Councils approving developments in locations susceptible to
rising sea levels (or failing to warn of its risks when providing
information about sites) are an obvious target to litigant asset
owners who suffer inundation attributable to climate change.
Drastically diminished asset values and economic losses from
climate-related business interruption means that future liability
accruing to councils by litigated recoveries is potentially
Despite these risks, in November 2014 the former Minister for
State Development and the Minister for Infrastructure and Planning
formally directed that a Queensland council is not to include
allowance for projected sea level change in its planning
What can councils do to offset the risk of being sued for
planning decisions or planning instruments which ignore the current
state of scientific learning on future sea levels?
Liability insurance an option, but always take reasonable
Future liabilities can be offset by insuring against the risk of
liability for council's negligence. However, where councils are
already cognisant of climate change implications, care must be
taken that councils do not breach insurance policy requirements
that the insured take "reasonable precautions" to prevent
a loss. Availability of policy indemnity may be prejudiced where an
insured entity has actual knowledge of a known risk and consciously
or recklessly "courts the risk".
Proportionate liability may apply
A defendant council may avail itself of the proportionate
liability regime in the Civil Liability Act 2003 if other
"wrongdoers" also contribute to the claimant's loss.
Such wrongdoers could include providers of professional services
engaged in the construction or transfer of the property.
Joinder of parties may provide indemnity or contribution
The permissible range of issues a council can consider in
assessing development applications is subject to legislative
prescription by the State government or could be the subject of a
Ministerial Direction like the one given in November 2014. If sued,
a council might seek indemnity or contribution by the joinder of
governmental authorities which restrict a council's capacity to
consider climate change issues.
Planning and development law may change
Finally, relief may lie in future legislation. The current draft
of Queensland's Planning and Development Bill 2014 contains provision
for an immunity where a council is required to amend its local
planning instruments in compliance with a Ministerial Direction.
However, it remains to be seen whether the Bill in its current form
will be passed into law, particularly given the changing Queensland
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