges, flooding and sealevel rise; To maintain the natural functioning of the littoral active zone; To maintain the productivity of the coastal zone; and To allow authorities to perform rescue and clean-up operations. The boundary of the CPZ, as well as all other new ICM Act coastal boundaries, may and can be adjusted if they are uncertain or undefined; are subject to competing claims; have shifted due to natural or artificial processes; or if adjustment or determination will better achieve the ICM Act objectives. The adjustment process is however, not a simple process and the Act requires authorities to consider the concerns and representations of interested and affected parties (I&AP s) as well as the interests of any local community affected by the boundary or amendment to a boundary. The applicable authority needs to consider any coastal specific planning (applicable coastal management programme) prior to amending boundaries and such amendments then need to be reflected on municipal zoning schemes. Thereafter the relevant Registrar of Deeds needs to be notified in writing and provided with a description of the land involved. The notification must be accompanied by a diagram signed by a surveyor who is approved in terms of the Land Survey Act. The relevant Registrar of Deeds is then required to make note of such determination, adjustment or demarcation. The CPZ, by default, forms the landward boundary of the Coastal Zone Coastal Set-back Lines in terms of the ICM Act Coastal set-back lines, as detailed in the ICM Act, are prescribed boundaries that indicate the limit of development along ecologically sensitive or vulnerable areas, or an area that poses a hazard or risk to humans (CMPP, 2000). The coastal set-back line may even be situated outside the coastal zone. The coastal set-back line prohibits or restricts the construction, extension or repair of structures that are either wholly or partly seaward of the line. The intention of the coastal set-back line is to protect or preserve coastal public property; coastal private property; public safety; the coastal protection zone; and the aesthetics of the coastal zone (Celliers, et al. 2009). 4 Proposed inclusion as per the ICM amendment Bill 5 Proposed amendment as per the ICM amendment Bill 7 LEGAL FRAMEWORK SSI Environmental

15 The establishment of coastal set-back lines is a provincial responsibility but the MEC can only declare such a set-back line(s) after consultation with Municipalities and interested and affected parties (I&APs). The MEC must communicate this by publishing regulations in the Gazette. Once determined this line must be delineated on the map or maps that form part of the municipal zoning scheme. This is done so that the public may determine the position of the set-back line in relation to existing cadastral boundaries (Celliers, et al. 2009). The coastal set-back is proposed to give specific direction in respect to locating the future development footprint and coastal planning schemes will zone the coastline in respect to proposed activities and land use. Effective coastal governance structures should ensure that future decision making is in line with the National Coastal Management Programme (CMP) and its proposed norms and standards to assist decision makers in respect to best practice. Coastal set-back lines may be established for various reasons and there may be more than one set-back line in any given area. For example, one set-back line may be an anticipated erosion set-back line, while another may relate to aesthetics and control the height of buildings to protect a specific scenic landscape. Set-back lines will assist in controlling development along an ecologically sensitive or vulnerable area, or any area that poses a hazard or risk to humans (DEAT, 2000). The ultimate intention of the coastal set-back line, as defined in the ICM Act, is to protect or preserve: Coastal public property such as beach amenities and other infrastructure such as parking ; Coastal private property such as private residences and business properties; Public safety in the face of extreme climate and other natural events; The coastal protection zone; and The aesthetics or sense-of-place of the coastal zone Implementation of land-use legislation in relation to the CPZ National, Provincial or Local Government responsible for legislation that regulates planning and land use management within the coastal zone and specifically the CPZ must apply such legislation in a way that promotes the principles of cooperative governance and gives effect to the reasons for the establishment of the CPZ, as detailed in above. The ICM Act currently requires that no organ of state may allow land that is part of the CPZ to be used for anything that may have an adverse effect on the coastal environment without first considering an environmental impact assessment report. This clause has obvious implications in respect to the designation of set-back and other lines, as proposed in this project, but is proposed to be excluded from the ICM Act via the ICM amendment Bill. 2.2 National Environmental Management Act and the Environmental Impact Regulations Several mechanisms through which regulation of development and protection of the inherent resource value of the coastal zone can be promoted are provided for in NEMA. Apart from assigning a general duty of care in terms of Section 28, it also provides for a range of regulatory processes in Chapter 5, including a requirement for Environmental Impact Assessment (EIA) authorisations. SSI Environmental LEGAL FRAMEWORK 8

16 2.2.1 General Duty of Care General duty of care is contained in section 28 of NEMA and is titled Duty of care and remediation of environmental damage. Subsection (1) imposes a duty on every person who causes, has caused or may cause significant pollution or degradation of the environment to take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment. Importantly, this section requires that pollution or degradation be determined as significant, but once significance has been established, the duty provides a proactive mechanism to the extent that it requires measures to be taken before pollution occurs. In other words the existence or threat of a risk of pollution is sufficient to trigger the imposition of the duty - even if that risk emanates from the undertaking of a reasonable activity. It is also clear that the duty applies to current and future pollution or degradation (or potential pollution or degradation) as well as to pollution or degradation which has already occurred. (The provision therefore has retrospective application). WHEN IS POLLUTION OR DEGRADATION SIGNIFICANT? NEMA does not define what constitutes significant pollution or degradation. In the case of Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products 2004 (2) SA 393 (E), the Court, in discussing this issue, held that the assessment of what is significant is a subjective one and the standard is not a particularly high one. Glazewski referred to this question and remarked that [t]his must be considered in the light of the constitutional right to an environment conducive to health and well-being, as well as the relevant principles in the NEMA Glazewski then refers specifically to the precautionary and polluter pays principles and continues: If so viewed it is suggested that the threshold level of significance is not particularly high (Jan Glazewski, Environmental Law in South Africa, Butterworths, First Edition, 2000: 178. Also see the Second Edition, 2005:150) In the context of the imposition of coastal management and control measures, the general duty of care therefore extends to any person whose actions may directly or indirectly pose a threat to coastal sensitivities and environmental integrity. The ICM Act reiterates this general applicability by specifically including coastal environments in the interpretation of the wording of NEMA. Subsection 1(b) of Section 58 indicates that: For the purposes of the application of section 28 [of NEMA] a reference in that section to - significant pollution or degradation of the environment must be read as including an adverse effect on the coastal environment; environment must be read as including the coastal environment; and environmental management plan must be read as including a coastal management programme applicable in the area concerned. If the Minister believes that an impact or activity is harmful to the environment or has an adverse effect, he or she may issue a notice in the Government Gazette to that effect. This presumed activity or impact is 9 LEGAL FRAMEWORK SSI Environmental

17 considered adverse to the environment until such time as the contrary can be proven. A written notice in the Government Gazette that refers to a person as detailed in the relevant section of the NEMA must be regarded as including: Users of coastal public property; Owner, occupier or person in charge of the property in question; Owner or person in charge of a vessel, aircraft or structure at sea, or driver of a vehicle that is causing; or may cause a negative effect; Operator of a pipeline that ends in the coastal zone; or Anyone discharging (releasing) a substance causing or which may cause a negative effect Environmental Impact Assessment Regulations, 2010 The Environmental Impact Assessment Regulations, 2010 (Regulations No. R.543 to R.546) published under sections 24(5), 24M and 44 of NEMA aim to introduce regulatory control over specific activities that could pose a threat to sensitive environmental resources or locations. Many activities in coastal areas, especially activities along the shoreline and around estuaries, necessarily fall within the ambit of these regulations due to their inherent sensitivities. The specific activities and sensitive features or locations that trigger the need to obtain authorisations under the EIA Regulations, 2010, are specified in Regulations R.544 to R.546 commonly known as the Listing Notices. Once the need to obtain authorization from a competent authority is triggered, an Environmental Authorisation application process (as specified in Regulation R.543) must be completed. These decisions are generally aligned with NEMA principles or the local planning and environmental management policies, but according to the ICM Act, currently have to comply with a number of specific coastal management principles. These are provided in Table 1 below, as adapted from Celliers et al. (2009). It is noted that the ICM Act amendment Bill proposes that such principles should, in future, be applied at the respective authority s discretion as factors to be taken into consideration prior to making a decision. TABLE 1: PRINCIPLES TO INFORM ENVIRONMENTAL AUTHORISATIONS ICM Act Section 6 Section 63(1) PRINCIPLES What must the competent authority take into account when considering an application for environmental authorisation? Representations made by the applicant and by interested and affected parties; The applicant s past record in complying with similar authorisations; If coastal public property, the coastal protection zone or coastal access land will be affected by the proposed action; Estuarine management plans, coastal management programmes and coastal management 6 As indicated earlier, this should be read in conjunction with proposed amendments to the ICM Act. SSI Environmental LEGAL FRAMEWORK 10

18 ICM Act Section 6 Section 63(2) Section 63(3) PRINCIPLES objectives; The socio-economic impact if the activity is authorised or not authorised; The likely impact on the coastal environment including the cumulative effect (collective effect); The likely effect of coastal processes (such as wave, current and wind action, erosion, accretion, sea-level rise, storm surges and flooding) on the activity; and The objectives of the ICM Act which apply to the activity. Under what circumstances may the competent authority NOT issue an environmental authorisation? If the development/activity: is situated within coastal public property and is inconsistent with the objective of conserving and enhancing coastal public property for the benefit of current and future generations; is situated within the coastal protection zone or coastal access land and does not further the purposes for which this land was designated; is likely to cause irreversible or long-lasting adverse effects on the coastal environment that cannot be properly mitigated; is likely to be significantly damaged or affected by dynamic coastal processes; Will prejudice the achievement of any coastal management objective; or Will not be in the interests of the whole community. Under what circumstances may the competent authority allow activities or developments in coastal public property, the coastal protection zone or coastal access land? Section 64 If the proposed activity or development cannot be located elsewhere; or If the proposed activity or development will provide important services to the public when using coastal public property, the coastal protection zone, coastal access land or a coastal protected area. Activities that cannot be approved by the competent authority may under certain circumstances be referred to the Minister for consideration. The Minister may, after consultation with the MEC, issue such an authorisation if he or she believes that: Allowing the proposed activity to take place will be in the interest of the whole community, despite the negative effects on the coastal zone; and On condition that any irreversible or long-lasting effects can be mitigate Alignment of the ICM Act set-backs and the EIA Regulations set-backs Generally speaking, the triggers for the EIA authorization process as described in the Listing Notices the socalled listed activities are considered to be too insensitive to local conditions and current levels of coastal development. The coarse application of the EIA triggers gives rise to significant resentment from property owners who have to comply with the onerous EIA regulations, and unhappiness from permitting officials who have to dedicate resources to applications for EIA authorization where a particular outcome is effectively predetermined by the location or context. 11 LEGAL FRAMEWORK SSI Environmental

19 Set-back line triggers, including coastal 7 development set-backs, are used in all three Listing Notices but predominate in Listing Notice 3 which screens activities in terms of location, size and local conditions. Typically, the listing notices indicate that a particular level of EIA is required for particular activities, but also indicate situations in which the EIA authorization is not required for that particular activity. Where the exclusion relates to a development set-back, the activity listing resembles something like this: Activity X within the sea, an estuary, the littoral active zone or a distance 100m inland of the high-water mark of the sea or an estuary, whichever distance is the greater, but excluding such activities where they will occur behind a development setback line. The term "development set-back" is defined in the Regulations as: development setback means a setback line as defined or adopted by the competent authority and where none has been defined or adopted it will be assumed that no setback line applies. The activities are usually related to construction or earth moving, or may be specific in terms of a type of facility, and the default threshold is sometimes extended to 1000m in so-called rural areas. The demarcation of a development set-back is therefore conceived as an important tool in legitimizing the use of EIA as an environmental management measure in coastal areas since it will limit the instances in which an EIA is required for a non-sensitive development. One of the expected outcomes of the determination of coastal set-back lines by the DEADP (under the auspices of the ICM Act) is the determination of a line that can be used to refine the coarse triggers either in terms of less regulatory control where it doesn t add value, or more control where sensitive areas do not have sufficient protection.. An important aspect of the EIA trigger refinement process is that the regulatory system is set up in a way that allows set-backs to reduce the area of applicability of the EIA controls, but that does not make provision for the extension of the EIA zone. This is confirmed in the response on Interpretation Query IQ/11/0373 as received from the National Department of Environmental Affairs: For practical reasons the three listing notices makes provision for the reduction of the scope of listed activity in allowing / including an exclusion in events where such activities will occur behind the development setback line. If no such development setback line has been defined or adopted by the competent authority, such (development setback line) does not exist for the purposes for the EIA Regulations and the exclusion provided for in the listed activity cannot apply until such time that such setback lines have been adopted or defined. This (the listed activity as is without any exclusions) is the maximum ambit / scope of the relevant listed activity. In other words, the relevant exclusion (once development setback lines have been defined or adopted) can only reduce the scope / ambit of the relevant listed activities - it cannot increase the scope of the relevant listed activities. 7 Located spatially in the coastal zone SSI Environmental LEGAL FRAMEWORK 12

20 There are critical differences though in how set-backs are conceptualised in the EIA Regulations and the ICM Act. Critically, a single EIA-related set-back line is envisaged in the EIA Regulations, 2010, as a landward boundary of a controlled development zone, whereas in the ICM Act, provision is made for a number of different coastal set-back lines. The multiple ICM Act coastal set-backs provide for a more textured and refined application of the concept as a coastal management tool (Table 2). The purpose of control also differs from that provided for in the EIA Regulations, as the proposed coastal setback(s) delineates a range of control from non-negotiable development prohibition to oversight seawards while the development setback delineates the landward boundary of EIA requirements. TABLE 2: CONCEPTUAL DIFFERENCES BETWEEN EIA AND ICM SET-BACKS EIA Regulations ICM Act Number of lines Single line Multiple lines Purpose Level of control Landward boundary of a controlled development zone Determined by EIA decisions and ICM prescriptions Different zones with different management controls Ranges from non-negotiable development prohibition to oversight The challenge therefore lies in identifying an appropriate coastal set-back line that is informed by coastal processes and sensitivities, but specifically tailored to facilitate customisation of the EIA regulatory scheme whilst at the same time promoting the objectives of integrated coastal management. 13 LEGAL FRAMEWORK SSI Environmental

21 3 PROJECT METHODOLOGY & REFINEMENT OF THE WESTERN CAPE COASTAL SET-BACKS MODELLING METHOD Guided by the work done as part of the provincial coastal development set-backs methodology project, the Terms of Reference for the Overberg Coastal Set-back Lines Project (this study), envisaged the determination of the two lines recommended by the provincial standard i.e. the coastal processes/no development line and a limited development line on the basis of specific base data components and a defined modelling process. The outline of the Western Cape Coastal Development Set-back Lines Methodology is shown in Figure 3. However, in the interest of keeping costs to within reasonable limits and in order to obtain robust results in the absence of suitable long-term data sets on coastal processes in the study area, certain refinements of the provincial methodology were proposed and accepted for the Overberg project. The refinements relate only to which procedural steps used, and base data sets employed, specifically in terms of an aerial topography survey, a wave atlas, a regional surge model and a storm erosion study (shown in green boxes in Figure 3). FIGURE 3: OUTLINE OF THE WESTERN CAPE COASTAL DEVELOPMENT SET-BACK METHODOLOGY The two set-back lines as envisaged in the Western Cape Coastal Development Set-back Lines Methodology were, however, accepted as the deliverables for the Overberg study. Similarly, in terms of time horizon, the 100 year time horizon as set in the provincial approach was applied. SSI Environmental PROJECT METHODOLOGY & REFINEMENT OF THE WESTERN CAPE COASTAL SET-BACKS MODELLING METHOD 14

22 The refinements to the Western Cape approach are further detailed below. 3.1 Identification of information and datasets Aerial photography A Light Detection and Ranging (LiDAR) survey was included in the project as this was an essential requirement in determining the wave run up element of the analysis. Existing ground topography information is not considered accurate enough to determine the beach and rocky shore slopes, and the study required an accurate digital elevation model upon which to model the simulation results. A LiDAR survey WAS included in the project Wave data for the region Sufficient wave statistics were available from the wave buoys at the major ports and well as hindcast data available from reports and presentations available on the internet to provide statistically accurate outputs for wave run up modelling. Rocky shores required a wave height at the toe of the rocky slope and in this case, a simple one dimensional SWAN model was used to transform the wave heights from the off shore location to the near shore, enabling this to be used for the rocky wave run up model. Therefore a detailed Wave Atlas was NOT required Surge Model Surge is only a major factor when there is a wide continental shelf that results in raised water levels along the coast and small waves reaching the shoreline. In Europe, storm surge can be as much as 5m with small waves. However, in South Africa we have the opposite of the European conditions in that we get small amounts of surge and high waves. In the wave run up model, the slope of the bathymetry was used. This approach included the amount of wave set up which is the largest component of storm surge. The other factors used being wind and barometric setup. A regional surge model was therefore NOT required Storm erosion study A storm erosion study was proposed by the Western Cape Methodology to determine the extent of the 100 year erosion effects on beaches. The most common model used to determine this is the SBEACH model developed by Kraus and Larsen (U.S. Corp of Engineers). This model gives good results provided it is calibrated against data collected in the area from the beach response to a range of storm events. In the case studies undertaken in support of the Western Cape methodology, the authors of the study (WSP Africa Coastal Engineers) acknowledged the lack of calibration data and used the default parameters for SBEACH. Apart from the Durban coastline, there is no long term monitoring programme along the South 15 PROJECT METHODOLOGY & REFINEMENT OF THE WESTERN CAPE COASTAL SET-BACKS MODELLING METHOD SSI Environmental

23 African coast that regularly measures beach profiles before/after storms. The results from the SBEACH model are therefore of limited value under these circumstances. The alternative was to determine a sensible storm erosion allowance based on local knowledge - as Theron et al. (2010) has indicated, this is of the order of 10 to 80m along our coastline. This was the cheapest and most cost effective route to go in these circumstances. A regional storm erosion study was therefore NOT required. 3.2 Coastal Processes/Erosion Line All the alterations to the Western Cape methodology were related to the determination of the erosion line (Box A in Figure 3) and were used in conjunction with the remaining procedural steps outlined in the Western Cape method to generate the wave/erosion hazard line that is commonly used to determine the no development set-back line. Consequently, this line was determined by conceptually moving from the beach inland to a point where the physical processes no longer have an impact on the land. This is achieved as follows: 1: WAVE HEIGHT Determine the offshore and nearshore wave height of the 1:10 year (HWM) and 1:100 year storms 2: WAVE RUN UP Determine the position of the storm wave run-up on sandy and rocky shores respectively 3: SLR (BRUUN S RULE) 4: LONG TERM BEACH RETREAT 5: STORM BEACH RETREAT 6: SEDIMENT PATHWAYS The amount of shoreline retreat from 1m of sea level rise Long term shoreline retreat trends based on analysis of old aerial photography. If the coastline is stable or has built up over time, assume no retreat The amount of short term beach erosion for a 1:100 year storm. For rocky shores, assume the top of steep slopes. For sandy shores assume 20m Identify potentially mobile dunes on old aerial photographs and advance line inland to most inland position of dunes 7: DUNE COLLAPSE Provision for slip failure of dunes or unstable cliffs 8: ESTUARIES A buffer area around estuaries (not done for the Overberg due to data deficiency) FIGURE 4: PROCEDURAL STEPS FOR DETERMINING THE COASTAL PROCESSES LINE The line determined, which is the furthest inland line of all the steps above, is by definition the Physical Processes/Erosion Line. SSI Environmental PROJECT METHODOLOGY & REFINEMENT OF THE WESTERN CAPE COASTAL SET-BACKS MODELLING METHOD 16

24 3.3 Limited Development Set-back The Establishment of Coastal Set-back Lines for the Overberg District The Limited Development Line was conceptualised as the landward boundary of the CPZ. It includes all sensitive areas along the coast, both in terms of biophysical sensitivity and socio-economic value. This implies that, as a minimum, it contains the area demarcated by the Long Term Erosion Line as potentially at risk from coastal proceses. PHYSICAL PROCESS / HAZARD LINE ENVIRONMENTAL SANBI biophysical sensitivities layers HERITAGE Areas of preservation SOCIAL Coastal access issues ECONOMIC Areas which need to be closer to the sea FIGURE 5: ASPECTS TO CONSIDER IN DETERMINING A LIMITED DEVELOPMENT LINE / COASTAL PROTECTION ZONE BOUNDARY In areas where considerable development has occurred and there is no longer any functional natural environment, the Limited Development Set-back is recognised as effectively the same line as the Coastal Processes Set-back. In this case the lines are superimposed on top of each other. Where a functional natural environment exists, for example a declared nature reserve, the inland boundary of the natural environment is recognised as the Limited Development Set-back. Finally, due to considerations related to practical implementation, the lines are aligned with defined property boundaries or distinct landmarks. This allows an exact demarcation to take place, and reduces the likelihood of subsequent arguments over its location. 17 PROJECT METHODOLOGY & REFINEMENT OF THE WESTERN CAPE COASTAL SET-BACKS MODELLING METHOD SSI Environmental

25 4 DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT The coastal set-back lines for the Overberg District were determined through the application of a consistent delineation methodology applied along the study area coastline. The process, as it unfolded, is described below. 4.1 Data Sources The data used for the various modelling processes in this study were sourced as: Preliminary Work The preliminary work included the collection of relevant data and a review of existing boundaries and uses using aerial photos and other relevant sources of information Aerial photography A number of sets of aerial photographs covering the study area or portion thereof were obtained from the National Geo-spatial Information (NGI), a component of the Department of Rural Development and Land Reform (DRDLR) (previously the Chief Directorate: Surveys and Mapping). The earliest set was the 1938 series, which was very sparse. The next was dated 1961 but, and while it had improved coverage, the quality of the black and white imagery was extremely poor and it was extremely difficult to reconcile topographic details. The next complete set of imagery was the 1973 set followed by the 2005 imagery. The possibility of the latest 2010 aerial photography being available for this study unfortunately did not materialize due to delays in rectification of these images by the NGI. All photography of the coastline was geo-referenced where necessary with particular emphasis placed on sections of sandy shoreline, where trends in long-term beach retreat/accretion were identified LiDAR A LiDAR survey was undertaken and was used to determine the wave run up element of the analysis as well as to create the accurate digital elevation model upon which the simulation results were modelled upon. Existing ground topography information was not considered accurate enough to determine the beach and rocky shore slopes Wind and Wave data for the region The winds in the study area are predominantly from the eastern and western directions. The westerly winds are associated with storms traversing from the Atlantic to the Indian Oceans and are dominant only in the wetter winter months. During the spring and summer, the drier easterly winds are dominant. Waves emanating from the southwesterly quarter are the dominant incoming offshore waves. These waves are reduced thorough the processes of diffraction and refraction with the result that the inshore wave height and direction is significantly different to the offshore conditions. A simple one dimensional SWAN model was used to transform wave heights from off shore locations to the near shore and then used for the sandy and rocky wave run up model. Wave statistics from wave buoys at the major ports as well as hindcast data provided statistically accurate outputs for this wave run up modelling. SSI Environmental DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT 18

26 4.1.5 Storm erosion study The Establishment of Coastal Set-back Lines for the Overberg District A sensible storm erosion allowance, based on local knowledge, as Theron et al. (2010) has indicated, of 20m, was applied. 4.2 Determining the coastal set-back lines Step 1: Determine 1:10 and 1:100 year storm wave height for the Overberg coastline The 1:10 and 1:100 year storm wave height and period was determined using available wave statistics. There are a number of wave recording locations in the region as shown in Figure 6. The period of data varies between the sites and as a result the wave height statistics vary slightly. (Image: 2011 Google, 2011 GeoEye, 2011 Europa Technologies, 2011 AfriGIS (Pty) Ltd.) (Data: SIO, NOAA, U.S. Navy, NGA, GEBCO) FIGURE 6: WAVE RECORDING STATIONS ALONG THE SOUTHERN CAPE COASTLINE Extreme wave analysis statistics from recent coastal engineering and oceanographic studies were also reviewed. The results of several available studies are presented in Table 3, Table 4 and Table 5: TABLE 3: EXTREME WAVE ANALYSIS AT SLANGKOP, STATISTICAL METHODS AND SOURCE Wave return period Recorded Significant Method Report (1 in x years) Wave Height (m) 1: Extreme 1 (MacHutchon, 2006) 1: : : DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT SSI Environmental

27 TABLE 4: EXTREME WAVE ANALYSIS AT CAPE TOWN (NCEP AND SLANGKOP), STATISTICAL METHODS AND SOURCE Wave return period Recorded Significant Method Report (1 in x years) wave height (m) 1:1 9.1 Fisher-Tippet (Theron et al. 2010) 1: : : : : TABLE 5: EXTREME WAVE ANALYSIS AT MOSSEL BAY (NCEP), STATISTICAL METHODS AND SOURCE Wave return period Recorded Significant Method Report (1 in x years) wave height (m) 1:1 8.7 Fisher-Tippet (Theron et al. 2010) 1: : : : : From the evaluation of the results of extreme wave statistics presented in Table 3, Table 4 and Table 5 above, it was decided that due to the conservative approach of this study, the effects of climate change should be incorporated and thus the extreme 1:100 year offshore wave conditions used were H o = 15.4m. The 1:10 year offshore wave height used to determine the current High Water Mark was 11.2m. This is summarised in Table 6 below. TABLE 6: WAVE HEIGHTS SELECTED FOR THE STUDY Wave return period (1 in x years) Cape Town Recorded Significant wave height (m) Mossel Bay Recorded Significant wave height (m) 1: in 10 year wave height selected for this study (m) 1 in 100 year wave height increase for Climate Change (17%) (m) 1: : : : : SSI Environmental DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT 20

28 4.2.2 Step 2: Determine the wave run up heights using wave run up models The wave run up heights were determined by using the models of Mather et al. (Mather, Stretch, & Garland, 2010) for sandy shorelines and the wave run up heights using the Eurotop manual for rocky shorelines (Pullen et al., 2008). Accordingly, the coastline was divided into sections that had one of four consistent profiles, namely: Small sandy embayment s where urban development had taken place; Large open sandy stretches of coastline; Steep rocky shorelines; or Rocky promontories. These locations were determined at positions where the water depth was 30m and 15m. The design wave heights determined in Table 6 were transformed to a water depth of 30m and 15m respectively using the SWAN model. SWAN is the most widely used computer model to compute irregular waves in coastal environments, based on deep water wave conditions, wind, bottom topography, currents and tides (deep and shallow water). SWAN explicitly accounts for all relevant processes of propagation, generation by wind, interactions between the waves and decay by breaking and bottom friction. Diffraction is included in an approximate manner in SWAN. For further information see Step 3: Determine the short term storm erosion risk along the coastline The Western Cape methodology specifies the use of the SBEACH computer model to simulate the short term erosion on the shoreline. This works well when the model is calibrated using actual recorded data for storm erosion events. In the case of the Overberg this data was not available. The solution therefore was to use an estimation of short term storm erosion determined by local knowledge and expert opinion. The amount of erosion from a 1:100 year erosion event was determined to be 20m and this was applied to all sand sections of the coastline. Shoreline features were also incorporated. Many shoreline features are distinguishable from aerial photographs on sandy coastlines and these include: the seaward vegetation line, high tide wrack line, berm crest, wet/dry interface (wet-line), and beach step. The wet-line gives a good approximation of the shoreline at the time of the aerial photograph on sandy areas (O'Connel, 2003). The wet-line was therefore digitized along sandy sections of beach as observed on aerial photography. The above mentioned shoreline features could not be distinguished clearly on the lower resolution 1938 aerial photographs and therefore these were excluded from this exercise, and more recent imagery used. The Western Cape methodology specifies aerial photography spanning a minimum period of at least 40 years is used to determine a long term shoreline trend. Due to the fact that only two aerials of suitable quality were available for this study, namely 1973 and 2005 (with a resultant span of 32 years), the calculated regression trends period was not ideal but does provide a reasonable indication of the erosional trends in the study area Step 4: Determination of current HWM in terms of the ICM Act for sandy coastline Before work could begin on Step 4, 5 and 6, the LiDAR data from 2011 had to be processed and interpolated to create a Digital Terrain Model (DTM) for the coastline. In addition the -15m depth contour was digitized from the South African Navy charts SAN 120 and 121 and added to the DTM data. 21 DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT SSI Environmental

29 As defined in the ICM Act, the High Water Mark 8 is the level reached by storm waves occurring at no more than a 1:10 year return period, wave conditions selected in step 1 were modelled using the prescriptions from Mather et al. (2010). Still water levels were taken as Mean High Water Springs (MHWS). Figure 7 below shows an example of the HWM wave run up along the sandy shoreline. FIGURE 7: SANDY SHORE WAVE RUN UP MODELLING FOR A 1 IN 10 YEAR STORM (RED LINE) NEAR HAWSTON Step 5: Determination of current theoretical High Water Mark in terms of the ICM Act for rocky coastline The Eurotop manual provides for an approach to determine the wave run up for the rocky portion of the Overberg coastline (Pullen, et al. 2007; Pullen, et al. 2008). This methodology was applied to areas where it was clearly a rocky coastline based on an analysis of the aerial photography. An example of the output from this analysis is shown in Figure 8. 8 The ICM Act amendment Bill proposes a amended definition of the High Water Mark however the proposed amended definition would still appear to be fraught with problems technically. SSI Environmental DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT 22

30 FIGURE 8: ROCKY SHORE WAVE RUN UP MODELLING FOR A 1 IN 10 YEAR STORM (BLUE DOTTED LINE) AT HERMANUS Step 6: Determine the predicted future 1 in 100 year High Water Mark Next, the predicted future 1 in 100 year High Water Mark, due to Sea Level Rise and long term shoreline retreat, was determined for the entire Overberg coastline. The predicted future position of the 1 in 100 year HWM with 1 m of sea level rise required the application of the Bruun rule (Bruun, 1962) to model the retreat of the shoreline due to increased inundation (yellow line in Figure 9). Predicted impacts of long term shoreline retreat were added to the sea level rise impacts.. At each location aerial photography analysis was undertaken and the observed annual beach retreat was calculated. From the Bruun regression line a figure equal to 100 years of long term erosion was added to the inland side of the Bruun retreat (the orange line in Figure 9). 23 DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT SSI Environmental

31 FIGURE 9: SEA LEVEL RISE RETREAT MODELED USING THE BRUUN RULE FOR SANDY SHORELINE NEAR HAWSTON In areas where there were still active dune fields that extend inland of the Bruun regression line and long term beach regression calculation, the line was extended further inland to form the inland edge of the physical process line shown in Figure 10. FIGURE 10: THE PHYSICAL PROCESS LINE (SHOWN IN ORANGE) MOVES INLAND IN THE UPPER PORTION OF THE FIGURE WHERE THE ACTIVE DUNE WAS PRESENT IN THE 1962 AERIAL PHOTOGRAPHY SSI Environmental DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT 24

32 On rocky shorelines the physical process line was easier to define as no calculation of beach retreat was required. In this case the additional 1m of sea level rise was added to the wave run up positions (blue dotted line in Figure 11) and this new line (shown in orange in Figure 11) was defined as the Physical Process line. FIGURE 11: PHYSICAL PROCESS LINE ALONG A ROCKY SHORELINE AT HERMANUS Steps 7,8 and 9: Environmental, Social and Economic Buffers The last three steps were not modelled. Instead, coastal features are added, based on observed and known information: Step 7 Step 8 Step 9 Determine the environmental buffers required inland from the HWM to maintain a functional coastal ecosystem under future sea level rise scenarios; Determine of social buffers required along the coast. For example allowance for public beach access through and along the coastal frontage or for areas which have cultural significance and will need to be preserved from development; and Determine any economic requirements for the coast. For example, allowance for new beach facilities that will need to be placed closer than normal development to serve the public. Economic demands often require a trade off against environmental aspects at a particular site. 4.3 The Result If we examine the case of Betty s Bay (Figure 12) located along the sandy shoreline and within a mobile dune cordon, one can see the combined effects of the different modelling steps. The red line is the wave run up for a 1:10 year storm at MHWS. The blue line is the 1:100 year storm wave run up. The difference in the two wave run up positions is not much due to the bathymetry reducing the 1:100 wave storm height to a level only slightly higher than the 1:10 year storm. The yellow line is the combination of a 1:100 year storm 25 DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT SSI Environmental

33 erosion allowance (20m) added to the 1m of sea level rise regression. The long term erosion trend at Betty s Bay is just under 2m per year based on the aerial photography between 1973 and Based on the annual long term erosion of 2m per year the 100 year trend is of the order of 200m. The yellow line is then set back 200m to account for these processes and is shown as the orange line. The limited development line (shown in turquoise) is then determined using social, environmental and economic criteria. In terms of the specifications and definitions of the Western Cape Province s Coastal Development Set-back Lines methodology, the orange line functions as the coastal processes/ no development line and the turquoise line as the limited development line. FIGURE 12: TYPICAL SET BACK ANALYSIS PROCESS (BETTY S BAY) Needless to say, the extent of the study area makes it impractical to provide a printout of the coastal setback lines for the entire Overberg District area. Instead, this project report is intended as a supportive reference for the associated GIS product. The GIS maps are the property of Provincial Government of the Western Cape, and can be accessed via the DEADP. To improve accessibility for the public, the GIS product was also converted into layers that can be viewed in the popular Google Earth viewer as shown below. SSI Environmental DETERMINING COASTAL SET-BACK LINES FOR THE OVERBERG DISTRICT 26


35 5 THE DRAFT REGULATIONS In order to guide the implementation of the coastal set-back lines determined by this project, a set of draft regulations were compiled for consideration and publication by the MEC. These are attached as an annexure. Publication and promulgation of the regulations must, however, be compliant with the requisite stakeholder engagement and administrative procedures prescribed in the ICM Act, and implementation must ensure alignment between regulatory mandates is achieved. The sections below provide insight into the approach taken to draft proposed regulatory controls for the coastal set-back lines in the Overberg District. 5.1 Statutory requirements The MEC of a coastal province is required, in terms of Section 25(1) of the ICM Act, to publish coastal setback lines in the form of regulations in the official gazette. The lines may be used to further the objectives of the Act, and specifically restrict structures within the coastal zone. Additional regulations may be published by the MEC in terms of Section 84(1), after consultation with the Minister, that detail how regulatory control will be exercised by the Provincial Authority. As per the ICM Act, the regulations may relate to (a) the implementation and enforcement of the coastal management programme of the province; (b) the management of the coastal protection zone within the province; (c) the use of coastal public property for recreational purposes; (d) the impounding, removal and disposal of vehicles, vessels, aircraft or property found abandoned on coastal public property; (e) the granting of permission for the erection, placing, alteration or extension of a structure that is wholly or partially seaward of a coastal set-back line and the process to be followed for acquiring such permission, including the authority by whom, the circumstances in which and the conditions on which such permission may be given; (f) the implementation within the province of any national norm, framework or standard referred to in section 83(1)(f); (g) the management of special management areas; or (h) any other matter referred to in section 83(1), other than in paragraph (f) of that section, that may be necessary to facilitate the implementation of this Act in the province. Of particular relevance are items (b) and (e) that allow for the imposition of provincially administered permits for structures with the set-back line zone(s), and the general management of the coastal protection zone. This process needs to be aligned with the regulatory control imposed by the EIA regime; in particular the EIA listed activities that refer to coastal set-back lines. In some cases, the duplication between the ICM Act and EIA Regulations should be avoided, and in others, coordinated. The relationship between the two systems must, however, always remain clear and free of uncertainty over naming convention, regulatory mandates and regulatory requirements. SSI Environmental THE DRAFT REGULATIONS 28

36 5.2 Coastal Set-back Lines Inter-Governmental Workshop It became apparent during the course of the Overberg Set-back Lines project that widely different views on the use and implementation of coastal set-backs were held within different spheres of government. In an attempt to resolve these differences and to agree on an appropriate way forward, the City of Cape Town and DEADP held a workshop entitled Implementing the Principles of the Integrated Coastal Management Act: Applying Set-Backs to Regulate Coastal Development on 16 and 17 August 2011 in Tokai, Cape Town. The workshop was completely independent of this project, but facilitated a more common understanding of the application of coastal set-backs in the Western Cape, and this understanding is employed in the resolution of the issues identified during the course of the Overberg project. During the Coastal Set-back Lines Workshop referred to above it became apparent that there were at least three distinct approaches: The first approach focussed on using coastal set-back lines and the demarcation of the inland boundary of the CPZ, in a manner that best gave effect to the mandate in the ICM Act to protect the integrity and function of coastal ecological processes and to safeguard against the risks associated with climate change and sea level rise; The second approach was to use a coastal set-back line to protect the remaining natural coastal features (particularly in urban areas) from further modification by development; and The third approach was to use the coastal set-back lines as a means of limiting the number of applications under the EIA Regulations, thereby facilitating development landward of the set-back line. In relation to the third approach it is important to note that the development set-back lines envisaged in the EIA Regulations are not necessarily the same as the coastal set-back lines envisaged in the ICM Act. The EIA Regulations indicate that while EIAs are required in respect of certain activities that occur within 100 m inland of the high-water mark, this requirement will not apply to developments which are situated inland of set-back lines. It appears that the reference to development set-back lines in the EIA regulations was intended to create a mechanism for tailoring the generic list of listed activities which trigger the need to undertake an EIA, to the circumstances of particular places by allowing for the demarcation of development set-back lines which would have the effect of exempting developments inland of that line from the requirement to undertake an EIA. This differs from the purpose for which coastal set-back lines are established under the ICM Act. Nevertheless if the same line would achieve both the purposes of the ICM Act and those of the EIA Regulations, it is legally permissible for a coastal set-back line to function as a development set-back line under the EIA regulations. The broad consensus reached at the Tokai workshop indicated that: It is in the public interest to determine a coastal development set-back line that will prohibit or restrict development in sensitive or hazardous areas along the coastline; Given the dynamic nature of coastal processes, and the resultant variable hazard they pose, a modelled coastal hazard or risk line cannot be used as an absolute determinant of development, but must rather inform development controls and decision-making; and Coastal set-back lines should be used in conjunction with the determination of the boundaries of, and control of development in, the Coastal Protection Zone. 29 THE DRAFT REGULATIONS SSI Environmental

37 5.3 Approach to the draft coastal set-back regulations In consideration of the broad outcomes of the Tokai workshop mentioned above, the compilation of coastal set-back regulations was approached in a structured manner in order to create a comprehensive and robust regulatory system as key part of the implementation of the coastal set-back lines. Specifically, three types of controls are proposed: 1. Restricted development seaward of a coastal set-back line; 2. Controls over certain activities to be undertaken either within the coastal protection zone or seaward of the coastal set-back line which do not already require an environmental authorisation under NEMA; and 3. Certain permissible activities (mainly by municipalities) for which further control is not required. The applicability of these controls is determined according to the location of activities and development relative to demarcated coastal set-back line(s) and the defined Coastal Protection Zone. Per definition, and as intended, a coastal set-back line is envisaged as a building set-back line close to the sea below which buildings should not be permitted, except in exceptional circumstances and after an EIA has been undertaken. Restrictions in this zone can be applied strictly and consistently, since it is characterised as an area with either minimal development, or development that is at direct and relatively immediate risk from coastal processes. Information on the level of risk can be gleaned from a scientifically modelled coastal processes or hazard line. Less strict or prohibitive development controls are to be applied within a limited development set-back area. This, the most landward set-back line, can therefore be used as the inland boundary of the CPZ i.e. essentially an environmentally sensitive area within which certain activities should be listed for the purposes of the EIA regulations. The scientifically determined "coastal erosion" or "coastal processes" line should be retained as a relevant consideration (informant) for decision-makers taking land use planning or building plan approval decisions. The information provided by the modelling could, for example, inform a formal or informal policy of not approving certain structures or constructing municipal infrastructure seaward of this line because of the likelihood of it being washed away or eroded. As a result of the above arrangement, the proposed Coastal Protection Zone and Coastal Set-back Regulations (Overberg District), 2012 make provision for: a) The demarcation of a coastal set-back line and limited development line (or CPZ boundary) for the Overberg District; b) Activities for which a coastal permit is required, specifically activities within the CPZ and activities seaward of the Coastal Set-back Line; and c) Activities that may be undertaken within the CPZ or seaward of the coastal set-back line without a coastal permit. SSI Environmental THE DRAFT REGULATIONS 30

38 6 STAKEHOLDER ENGAGEMENT Landowners, land users, authorities, and the public at large may be affected by the outcomes of the project, either through changes in development planning, or due to increased regulation of activities in the coastal zone. Therefore, the process of determining the coastal set-back lines was not only informed by the long term trends in natural processes, but also by the presence of existing developments and infrastructure and importantly, the contributions made by public stakeholders. A comprehensive engagement process was undertaken to communicate both the process and the outcomes of this coastal set-back line determination project to Interested & Affected Parties (I&APs). A complete Stakeholder Engagement Report, that describes the process followed in more detail, is provided as an annexure to this main report. The process allowed for individuals, groups and organisations, including government role-players, to provide input at each stage of the project. A phased approach ensured that the legal requirements and best practice stakeholder engagement were met. 6.1 Legal Requirements According to sections 25 and 53 of the ICM Act, the Minister, MEC, municipality or any other person intending to exercise a power stipulated in the Act (such as the promulgation of coastal set-back lines and associated regulations) must notify, consult with, and invite representations and objections from I&APs. Section 25 of the ICM Act specifies that before making or amending the regulations the MEC must: (a) consult with any local municipality within whose area of jurisdiction the coastal set-back line is, or will be, situated; and (b) give I&APs an opportunity to make representations in accordance with Part 5 of Chapter 6. Part 5 of Chapter 6 (i.e. Section 53(1)) of the Act indicates that the minimum requirements for proper engagement with I&APs include: (a) consultation with all Ministers, MEC s or municipalities whose areas of responsibilities will be affected by the exercise of the powers in accordance with the principles of co-operative governance as set out in Chapter 3 of the Constitution; (b) publication or broadcasting of his or her intention to do so in a manner that is reasonably likely to bring it to the attention of the public; and (c) by notice in the Gazette - i. an invitation to members of the public to submit, within no less than 30 days of such notice, written representations or objections to the proposed exercise of power; and ii. sufficient information to enable members of the public to submit representations or objections. Since the process of officially publishing the coastal set-back lines and their associated regulatory controls is a provincial responsibility that will follow the completion of this project, the determination of the draft coastal set-backs and regulations is viewed as separate from the final publication thereof. The stakeholder engagement process is therefore aimed more towards obtaining stakeholder contribution on the delineation and drafting process (Section 25 of the ICM Act), as opposed to comment on a final official publication of the coastal set-backs according to Section 53(1)(c) of the Act. 31 STAKEHOLDER ENGAGEMENT SSI Environmental

39 6.2 Methodology The Overberg Community is made up of a range of individuals and institutions which serve different roles. Institutions that would have an interest and/or be affected by the development of coastal set-back lines were identified, and broadly categorised as: Individual landowners and land users; Coastal resource users; Community interest groups and representative structures; Protected area administrations; Municipalities; and Provincial and national government departments. Furthermore, stakeholders in different locations have different concerns and needs, and therefore the project needed to be sensitive towards the different towns and clusters along the coastline. The list of locations along the coastline with more than just a handful of houses includes: Rooiels, Pringle Bay, Silver Sands, Betty s Bay, Sunny Seas Estates, Kleinmond, Meerensee, Fisherhaven, Hawston, Onrust, Sandbaai, Zwelihle, Hermanus, Die Kelders, Gansbaai, Kleinbaai, Van Dyksbaai, Franskraal, Uilenkraalsmond, Pearly Beach, Buffeljagsbaai, Suiderstrand, Agulhas, Struisbaai, Hotagterbaai, Arniston/Waenhuiskrans, Cape Infanta and Witsand. Engagement was therefore undertaken through focused and general techniques to ensure maximum interaction with these stakeholders. These techniques can be summarized as follows: Project Steering Committee: The project steering committee consisted of the client and other Department of Environmental Affairs and Development Planning (DEADP) officials, key local coastal environmental and planning authorities, as well as elected or identified stakeholders. The intention of the committee was to provide high level stakeholder input and continual guidance in the determination of set-backs; Advertising: At the outset of the project affected landowners as well as the general public were notified of the stakeholder engagement process via a public advertisement in local newspapers in two official languages (English and Afrikaans), notices at public venues and the distribution of information leaflets. The adverts included an invitation to register as an I&AP, a notice of the intention to develop the two coastal set-back lines, a description of the study area boundaries and finally, the key aspects to be considered in the study; and Development of a stakeholder database: A stakeholder database was formed and continually updated throughout the course of the project and when additional stakeholders became aware of the project, of all I&APs as well as relevant authorities. This database was used as a means of distributing information and facilitating communication and consultation. Two rounds of public engagement were undertaken a first round aimed at sensitising people towards the project and to source public contributions, and a second round at which draft set-back lines and regulations were made available for inspection and comment. Each round consisted of five separate public meetings in different centrally located venues along the coast, with the second followed by a six week comment period. SSI Environmental STAKEHOLDER ENGAGEMENT 32

40 6.3 First iteration of stakeholder engagement The first iteration of public participation for the Overberg Coastal Set-back Lines focused on informing the public about the project due to the fact that draft set-back lines and the regulations to implement them had not yet been developed at this stage of the project. The first iteration was also used as an opportunity to develop a database of interested and affected parties for the project and gain some perspective on the concerns of the local community prior to the presentation of the draft set-back lines and regulations. Engagement with the authorities in the region took place under the auspices of a Project Steering Committee. Contributions received during this phase related to: Property, future development and land use; Project methodology; Public participation; Estuaries and flood lines; Sand dunes; and Other. 6.4 Second iteration of stakeholder engagement The second iteration of public participation was aimed at building upon the awareness generated by the first iteration and at presenting the draft coastal set-back lines and regulations to stakeholders for comment. Following the public meetings, stakeholders were requested to provide written comment on the draft coastal set-back lines and regulations. Registered I&APs increased to 380 individuals between the end of the first iteration and the end of the second iteration. Once again, many stakeholders did not attend the public meetings but were made aware through word of mouth and some of the comment received reflects a disjuncture in terms of the information provided. A significant departure from the type of comment received from stakeholders during the first iteration occurred during the second iteration. As awareness around the implications of the project grew, so too did the number of responses received from stakeholders. The majority of affected landowners did not attend public meetings for various reasons but awareness was raised, inter alia, through ratepayers associations, estate agents and local conservation groups. Due to the influx of new I&AP registrations, there was often a disjuncture in terms of background information relating to the project as stakeholders became aware of the project at different times and were thus provided with information at different times. This sometimes caused some confusion as to the aims of the project, and in many instances the services of lawyers and environmental consultants were employed to participate on behalf of affected landowners. As a result of these factors, a different type of analysis was applied to comments received during this round of public participation. The volume of formal written comments (n=134) allowed for an identification of cross-cutting issues and concerns that were raised by stakeholders. These were identified by means of keywords, and then categorised according to these commonalities. The project team was then able to respond collectively to the concerns and queries raised by stakeholders during the second iteration of public participation. The graphs below show illustrate the concerns raised by the stakeholders. 33 STAKEHOLDER ENGAGEMENT SSI Environmental

41 FIGURE 14: CATEGORIES OF COMMENTS RECEIVED AS A PERCENTAGE OF THE TOTAL NUMBER OF COMMENTS FIGURE 15: THE SENTIMENTS OF THE COMMENTS RECEIVED (NEGATIVE, NEUTRAL, CONSTRUCTIVE OR POSITIVE) FOR EACH CATEGORY OF COMMENTS It can be seen that majority of the comments received focused on the impacts of the study on property rights, followed closely by comments regarding stakeholder engagement, amendments to the study and knowledge gaps. It also shows that the majority of the comments received regarding property rights and stakeholder engagement were negative, which the proposed amendments and knowledge gaps comments SSI Environmental STAKEHOLDER ENGAGEMENT 34

42 contained a mix of sentiments. The sentiments on the other comments were mostly negative with a degree of constructive input as well. 6.5 Key Findings A significant response was received from stakeholders following the second iteration of public meetings. Word spread among residents which resulted in a landslide effect of I&AP registrations. Telephonic correspondence was frenetic, and requests for more detail around individual erven increased as word spread. Unfortunately, the manner in which word of the project spread caused some degree of panic among stakeholders, including misinterpretation of the information provided. Individual rights of landowners has been by far the biggest area of concern, followed by the uncertainty of what the implementation of the draft coastal set-back lines will mean for property values and local economies. A further concern common to many of the issues raised by stakeholders was the misconception that properties which are well elevated above sea level, are safe from the effects of dynamic coastal processes. Those in favour of the protection implied by the draft coastal set-back lines made some practical suggestions for improvement of the methodology. However, the prevailing sentiment was one of negativity and extreme concern, which may or may not be born of an incomplete understanding of the process. This has also resulted in the appointment of legal representatives by landowners who are concerned that their Constitutional rights are being compromised by the proposed set-back lines and regulations. In addition, some landowners have employed the services of independent environmental consultants to participate on their behalf in the coastal set-back line delineation process. Many stakeholders justifiably raised concern regarding the notification of landowners affected by the position of the draft coastal set-back lines. Whilst the delineation of the draft lines was not contingent on the notification of all landowners, the fact that directly affected stakeholders have potentially been overlooked is an issue that needs to be addressed. Of particular relevance are the concerns of absentee landowners or those who own second homes in the Overberg District, as local media adverts and posters would not have been accessible to these stakeholders. 35 STAKEHOLDER ENGAGEMENT SSI Environmental

43 7 RECOMMENDATIONS 7.1 Review of the provincial methodology Based on the experiences from this pilot study on the implementation of coastal set-back lines, it is believed that a potential solution to the current discontent in respect to the implementation of the provincially approved Methodology lies in: the realistic re-determination of the coastal set-back lines based on natural process modelling as well as social and economic parameters; and the realistic re-determination of the physical processes line that translates the current long term (e.g. 100 year) natural processes modelling into pragmatic planning horizons (e.g. 50 year structural life expectancy). In addition, certain recommendations can be made in terms of which management lines should be used for different purposes and in terms of a typical process flow for similar coastal set-back line projects Realistic development controls Because of the sensitive nature of coastal areas, and the very real risk of regulatory chaos developing, the distinction between different set-back lines and the assumptions regarding their relative positions along the coastline are fundamental to the correct and practical application of coastal set-backs in and around the CPZ. In practice it was found that the application of coastal set-back lines, as conceptualised by the Western Cape Province s Coastal Development Set-back Lines methodology, was not fully compatible with the diversity and dynamics of long sections of coastline or with the current level of development encroachment into the conceived hazard zone. In particular, it was found that in assuming that the no development zone should equate to land seaward of the modelled coastal erosion set-backline, the provincial methodology fails to fully accommodate the reality that development and developed areas have already encroached beyond the physical processes / erosion line. Reality therefore dictates that the implementation of the various set-back lines, both coastal and development must make provision for developments and development planning that already extends into the hazard zone. Decisions regarding development in this zone are particularly difficult as they affect existing or assumed property rights as well as development precedents, and are relative to planning horizons. For example, a partly developed residential area within the hazard zone is unlikely to be removed or relocated, and approval for infill development is unlikely to be refused. By implication, the conceptualization of the no development zone, determined on the basis of a coastal erosion threat, needs to be refined to accommodate existing development. This zone needs a management response that can differentiate between a modelled long-term erosion hazard and pragmatic development control. The potential solution lies in delimitating realistic management coastal set-back lines that can translate long term (e.g. 100 year) natural processes modelling into guidance that relates to pragmatic planning horizons (e.g. 50 year structural life expectancy). The most practical solution is therefore found in placing more emphasis on using local knowledge and planning considerations to determine development restrictions. This is achieved by using the modelled SSI Environmental RECOMMENDATIONS 36

44 physical processes line in conjunction with local planning knowledge as well as realistic determinants of the capacity for regulatory control to delineate a final management set-back line which may be closer to the water s edge than what is prescribed by physical processes modelling. This proposed set-back line relies not only the modelling results but also on the interpretation thereof in terms of realistic planning horizons. Such an additional realistically and pragmatically determined The Overberg Coastal Set-back Line should be delineated in consultation with affected local Municipalities. As compared to the simplistic default concept described in section 1.3 earlier in this report, the revised concept can be schematically represented as is shown in Figure 16: FIGURE 16: REVISED COASTAL SET-BACK LINES CONCEPT As is shown in Figure 16, with the long term erosion risk determined, a practical development control can be demarcated that also takes into account local planning horizons, coastal defences, existing structural alterations to the shoreline, and local regulatory capacity. The control, the Overberg Coastal Set-back Line, is the end result of consultation between the different coastal authorities that, in turn, is informed by the actual long term erosion risk modelling. Development in this zone should be allowed only in extreme cases. Figure 17 illustrates how such a line would be implemented in practice. In the case of Onrus, it is found that development has already encroached beyond the recently modelled long-term erosion hazard line (green line). Although the Limited Development Set-back line (yellow line) is confirmed as the inland boundary of the Coastal Protection Zone immediately inland of the long-term hazard line, a less conservative coastal setback line is demarcated seaward of developments that are not at immediate short-term risk (red line). This allows for the management of the long-term risk as the risk horizons creep closer, rather than as an immediate intervention. 37 RECOMMENDATIONS SSI Environmental

45 FIGURE 17: EXAMPLE OF THE APPLICATION OF A 'PRACTICAL' SET-BACK LINE The recommended Overberg Coastal Set-back Line would therefore demarcate an area below current developments with no short term erosion risk, and specifically includes: areas of concern within the projected erosion risk zone where no development has taken place; as well as properties faced with an immediate erosion threat. In contrast, the higher, most landward line is implemented as the upper boundary of a controlled development zone where development can continue in a manner that is deemed appropriate and compatible by the relevant authorities. With the above in mind, the proposed definitions of the two lines required in terms of the Western Cape Coastal Set-backs Methodology can therefore be amended as indicated in Table 7: SSI Environmental RECOMMENDATIONS 38