The decision in Gippsland Coastal Board v South Gippsland SC & Ors (No 2) [2008] VCAT 1545 was handed down by VCAT Deputy President Helen Gibson and Member Ian Potts on 29 July 2008. In the first decision of its kind in Australia, the Tribunal refused the development of six coastal dwellings (the proposed development) due partly to the threat of increasing storm severity and rising seas levels as a result of climate change.
Background
Mark Bartley, DLA Phillips Fox Partner acted on behalf of the Gippsland Coastal Board, (the Board). The Board made an application under section 82 of the Planning and Environment Act 1987 (Vic) (P&E Act) for the review of the decision by the South Gippsland Shire Council (the Council) to grant planning permits for the proposed development. The land comprised of six crown allotments in the Grip Road area of Toora, a Farming Zone close to the coast about 197 kilometres south-east of Melbourne. Each lot was approximately 3-4 hectares in area and the land is an active farming area used for cropping and grazing. The land is low-lying, prone to high water tables and water logging, subject to flooding and is at risk from rising sea levels and coastal subsidence. An Environmental Significance Overlay 3 and a Land Subject to Inundation Overlay covered all the subject land.
Rural Policy
The Local Planning Policy Framework (LPPF) in the South Gippsland Planning Scheme (the Scheme) acknowledges the importance of agriculture, which had always been the major industry within the Shire. The Farming Zone aims to provide for the use and retention of the land for agriculture. It therefore requires a permit for a dwelling on a lot size of less than 40 hectares. The respondents argued that 'this particular area has probably passed the point of no return in regards to the change from rural to rural living'. The Council argued that the Grip Road area was a de facto rural residential area and submitted that the subject land was suitable for dwellings having regard to the lot size, rural residential character of the area and proximity to Toora. However, there was no policy support for this position.
The Tribunal stated that as there were 100 allotments in the immediate area and only 20 dwellings (in addition to three other permits issued for dwellings not yet constructed), there were still less than a quarter of allotments that had been developed. Approval of an additional six dwellings would erode the open farming land character and 'tip the balance' in favour of a more developed rural residential character. The Tribunal stressed that Victoria's agricultural land is a 'valuable and finite resource that makes a significant contribution to the economy of the State and individual municipalities'. The proposal for a dwelling on each piece of land was inconsistent with the purpose and decision guidelines of the Farming Zone and arguably the permits should have been refused on that basis alone.
The State Planning Policy Framework (SPPF) sets out planning policy and objectives for Victoria's coastal areas. However the LPPF did not contain a policy relating to coastal areas. Further, no Local Structure Plan had been developed for Toora. Council submitted that based on the qualities of the Grip Road area, which it stated distinguished that part of the Shire from other areas in which crown township subdivisions could be found, any interpretation of the SPPF that would treat the Grip Road area as necessarily falling outside the township boundary must be seriously questioned. The Tribunal rejected this argument and noted that if the Council considered that the boundary of Toora township should not terminate at the edge of the urban zoned land, but include Grip Road area, then it should amend the Scheme. The Tribunal noted that treating the Grip Road area as a de facto rural living zone was contrary to both the actual zone provisions and the SPPF (including coastal policies).
Climate Change - A 'Relevant Consideration'
The Board identified two grounds of environmental concern for 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 Board. These studies attempted to quantify the sea level rise that may occur under increased wind surges and more generally, from sea level rises in combination with storm surges. The Tribunal noted that whatever the degree of impact, the coast would suffer significant wind and storm surge effects. The Tribunal noted that the Victorian Planning Provisions do not specifically require the effects of climate change to be taken into account. However, the Tribunal referred to section 60(1)(e) of the P&E 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'.
Deputy President Gibson and Member Potts determined that section 60(1)(e) was sufficiently broad to allow the Tribunal to consider the influence that climate change may have on the proposed development.
Decision
The Tribunal accepted the general consensus that some level of climate change would result in extreme weather conditions beyond the historical record that planners and others rely on in assessing future potential impact. On behalf of the Board, the Tribunal was urged to take a precautionary approach to the issue (otherwise known as the 'precautionary principle'). The Tribunal, in doing so, held that that the likelihood of an 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'. In addition to the climate change ruling, it was found that an 'overwhelming weight of planning policy discourages residential development' in the area. The Tribunal held that dwellings in the Grip Road area would erode the visual landscape and environmental and agricultural qualities of this area, which was contrary to coastal policy.
The Tribunal did state 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, it appears from the decision that the Tribunal is taking the effects of climate change very seriously in recognising it as a relevant consideration in planning matters. This will no doubt have significant implications for future coastal development.
Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
