Categories: Sustainability Strategies
While the debate on climate change rages, many are unaware of the potentially far-reaching legal ramifications on various industries, particularly the property sector.
Recent statistics reveal that more than 80 percent of the Australian population lives within the coastal zone. This means that there are over 16.8 million people who may be impacted by sea level rise and its associated issues.
An 18-month investigation by a House of Representatives committee, backed by members of both major parties, found that, nationwide, more than 700,000 coastal properties with a combined worth of about $150 billion are potentially at risk.
At present the majority of research being conducted into modelling the impacts of sea level rise is at the Commonwealth level, while the majority of policy initiatives are being prepared at the State level. Some local governments in coastal areas are conducting research and creating policies in relation to sea level rise, while others are not prepared to make the investment at this early stage.
Although many of these policies are in their infancy, they are already proving problematic. Until this year many of the court cases concerning climate change had related to the resources sector. However in the past 12 months there have been several cases dealing with the potential impacts of climate change on developments, in particular residential developments, as awareness of climate change issues increase.
The cases so far
For example, in Gippsland Coastal Board v South Gippsland Shire Council & Ors the Victorian Civil and Administrative Tribunal (VCAT) conducted a merits review of a development approval, where the grounds of appeal related to potential climate change issues in the absence of specific statutory provisions requiring climate change to be considered.
The South Gippsland Shire Council had approved six dwellings on a Crown allotment. Following the approval being granted, Gippsland Coastal Board applied to VCAT for a merits review of the decision. VCAT refused the consent to develop the land on three grounds, one relating to the intergenerational risk of sea level rise.
VCAT relied on the precautionary principle and ruled that the location of the proposed development was not suitable for residential development given the unacceptable risk of sea level rise and flooding inundation. It further determined that, although there was an absence of specific certainty about the degree of sea level rise, there existed a reasonable level of risk based on studies undertaken by the CSIRO.
Similar determinations have been made in South Australian courts. In Northcape Properties Pty Ltd v District Council of York Peninsula, the South Australian Supreme Court refused a development application in a coastal location because the development assessment had failed to take into account the predicted erosion of the coastline resulting from projected rising sea levels. The proposed development was for the subdivision of a large parcel of land at Marion Bay into 80 lots, with 78 of these lots proposed for residential use.
The land fell within the Holiday Settlement Zone, with its southern boundary adjoining the Coastal Zone under the Development Plan provisions. Objective two for Coastal Development required an allowance for changes in sea level due to natural subsidence and predicted climate change during the first 100 years of the development.
The Council, and subsequently the Court, was in a much stronger position to refuse development consent in this case, because the applicable provisions of the planning scheme specifically required that sea levels in the first 100 years of a development’s life be taken into consideration.
Walker v Minister for Planning provides the first comments from the NSW judiciary on the implications of sea level rise for residential developments. The case involved a development proposal at Sandon Point in the Wollongong local government area dating back to 2002. The proposal involved the subdivision of land for development of residential dwellings and a retirement style development incorporating a residential aged care facility.
Gaining approval for the development was difficult as the Minister for Development had declared Sandon Point to be of State significance under the Environmental Planning and Assessment Act (EPA Act). A Commission of Inquiry also held that residential development should be restricted to permit the outstanding cultural and ecological values of the site to be preserved.
The Minister formed the view that the proposal was a major development and declared it a major project under the EPA Act. The Minister also authorised the submission of a concept plan, which was subsequently approved.
Judge Briscoe of the Land and Environment Court determined that the Minister had failed to consider principles of Ecologically Sustainable Development (ESD) by not considering whether the impacts of the proposed development would be compounded by climate change.
Specifically, Judge Briscoe determined that the Minister failed to consider whether changed weather patterns would lead to an increased climate change flood risk in circumstances where flooding was identified as a major constraint on the future development of the land.
On appeal the Court of Appeal reversed the decision and held that the failure to consider principles of ESD did not render the Minister’s decision void, nor the approval and concept plan.
The leading Queensland decision is Charles Howard v Redland Shire Council, which involved the effect of a buffer zone in a coastal area in light of issues relating to climate change, including the impact of storm surges. The development application related to a single dwelling on land overlooking Moreton Bay.
The appeal point related to the validity of a condition of the preliminary approval that required the house to be located on a different area of the land to which the applicant proposed. Council approved the development, albeit with the house in a different location. This condition was appealed to the Court as being unreasonable. Judge Brabazon dismissed the appeal, finding that the intention of the planning documents was that no development should occur on the part of the land nominated by the developer.
There is little doubt that court cases involving climate change will increase significantly in coming years, as it is an area that is rapidly evolving and attracting widespread attention. If the impacts predicted to occur as a result of climate change come to fruition, there are likely to be legal consequences into the future.
Future liability
While it is likely that this area of law will continue to develop, it appears at this stage that there is only limited potential for planning authorities to be held liable for losses that may arise out of the impacts of climate change, including sea level rise.
However, as knowledge about the impacts of climate change and potential for sea level rise increases, the potential liability of planning authorities for their decisions may also increase in the future.
As the results of research into vulnerable coastal areas become known, it is probable that local governments will be required to restrict development in coastal areas. At this point in time, important decisions will need to be made as to whether land is resumed under the Acquisition of Land Act or designated under Queensland’s Integrated Planning Act (IPA) or similar State-based legislation.
The alternative is to amend planning schemes to restrict development rights on undeveloped parcels of land, which will likely give rise to compensation claims. This situation raises numerous social and economic issues which will need to be addressed by all stakeholders in the property development industry.
Tarnya Fitzgibbon is senior associate and Stuart Macnaughton is partner in the planning and environment group of McCullough Robertson.
