Australia: Have You Considered How Climate Change Might Affect Your Development?

Key Point

  • Proponents must ensure that their own assessment reports deal with climate change in a relevant and meaningful way, to arm the regulatory agencies with the information they need to discharge their statutory responsibilities.

While we are now accustomed to considering how our businesses and particular projects might contribute to climate change, a recent case reminds us to also consider how climate change might affect particular projects for the purposes of obtaining development approval for those projects.

In Walker v Minister for Planning [2007] NSWLEC 741, the NSW Land and Environment Court held that the approval authority (in this case, the Minister) must consider whether changed weather patterns as a result of climate change would lead to an increased flood risk (which the Court called "climate change flood risk") for a residential development project, where flooding was identified as a constraint on that project.

Numerous court decisions in Australia in the last few years have considered the potential for a project to contribute to climate change1 The Walker case, however, is among the first to consider the potential for climate change to compound the anticipated effects of the environment on a project.

A concept for a coastal retirement village

Sandon Point, about 14 km north of Wollongong City, on the NSW coast, comprises about 53 hectares of mostly cleared coastal plain. In June 2006, an application for approval of a concept plan, for development of parts of Sandon Point for a residential subdivision and retirement development on about 25 hectares, was lodged under Part 3A of the Environmental Planning and Assessment Act 1979 (Planning Act).

Part 3A of the Planning Act establishes a Ministerial approval regime for "major projects". It provides two approval streams:

  • one provides for the approval of a project, so as to enable the project to be carried out; and
  • the other provides for the approval of a "concept plan", which enables a proponent to secure overarching approval for a project concept, but usually requires further environmental assessment and/or approval of components of that project under the Planning Act before those components can proceed.

The Minister approved the concept plan in December 2006. A local resident, Ms Walker, challenged the validity of the approval on several grounds. The only successful ground was that the Minister failed to consider climate change flood risk for the project when determining the application for approval of the concept plan.

ESD and climate change

Justice Biscoe provided a lengthy analysis of the history of climate change in Australian - and international - law and policy, through the concept of ecologically sustainable development (ESD). He described the goal of ESD as being "critical to the survival and well-being of the human race and other species".

ESD has been adopted into mainstream discussion, when considering environmental and economic decision-making, over the last few years in Australia.

As Justice Biscoe indicated, however, ESD is not an end in itself, nor is it an overriding consideration. Rather, as the NSW statutory definition provides, ESD "requires the effective integration of economic and environmental considerations in decision-making processes".

Addressing climate change flood risk

Justice Biscoe reviewed the material on the project which the Minister had when making his decision, and found that the relevance of climate change flood risk was not considered by the Director-General or the Minister. He observed that in the voluminous documents that were before the Director-General and the Minister, climate change was addressed only in the project applicant's own assessment documents, and there it was addressed in a very limited way, and in a different context (that is, project design features which would reduce energy consumption, and opportunities for residents to use public transport instead of cars).

The Director-General of the Department of Planning, in preparing a report for the Minister on the application for a concept plan, has a statutory obligation to consider "any aspect of the public interest that the Director-General considers relevant to the project". Justice Biscoe, following a line of recent cases, held that the "public interest" required the Director-General to form an opinion as to what aspects of ESD, if any, are relevant to the project and therefore must be included in the Director-General's environmental assessment report.

Interestingly, Justice Biscoe said that if the Director-General had decided (and recorded his decision) that climate change flood risk was not relevant to the project, he did not think the Minister would have had an independent obligation to consider it.

However, in this case, since the Director-General did not specifically address it, he turned to the question of whether, in the circumstances, the Minister has an implied obligation to consider ESD at the level of particularity alleged by Ms Walker - ie. whether the Minister was required to consider the climate change flood risk.

Justice Biscoe had regard to the subject matter, scope and purpose of the Planning Act, the fact that no document before the Minister appeared to have addressed the climate change flood risk and the gravity of the potential consequences of climate change. Amongst other things, he noted that:

  • climate change was "a deadly serious issue" which "has loomed ever larger in the public and political eye for years";
  • the Intergovernmental Panel on Climate Change Fourth Assessment Report (2007), which has received a great deal of public attention, predicted specific coastal impacts in Australia and New Zealand;
  • the NSW Government was obviously concerned about climate change, as evidenced by the fact that it had appointed a Minister for Climate Change; and
  • "climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal plain development".

In these circumstances, Justice Biscoe decided that the Minister did have an implied obligation to consider whether climate change flood risk was relevant to the project and, if so, to take it into account in making his decision.

Further, Justice Biscoe held that this was not a factor so insignificant that failure to take it into account could not have materially affected the decision. Hence, the Minister's approval of the concept plan was found to be void, as the Minister failed to take into account a relevant consideration, being the climate change flood risk.

So how should climate change be addressed?

The case law in NSW is setting a clear direction - climate change must be addressed in the project approval process. As many recent cases illustrate, the validity of an approval can hinge on whether the regulatory agency has addressed climate change when it should. The courts have stopped short of describing the way in which it should be addressed - quite rightly, as that it not their role. So where does this leave proponents?

In the absence of clear guidance from the regulatory agencies, proponents must ensure that their own assessment reports deal with climate change in a relevant and meaningful way, to arm the regulatory agencies with the information they need to discharge their statutory responsibilities.

Proponents do not necessarily need detailed quantified analyses of climate change related impacts, as the Court's decision in the recent challenge to the concept plan approval for the Carlton United Breweries site in central Sydney demonstrates. They do, however, need to identify the climate change interactions which are relevant for their projects, and ensure that their assessment reports address these interactions.

The Court's comments in the Sandon Point case about the flexibility of concept plan approvals should reassure some proponents. Concept plans are clearly not appropriate for all developments, but can prove helpful when used judiciously.

The Minister has lodged an appeal in the Sandon Point case, which will be heard in July. We all await the Court of Appeal's decision with great interest.


1 See, for example, Gray v Minister for Planning (2006) 152 LGERA 258, Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59, and Drake-Brockman v Minister for Planning [2007] NSWLEC 490.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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