Australia: Sea Level Policies On The Rise!

The NSW Department of Environment and Climate Change (DECC) has issued a draft Sea Level Rise Policy Statement (Policy Statement) for consultation. The Policy recommends setting sea level planning benchmarks for a rise relative to 1990 mean sea levels of up to 40cm by 2050 and 90cm by 2100. A Technical Note has also been prepared which explains how these benchmarks were derived from Intergovernmental Panel on Climate Change and CSIRO reports. Submissions on the draft Policy Statement are due by Friday 3 April 2009.

Sea Level Planning Benchmarks

The Policy Statement sets out the state government's approach to "sea level rise, the risks to property owners from coastal processes, and the assistance the Government provides to councils to reduce the risks of coastal hazards". It includes the warning that "the Government does not have nor does it accept specific future obligations to reduce the impacts of coastal hazards and flooding caused by sea level rise on private property".

The draft Policy Statement emphasises that the adopted benchmarks have been prepared to support consistent consideration of sea level rise in land-use planning and coastal investment decision making, however there is no regulatory or statutory requirement for development to comply with the benchmark.

The Policy Statement clarifies that the benchmark is not intended to be used to preclude development of land projected to be affected by sea level rise. The goal is to ensure that such development recognises and can appropriately accommodate the projected impacts of sea level rise on coastal hazards and flooding over time through appropriate site planning and design. The Department of Planning will be preparing guidelines on how sea level rise should be considered in land use planning and development approval decisions by Councils.

Objectives Of Policy

Increased sea levels have two broad and related impacts:

  • A permanent increase in sea levels relative to current sea levels;
  • Increased coastal hazards (particularly beach erosion) and flooding risks during major storms.

The primary objective of the Policy Statement is to minimise the social disruption, economic costs and environmental impacts resulting from long term sea level rise. To achieve these objectives, the New South Wales Government will:

  • Promote an adaptive risk based approach to managing sea level rise impacts;
  • Provide guidance to local councils to support this sea level rise adaptation planning;
  • Encourage appropriate development of land projected to be at risk from sea level rise;
  • Continue to provide emergency management support to coastal communities during times of floods and storms;
  • Continue to provide updated information to the public about sea level rise and its impacts.

What Are The Other States Doing?

Most other States have also developed sea level rise benchmarks. For example, in Victoria, the Victorian Coastal Strategy 2008, established under the Coastal Management Act 1995, recognises a projection of a sea level rise between 0.18-0.59m by 2019–2099. Until national benchmarks for coastal vulnerability are established, a policy of planning for sea level rise of not less than 0.8m by 2100 is required to be implemented.

Judicial Consideration Of Sea Level Rise

There have been various recent cases in different jurisdictions which have considered the implications of sea level rise. For example, in the NSW case of Walker, the NSW Land & Environment Court considered that the Minister for Planning was obliged to take into account whether the impacts of a proposed flood constrained coastal plain project would be compounded by climate change flood risk (see our legal update on this case).

More recently, the Victorian Planning Panel considered a Waterways and residential development at Point Lonsdale. The most contentious issue at the Panel hearing was the hydrology of the site and the effective operation of the waterways system, made more complex by the implications of climate change and sea level rise. The Panel noted that planning for the effects of climate change is a difficult and complex issue and one that is emerging as a key consideration in a range of projects. Ultimately the Panel was satisfied that the proposal planned for the upper limit of any impact of sea level rise and storm surge (should it occur) and recommended that it should be approved.

The Victorian Civil and Administrative Tribunal has also recently engaged in its first significant discussion of sea level rise and the risk of coastal inundation due to the effects of climate change, confirming that these matters are relevant to consider in appropriate circumstances (Gippsland Coastal Board v South Gippsland SC & Ors (No 2) [2008] VCAT 1545). The Tribunal, applying the precautionary principle, considered that increases in the severity of storm events, coupled with rising sea levels create a reasonably foreseeable risk of inundation of the subject land and proposed dwellings and that, without any urgent or overriding need for the proposed development, this presented a real and unacceptable risk. The Tribunal acknowledged that the relevance of climate change to the planning decision-making process is still in an evolutionary phase and, whilst not hearing expert evidence on the issue, accepted that there is 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.

Sea level rise has also been the subject of consideration by the Supreme Court of South Australia, on appeal against a decision of the Environment, Resources and Development Court, in Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57. Justice Debelle found that the proposal to subdivide a large parcel of coastal land offended provisions of the Development Plan as it did not provide an appropriate width for an erosion buffer. The Development Plan requires that the width of an erosion buffer should be based on the consideration of the effect of a 0.3m sea level rise over the next 50 years on coastal processes and storms and the availability of practical measures to protect the development from erosion caused by a further 0.7m sea level rise over the subsequent 50 years.

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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