Adapting The Sea Level Rise In NSW: Government Guides The Way

In the March 2009 issue of Legally Green we reported on the release of the NSW Draft Sea Level Rise Policy Statement (Policy Statement) by the NSW Department of Environment, Climate Change and Water (DECCW). In October, following extensive consultation, the Policy Statement was finalised. As proposed, it adopts the sea level rise planning benchmarks for an increase above 1990 mean sea levels of 40cm by 2050 and 90cm by 2100 (Benchmarks). To support the implementation of the Policy Statement, the Department of Planning (DoP) has released the draft NSW Coastal Planning Guideline: Adapting to Sea Level Rise (Draft Guideline) and the DECCW have released two draft guides to assist councils in preparing coastal hazard and flood studies to incorporate the Benchmarks. Submissions on the Draft Guidelines and draft guides are due by Friday 11 December 2009.

What this means to you: the Implications of the Policy Statement

• The Policy Statement provides a clear statement of the NSW Government's commitment and policy direction to combat sea level rise and confirms that the Government accepts no liability either under common law or statute to reduce the impacts of sea level rise.
• Councils must use the Benchmarks when undertaking coastal and flood hazard assessments in accordance with DECCW's Coastline Management and Floodplain Development Manuals and the draft guides. Local environmental plans must give effect to and be consistent with these manuals and, as such, it is a statutory requirement that development must comply with the Benchmarks.
• Councils may be required to notify the adoption of the Policy Statement and Benchmarks in planning certificates issued pursuant to s 149 of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act).
• Where Councils adopt and choose either to apply or not apply the Policy Statement and Benchmarks, pursuant to s 733 of the Local Government Act 1993 (NSW) (LG Act), Councils will be exempt from liability in respect of any advice furnished, or anything done or omitted to be done, in good faith, relating to the likelihood of:
• • any land being flooded or the nature or extent of such flooding; and
  • land in the coastal zone being affected by a coastline hazard or the nature or extent of such a hazard.

• Consent authorities will be required to consider the Policy Statement and benchmark in determining development applications.
• Councils, State agencies, planners and developers should consider the impact of the Policy Statement and Benchmarks on the operation of any insurance or indemnities relating to their role in land-use and development of land which may be at risk from sea level rise.

Sea Level Rise

Sea level rise will have significant medium- to long-term social, economic and environmental impacts. Critically, it will cause:

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

These impacts in turn will affect coastal ecosystems, access to and use of land and freshwater, historical and cultural heritage values, and public and private infrastructure.

Policy Statement

The Policy Statement sets out the NSW 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 is accompanied by a Technical Note which explains how the Benchmarks of 40cm by 2050 and 90cm by 2100 were derived from the Intergovernmental Panel on Climate Change (IPCC) and CSIRO reports.

The objective of the Policy Statement is for coastal communities to adapt to rising sea levels in a manner that minimises the resulting social disruption, economic costs and environmental impacts. To assist in achieving this objective, the NSW Government will:

1. Promote an adaptive risk-based approach to managing sea level rise impacts. The Benchmarks have been adopted to support consistent consideration of sea level rise in land-use planning and coastal investment decision-making. Importantly, the Benchmarks must be used when undertaking coastal and flood hazard assessments in accordance with DECCW's Coastline Management and Floodplain Development Manuals and it is a statutory requirement that local environmental plans must give effect to and be consistent with these manuals. As such, it is a statutory requirement that development must comply with the Benchmarks;
2. Provide guidance to local councils to support this sea level rise adaptation planning with priority given to public safety and protecting valuable publicly-owned assets, and then to private land. Financial assistance is unlikely to extend to protecting or purchasing all properties at risk from sea level rise and any funding to protect or voluntarily purchase private property will be based on criteria established in the Policy Statement. Where assistance is provided, the Government does not assume any responsibility;
3. Encourage appropriate development of land projected to be at risk from sea level rise over time through appropriate site planning and design rather than preclude development of such land;
4. Continue to provide emergency management support to coastal communities during times of floods and storms including compensation and other payments in some cases. However, compensation will not be provided to the owners or potential developers of land affected by sea level rise;
5. Continue to provide updated information to the public about sea level rise and its impacts to support adaptation to, and appropriate investment decisions and risk pricing by the insurance industry in light of, sea level rise.

Importantly, the Policy Statement emphasises 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 under both statute and common law.

Government Guiding the Way to Adapting to Sea Level Rise

The Draft Guideline outlines a risk-based approach for strategic land-use planning and development assessment taking into account the Policy Statement and the Benchmarks. It applies broadly to all coastal areas of NSW. The Draft Guideline adopts the following six coastal planning principles:

1. Assess and evaluate coastal risks taking into account the Benchmarks (using DECCW's Coastline Management and Floodplain Development Manuals and draft guides detailed below);
2. Advise the public of coastal risks to ensure that informed land use planning and development decision-making can occur;
3. Avoid intensifying land use in coastal risk areas through appropriate strategic and land-use planning;
4. Consider options to reduce land use intensity in coastal risk areas where feasible;
5. Minimise the exposure to coastal risks from proposed development in coastal areas; and
6. Implement appropriate management responses and adaptation strategies, with consideration for the environmental, social and economic impacts of each option.
7. As noted, DECCW has also prepared the following draft Guides to assist councils in preparing coastal hazard and flood studies incorporating the Benchmarks:

Submissions on the Draft Guidelines and draft guides are due to the respective Government departments by Friday 11 December 2009.

Progress on Sea Level Rise Benchmarks in other States

As reported in our March issue, most other States have also developed sea level rise benchmarks in their coastal planning policies. For example:

• VIC - 80cm by 2100 until national benchmarks are established
• SA - 30cm by 2050 and 100cm by 2100
• QLD - 30cm by 2055 for coastal erosion prone area
• WA – 38cm for erosion potential on sandy shores

Noting the wide differences between these benchmarks, there is growing demand for the Commonwealth government to adopt a national sea level rise benchmark and planning framework to support greater cooperation and coordination between states in tackling sea level rise (see the recent report of the House of Representatives, Managing Our Coastal Zone in a Changing Climate).

Judicial Consideration of Sea Level Rise

Several recent cases across different jurisdictions have considered the implications of sea level rise for coastal land-use planning and development. In our March and August issues summaries of some of the key cases were provided. (Please see our March and August issues for further details).

Most recently, in NSW, the Land and Environment Court considered the impact of sea level rise on coastal development in Aldous v Greater Taree City Council (Unreported, Biscoe J, 8-10 December 2008, 19 February 2009). This case involved a challenge to the validity of a development consent to construct a new dwelling on a beachfront property. A key ground of appeal was the Council's failure to take into account the public interest pursuant to s 79C of the EPA Act as it failed to consider the principles of Ecologically Sustainable Development (ESD), and in particular, failed to consider and assess climate change induced coastal erosion. Referring to his decision in Walker v Minister for Planning (summarised in our legal update in December 2007 and the March issue) and the successful appeal of that decision (Minister for Planning v Walker [2008] NSWCA 224 (summarised in our legal update in October 2008)), Biscoe J confirmed that consent authorities are required to consider public interest when determining a development application under Part 4 of the EPA Act and this includes ESD. On the facts, his Honour held that the Council had taken the issue of coastal erosion and its inducements by climate change seriously and not merely adverted to the information regarding climate change induced coastal erosion or given it mere lip service. Although his Honour dismissed this ground of appeal, he upheld the appeal on other grounds. The judgment provides a good overview of DECCW's Guideline, Practical Consideration of Climate Change, climate change cases specifically considering sea level rise, and the Stern Review, IPCC Assessment Reports and the Garnaut Climate Change Review.

Council Exemption from Liability, Insurance and Disclaimers

The implications of the Policy Statement and Benchmarks for the liability of Councils will be discussed in detail in a future Legal Update. Importantly, pursuant to s 733 of the LG Act, where Councils adopt and choose to either apply or not apply the Policy Statement and Benchmarks, Councils will be exempt from liability in respect of any advice furnished, or anything done or omitted to be done, in good faith, relating to the likelihood of:

• any land being flooded or the nature or extent of such flooding; and
• land in the coastal zone being affected by a coastline hazard or the nature or extent of such a hazard.

This is especially the case noting the High Court judgement of Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660. Nevertheless, Councils may still consider adopting a disclaimer regarding their adoption and application of the Policy Statement and Benchmarks similar to that of the NSW Government.

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.