In one of the first decisions of its kind in Australia, the Victorian Civil and Administrative Tribunal has refused the development of six coastal dwellings partly due to the threat of increasing storm severity and rising seas levels from climate change. The decision in Gippsland Coastal Board v South Gippsland SC & Ors (No 2) [2008] VCAT 1545 was handed down by Deputy President Helen Gibson and Member Ian Potts on 29 July 2008.
Background
DLA Phillips Fox acted on behalf of the Gippsland Coastal Board, who made an application under section 82 of the Planning and Environment Act 1987 (Vic) (P&A Act). The application concerned a review of the decision by the South Gippsland Shire Council to grant planning permits for six separate dwellings on separate Crown allotments in a Farming Zone, close to the coast about 197 kilometres south-east of Melbourne. The land is low-lying, prone to high water tables and water logging, subject to flooding and is at risk of rising sea levels and coastal subsidence.
In addition to conflict with rural land use policy, DLA Phillips Fox identified two grounds of environmental concern in respect to the proposed dwelling developments: (1) they posed an unnecessary and unacceptable risk to the coastal environment and (2) they were inappropriate in light of preliminary climate change studies undertaken by the CSIRO on behalf of the Gippsland Coastal Board. These studies attempted to quantify the level of sea level rise that may occur in the area under increased wind surges and more generally, sea level rises in combination with storm surges.
The Tribunal noted that whatever the degree of impact, significant wind and storm surge effects would be felt by the nearby coastline.
The specific consideration of sea level rises, coastal inundation and the effects of climate change are not set out within the Victorian Planning Provisions. Consequently, the Tribunal referred to section 60(1)(e) of the P&A Act which states:
'Before deciding on an application, the responsible authority must consider... any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development'.
The Tribunal held that while they did not have the benefit of specific planning provisions or policy relating to coastal recession or sea level rise, it was their view that the requirement in section 60(1)(e) was sufficiently broad to include the influence that climate change and coastal processes may have on the proposed developments.
The Tribunal accepted that the general consensus was that some level of climate change would lead to extreme weather conditions beyond the historical record that planners and others rely on in assessing future potential impact. DLA Phillips Fox urged the Tribunal to take a precautionary approach to the issue (otherwise known as the 'precautionary principle'). The Tribunal, in doing so, held that that the increase in the severity of storm events, coupled with rising sea levels created a 'reasonably foreseeable risk' of inundation of the subject land and the proposed dwellings which was 'unacceptable'.
Deputy President Gibson and Member Potts concluded that climate change would make the land 'unsuited for the proposed development'. The Tribunal held that 'at every level... good planning would dictate that these permits be refused'.
Implications
The Tribunal did note that the relevance of climate change to the planning decision making process 'is still in an evolutionary phase' and that each case concerning the possible impacts of climate change would turn on its own facts and circumstances. However, the decision demonstrates that the courts are beginning to take the effects of climate change seriously. And in particular, recognising climate change as a relevant consideration in planning matters. This will no doubt have huge implications for future coastal developments.
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