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Focus: NSW Government releases policy statement on rising sea levels

17 March 2009

In brief: The New South Wales Government has released its Draft Sea Level Rise Policy Statement for public comment. The policy outlines the government's response to rising sea levels and the associated effects of climate change. Partner Jim Parker (view CV) and Lawyer Fleur Ramsay report on the policy and consider potential implications for coastal planning, development and land ownership in NSW.

How does it affect you?

  • The policy sets a sea level rise benchmark to be applied consistently in strategic coastal planning and individual development assessments and provides some level of planning certainty for local councils, property owners and developers.
  • The policy outlines the government's commitments and role in relation to sea level rise and its associated effects. The policy makes it clear that, while the government is committed to minimising the impact of rising sea levels, it is taking a 'buyer beware' approach and does not accept legal responsibility for the impact of future rises in sea levels.

What is it?

The policy sets out the government's role in relation to sea level rise and supersedes the 1988 NSW Coastline Hazard Policy. The policy's primary objective is to 'minimise the social disruption, economic costs and environmental impacts resulting from long-term sea level rise'.

The government has identified five commitments to achieve its policy objective. These are:

  • promote an adaptive, risk-based approach to managing sea level rise impacts;
  • provide guidance to local councils to support their sea level rise adaption planning;
  • encourage appropriate development on land projected to be at risk from rising sea levels;
  • continue to provide emergency management support to coastal communities during times of floods and storms; and
  • continue to provide updated information to the public about rising sea levels and its effects.

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Impacts – rising sea levels

The policy projects that NSW's sea level will rise 40cm by 2050 and 90cm by 2100, and will have the following two related impacts:

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

The sea level rise projection has been accepted as the policy's benchmark (Sea Level Rise Benchmark) and is taken from the Department of Environment and Climate Change's (DECC) Technical Note: Scientific Basis of the 2009 Sea Level Rise Benchmark, which accompanies and supports the policy.

The technical note takes its projections principally from reports of the Intergovernmental Panel on Climate Change (IPCC). While the IPCC reports give a range of sea level rise projections, the associated technical paper has accepted the upper limit projection or highest model and accepts current scientific evidence suggesting that the IPCC may have underestimated future sea level rise. The technical note accepts data suggesting that the current trends of greenhouse gas emissions has accelerated since 2000 and sea levels may be responding more quickly to climate change than the current generation of models suggest.

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Policy commitments

Adaptive risk-based management

The government will promote an adaptive risk-based approach to managing sea level rise. This approach recognises that there are potentially significant risks caused by sea level rise (such as coastal erosion and flooding inundation) and that the accuracy of the sea level rise projections would improve over time.

While the current projections are not certain, the government has adopted the Sea Level Rise Benchmark to enable consistent consideration of sea level rise within decision-making frameworks such as development assessment under the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act).

The government will periodically review the Sea Level Rise Benchmark and ensure that it is consistent with updated information such as the IPCC's data.

Support to local councils

The government will continue to provide funding assistance to local councils to help them prepare studies identifying areas of risk from coastal flooding and hazards. Funding priority will be given to those areas most at risk. In turn, the government expects that this information will be used to inform the development of future planning and land-use instruments.

The government will also provide guidance and assistance to reduce risks to private and public property in NSW, but financial assistance is unlikely to extend to purchasing or protecting all properties at risk from coastal hazards and sea level rise.

The allocation of funding assistance to local councils for coastal works will prioritise the protection of public lands and public infrastructure, and then private land. However, the policy does indicate the criteria to be applied to the protection and purchase of private property where relevant, including the magnitude of current and future hazards and the contribution to the project's costs from the local council and benefiting landowners, taking into consideration genuine hardship for affected coastal residents.

Appropriate coastal development

The Sea Level Rise Benchmark is intended to provide some consistency in the consideration of sea level rise in development assessments. This is a welcome development as the consideration of sea level rise by planning decision-makers has been to date ad hoc and attenuated by much uncertainty about the appropriate scientific measure to apply.

The Sea Level Rise Benchmark is not intended 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 is currently producing guidelines on how sea level rise should be considered in development assessments, but the policy does not provide any further information on those guidelines and what legal effect they are intended to have.

Emergency support

The government has stated it will continue to provide support to coastal communities during and following floods and major storms. However, it will generally not provide any compensation for affected properties, including where hazards or risks are increased by sea level rise.

Further information

The government will continue to provide updated information on sea level rise and its impact. It sees current and credible information as important to:

  • supporting the adaptation of the community to rising sea levels;
  • supporting communities and the private sector to make appropriate investment decisions in coastal areas; and
  • assisting the insurance industry to price risks.

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Risks to property owners and coastal development implications

The policy makes it clear that while the government has provided a framework for its commitments and role, which includes some financial assistance to properties at greater risk, it is largely left to private property owners and developers to bear the legal and financial risks of sea level rise. In particular, the government has taken the view that these processes and associated impacts of sea level rise are 'natural processes' rather than a man-made one. As such, the government accepts no obligations either under common law or statute to reduce the impacts of the hazards caused by sea level rise.

It is unclear how the policy will affect NSW development assessments until the Department of Planning releases its coastal development planning assessment guidelines. However, at the very least, local councils will be required to take the Policy and Sea Level Rise Benchmark into account by operation of section 79C of the EP&A Act, which obliges councils to consider the 'public interest' and social and economic effects of a development.

The introduction of a Sea Level Rise Benchmark is a welcome step, as it will give developers and coastal land owners some certainty of what measure will be applied to coastal developments and a greater understanding of how climate change will affect coastal properties in NSW. That said, the government has accepted an adaptive, risk-based approach, and the goalposts are likely to be moved periodically in line with changing credible scientific knowledge, particularly the next IPCC report (due 2012) and CSIRO data.

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Submissions

Submissions on the policy and the technical note can be made to the DECC by 5pm, Friday 3 April 2009. If you would like some assistance with a submission or have a query regarding this or any other planning matter, please contact any of the people below.

Published 17 March 2009

For further information, please contact:

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