Australia: It Cuts Both Ways - Impacts Of Climate Change On Your Development

Key Point

• As a recent Victorian decision demonstrates, you must consider not only the effect of your development proposal on climate change, but also the effect of climate change on your proposal.

There's a growing body of cases in which Australian courts and tribunals have rejected development proposals because of the effect of climate change on the proposals, not the effect of the proposals on climate change.

A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) - Gippsland Coastal Board v South Gippsland Shire Council & Others (29 July 2008) - highlights the increasing importance of climate change in the assessment process, and provides some important guidance for proponents on when and how climate change will be relevant.

The attraction of rural residential living

The case concerned six proposals for single residences in the Grip Road area, near the township of Toora located approximately 2.5 kilometres from the coast in southern Victoria. The area is open farmland and in a Farming Zone. According to the VCAT findings, it is also low-lying, prone to high water tables and water logging, subject to flooding, and is at risk of inundation from sea level rise and coastal subsidence.

Although the Grip Road area is used primarily for farming, the land is divided into more than 100 old crown allotments originally created in the 1890s, many of which are only 2-4 ha.

Several landowners proposed to erect residential dwellings on their allotments, claiming that the character of the area was shifting from farming to rural living. South Gippsland Shire Council supported the landowners and determined to grant a planning permit in each case. The Gippsland Coastal Board challenged the Council decisions claiming that:

• the dwelling developments would pose an unnecessary and unacceptable risk to the coastal environment; and

• the developments are inappropriate in light of climate change studies undertaken by CSIRO on behalf of the Board.

VCAT's decision

VCAT decided to set aside the Council decisions and directed that no permits should be granted. In the Tribunal's view, "the overwhelming weight of planning policy discourages residential development in this area".

Many of the Tribunal's concerns stemmed from the land's zoning and the planning policy framework as it applied to the Grip Road area, including coastal areas policy as contained in the State Planning Policy Framework. In this article, however, we will focus on another of the key reasons for refusal - increased risk of coastal inundation from climate change.

How is climate change relevant?

As is often the case with decisions involving ecologically sustainable development (ESD) or climate change, the Tribunal explained the legal basis for its consideration of ESD and climate change.

After referring to the need to balance competing policy objectives in favour of net community benefit and sustainable development "for the benefit of present and future generations", it had regard to the requirements of section 60(1)(e) of the Planning and Environment Act 1987.

This requires a responsible authority, before deciding an application, to consider not only any significant effects which it considers the use or development may have on the environment but also any significant effects "which the responsible authority considers the environment may have on the use or development".

The Tribunal found this requirement of the Act to be "sufficiently broad to include the influence that climate change and coastal processes may have on the proposed developments". The Tribunal then set about considering to what extent the sea level may rise and whether it has the potential to impact on the developments to such a degree as to warrant refusal.

How does climate change affect the proposals?

The Tribunal recognised that "the relevance of climate change to the planning decision making process is still in an evolutionary phase". After referring to CSIRO studies reporting that climate change would cause fewer but more intense storm events with higher storm surge levels, the Tribunal did not adopt the CSIRO findings as they had not been the subject of rigorous examination during the proceeding.

However, the Tribunal had regard to what it considered to be "a general consensus that some level of climate change will result in extreme weather conditions beyond the historical record that planners and others rely on in assessing future potential impacts".

It further stated that it is "no longer sufficient to rely on what has gone before to assess what may happen again in the context of coastal processes, sea levels or for that matter inundation from coastal or inland storm events."

The Tribunal expressed concern about the predictive capability of current assessment techniques in relation to climate change impacts on coastal developments. In these circumstances, the Tribunal sought to apply the precautionary principle - one of the core principles of ESD - which states that:

"where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation".

In the circumstances, the Tribunal decided that the increased risk of inundation was unacceptable, and there was no "imperative" or "higher order" need to build the dwellings which might override this risk. Consequently, the proposals should not proceed.

Climate change and your development proposal

The VCAT decision is not unlike recent decisions in NSW¹ and South Australia² which have refused planning approval for coastal development projects. In each case, the precautionary principle has played an important role.

Developers need to carefully consider the potential for climate change impacts to affect their development proposals and ensure that relevant impacts are adequately assessed and considered in the design of their proposals. This should include not only consideration of rising sea levels, but other predicted impacts such as changes in weather patterns (and importantly rainfall) and increasing bushfire risks.

An issue, which the VCAT decision highlighted, is what exactly are the impacts and how should they be addressed.

Proponents do not necessarily need detailed quantified analyses of climate change related impacts, as a recent NSW Land and Environment Court decision on a challenge to a planning approval for the former Carlton United Breweries site in central Sydney demonstrates (Drake-Brockman v Minister for Planning [2007] NSWLEC 490). However, they do need to identify the climate change interactions which are relevant for their projects, and ensure that their assessment reports address these interactions.

There will continue to be developments in this area in Victoria and elsewhere as further decisions are made by the courts, tribunals and panels with respect to coastal and other development proposals.

Footnotes

1 Walker v Minister for Planning [2007] NSWLEC 741 (27 November 2007). The Minister has appealed, and judgment on the appeal has been reserved.

2 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57 (4 March 2008).

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.