Australia: WA Parliament considers Climate Change Readiness Bill

Introduction

Climate-change induced impacts, such as an increase in the frequency and severity of storm events, are likely to lead to greater rates of coastal erosion and inundation from storm surge. Impacts on state and local urban infrastructure due to extreme weather events are also a major risk factor. State and local government face the prospect of litigation arising from poor planning decisions that fail to accommodate a changing coastal environment.

To prepare for the effects of climate change and to tackle coastal erosion, the WA government released a number of consultation drafts of the Climate Change Readiness (Coastal Planning and Protection) Bill 2012 (Bill).Following stakeholder feedback, a revised version of the Bill was introduced into the WA Parliament in November 2012. The Bill places an obligation on the Western Australian Planning Commission (WAPC) to make a state wide coastal plan (WA coastal plan) to achieve co-ordinated and integrated planning and decision-making in the coastal zone. Local authorities must also prepare local coastal plans which reflect the adaptation and management principles set out in the WA coastal plan.

The Bill is intended to operate in conjunction with an updated State Planning Policy 2.6 State Coastal Planning (SPP 2.6) which was recently released for public comment. The SPP 2.6 will provide the policy foundation and framework that will support the Bill. The Bill goes further than SPP 2.6 by guiding coastal adaptation and management by local governments and giving legislative direction to coastal planning decisions.

Coastal planning

The WA coastal plan has legislative effect and will override any local planning scheme or local law to the extent of any inconsistency. The WA coastal plan will:

• identify the 'coastal zone'
• identify the natural management framework of the WA coast including a map of the coastal compartments¹ and sediment cells²
• identify the 'transition zone' through a vulnerability assessment³ (the transition zone being the coastal zone area most vulnerable to the impacts of coastal hazards), and
• set out adaptation and management principles, guidelines and measures which give direction to the content of local coastal adaptation and management plans prepared by coastal councils.

Western Australian local government will play an essential part in ensuring integrated management of the coast to protect its environmental, social, cultural and economic values. Coastal councils (or other controlling body) in control of land that is in a coastal compartment must prepare an adaptation plan and a management plan for that land. In preparing these plans, the controlling body must consult with the public, Aboriginal traditional owners and relevant public authorities and federal agencies.

For example, a draft local coastal adaptation plan must provide for the following matters:

• land use planning that will supplement development controls
• dune management and revegetation to contain or reverse erosion
• planned retreat and buffers
• a statement of performance indicators, monitoring and reporting arrangements, and
• other matters that are prescribed by regulation.

The Coastal Planning and Coordination Committee established under the Planning and Development Act 2005 (WA) will be reactivated to advise the WAPC on matters relating to coastal planning and when changes are required to the WA coastal plan. Both the WAPC and local authorities must refer any draft coastal plan to the WA Environmental Protection Authority (EPA) for a decision on whether the plan should be assessed under section 48A of the Environmental Protection Act 1986 (WA). The EPA is obliged under the Bill to notify public authorities of changes in climate science to ensure planning decisions are based on the most up-to-date information.

No compensation is available for land that is injuriously affected by the making of the WA coastal plan or a local coastal plan.

Application of the precautionary principle

One of the subsidiary objects of the Bill is to apply the precautionary principle in planning decisions that affect the coastal zone. The precautionary principle must also be applied in preparing the vulnerability assessment to identify the 'transition zone'.

The precautionary principle permits the taking of preventative measures without waiting until the reality and seriousness of the threats are fully known⁴. Australian Courts and Tribunals are applying the precautionary principle when considering proposals in the coastal zone⁵, often supporting the decision of local councils to refuse consent to development on land projected to be at risk from sea level rise. The NSW Land and Environment Court has recognised that climate change induced impacts, such as coastal erosion and flooding from severe weather events, are relevant public interest considerations when determining a development application⁶.

Development in the transition zone

If the Bill is passed, a consent authority (referred to in the Bill as the 'responsible authority') will only be able to permit certain exempt and short-term development in the transition zone.

The Bill provides that 'exempt development' includes a minor renovation or change to an existing development that does not have an adverse impact on the present or likely future coastal processes. It also extends to essential services infrastructure that is prescribed to be exempt development or is in an area prescribed as a cyclone prone area. Exempt development must not be approved in the transition zone if the development is at significant risk of being harmed by a coastal hazard or the development poses a significant risk to coastal processes. A marina or an artificial waterway development will not be exempt development for the purposes of the Bill. It will be possible to obtain development approval for marinas under the Bill but significant canal developments would be prohibited⁷.

'Short-term development' is development that:

• is for public use or public enjoyment, and'
• by its nature, must be carried out in the transition zone despite the risk of impact from a present or likely coastal hazard, and
• is capable of being abandoned, if necessary without significant adverse impact in the transition zone.

An artificial waterway or canal is excluded from the definition of short-term development.

Short-term development must not be approved in the transition zone if the development poses a significant risk to coastal processes. However, it may be approved if the responsible authority is satisfied that the impact of the development will not endure beyond the useful life of the development.

Where land is included in the transition zone, a memorial to this effect must be lodged with the Registrar of Titles and the owner notified.

The Bill does not permit owners of coastal land to install emergency coastal protection works for the purpose of protecting their own land from coastal hazards. This can be contrasted to NSW, for example, where the Coastal Protection Act 1979 permits the installation by a private landowner of temporary coastal protection works, such as sandbags, without the need to obtain development consent in 12 authorised locations. The enhanced rights afforded to private landowners in NSW followed the major storm that hit Belongil Beach, Byron Bay in May 2009⁸.

Coastal protection notices

The Bill provides that if short-term development is damaged by erosion, accretion or inundation from sea surge for example, then the WAPC may serve a coastal protection notice requiring the removal of the development within a specified period. The notice may be served on one or more of the following

• the owner of the land
• the occupier of the land
• a person who the WAPC considers is able to practicably comply with and give effect to the notice.

The person served with a notice must restore the land to a condition as near as possible to the condition of the land before the development occurred. It is a requirement of the Bill that the coastal protection notice is registered on the title to the affected land and, therefore, binds successors in title.

The State Administrative Tribunal has jurisdiction to review decisions of the WAPC relating to coastal protection notices.

Failure to comply with a notice is an offence which attracts a maximum penalty of $200,000 and a further $25,000 for each day the offence continues.

Carve-out of liability for protected persons

The Bill provides exemption from civil liability to 'protected persons' (including the State, the Minister, public authorities, local government, and officers and members of these entities) for acts or omissions relating to:

• the performance or purported performance, in good faith, of a function under the Act, or
• any advice furnished in good faith relating to the likelihood of any land in the coastal zone being adversely affected by a coastal hazard or the nature or extent of a coastal hazard, or
• anything done, in good faith, insofar as it relates to the likelihood of land in the coastal zone being adversely affected by coastal processes.

A 'protected person' is taken to have acted in good faith if the advice was furnished or the thing was done substantially in accordance with the WA coastal plan and any local coastal adaptation plan or management plan for the relevant area. The onus of disproving this rests with the complaining party. The exemption extends to the matters listed in section 74(5) of the Bill which include the making of a local planning scheme, the granting of development consent, the carrying out of emergency coastal protection works, the preparation of the WA coastal plan and the giving of a coastal protection notice.

Also, the defence in section 5X of the Civil Liability Act 2002 (WA) may apply to 'protected persons' if there is no exemption from liability under the Bill. Essentially section 5X provides that a policy decision cannot be used to support a finding of fault in the performance or non-performance of a public function by a public body or officer, unless the decision was so unreasonable that no reasonable public body or officer could have made it.

Implications

The Bill will place significant restrictions on the type of development permitted in the coastal zone. It is essential that purchasers of coastal properties conduct thorough due diligence to ensure they are aware of land use restrictions that may apply. Development may only be carried out in the coastal zone if a vulnerability assessment of the land has been included in the WA coastal plan or the development is short-term or exempt and is authorised under the Act and any relevant local planning scheme. Only short-term or exempt development is permitted in the transition zone. Also, a land surrender condition for coastal management purposes may be imposed by the WAPC to approvals for subdivision or amalgamation of lots in the transition zone.

Vulnerability assessments are likely to become a common feature of building proposals located in areas subject to coastal hazards. Developers will need to assess the potential for climate change induced impacts on their projects and incorporate appropriate adaptation measures into their designs. Consent authorities must consider the appropriateness of development proposals in areas that are subject to coastal hazards and apply an adaptive management approach that is sufficiently flexible to accommodate updated climate projections.

How can we help?

We are able to assist by:

• conducting due diligence investigations and local council inquiries prior to the purchase and development of coastal land
• advising on restrictions that apply to the development of land located in the coastal zone
• appearing before the WA State Administrative Tribunal in the review of decisions on coastal protection notices
• preparing submissions in response to public consultation processes, including stakeholder feedback to government on the implications of the Bill, the content of the WA coastal plan and coastal plans prepared by local councils

Footnotes

¹'Coastal compartment' means a component of the geological framework of the coast that is bounded alongshore by large geographic structures, changes in geology or geomorphic features exerting structural control on the platform of the coast, and containing a particular land system.

²'Sediment cell' means a section of the coast and its associated nearshore area within which the movement of sediment is apparent through identification of areas which function as sediment sources, transport pathways and sediment sinks.

³'Vulnerability assessment' means an assessment of the vulnerability of land systems to climate and other environmental change.

⁴ See Telstra Corporation v Hornsby Shire Council [2006] NSWLEC 133.

⁵ See Gippsland Coastal Board v South Gippsland Shire Council & Ors (No 2) [2008] VCAT 1545; Charles & Howard Pty Ltd v Redland Shire Council (2007) QPELR 58.

⁶ See Minister for Planning v Walker [2008] NSWCA 224; Aldous v Greater Taree City Council [2009] NSWLEC 17

⁷ Second Reading speech, Legislative Council, Parliament of Western Australia, Thursday 29 November 2012.

⁸ See the NSW Land and Environment Court decision of Vaughan v Byron Shire Council [40342 and 40344 of 2009] which held that the Council must maintain, monitor and repair beach stabilisation works designed to offset the effects of erosion caused by severe storms.

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.