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Focus: Climate Change – August 2008

Coastal development refused on climate change grounds

In brief: In a landmark decision, the Victorian Civil and Administrative Tribunal has refused development consent to a housing development in South Gippsland because of climate change considerations, including the threat of increasing storm severity and rising sea levels. Partner Paul Lalich (view CV), Lawyer Fleur Ramsay and Paralegal Madeleine Ellicott report on the decision.

How does it affect you?

  • In future, climate change considerations, especially sea level rise, will have significant implications for coastal development and must be taken into account when making and reviewing planning decisions.
  • This case reflects the increased significance of the 'precautionary principle' in planning decisions, and its use as a basis for taking into account the possible adverse impacts of climate change on development.
Background

The Victorian Civil and Administrative Tribunal's (VCAT) decision in Gippsland Coastal Board v South Gippsland SC & Ors (No 2) [2008] VCAT 1545 (Gippsland) is significant as it is the first Australian 'merits' review decision to use climate change impacts as a ground for the refusal of development consent in the absence of specific legislative provisions making consideration of the issue mandatory. In Northcape Properties Pty Ltd v District Council of York Peninsula1 (Northcape), the Supreme Court of South Australia refused consent to a coastal development on the ground that the development assessment had failed to take into account erosion of the coastline predicted to be the result of projected rising sea levels. However, in that case, the relevant development planning policy specifically required consideration of sea levels in the first 100 years of a development's life.

The South Gippsland Shire Council granted approval to six permit applications for dwellings on Crown allotments in the Grip Road area of Toora, a farming zone close to the coast. Subsequently, the Gippsland Coastal Board applied for a merits review in VCAT.

VCAT refused consent to the development on three grounds. The first two grounds of refusal related to inconsistency with zoning objectives and planning controls.
Significantly, however, the third ground of refusal was that the location of the development was not suitable for residential development given the unacceptable risk of sea level rise and flooding inundation.

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Legislative considerations

The specific consideration of sea level rise is not explicitly set out in Victorian planning provisions. However, section 60(1)(e) of the Planning and Environment Act 1987 (Vic) states that, before deciding 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 ' (VCAT's emphasis). It was held that the requirements of this section were 'sufficiently broad to include the influence that climate change and coastal processes may have on the proposed developments'.

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Precautionary principle

The VCAT decision to refuse development consent on the third ground turned on its application of the 'precautionary principle'. This is the principle that where there is a threat of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.2 This principle is present in varying forms in environmental legislation across Australia. Here, although VCAT conceded that there was an absence of scientific certainty as to the degree of sea level rise, there was still a 'reasonably foreseeable' risk of inundation to the land and proposed dwellings that was unacceptable in the context of the proposed development. Moreover, it was no longer sufficient to rely on the historical record of sea levels or inundation from coastal or inland storm events that planners normally rely on in assessing future potential impacts.

Significantly, the only evidentiary material before VCAT were studies undertaken by the CSIRO, which were only of a preliminary nature, on the effects of climate change, which VCAT deemed sufficient evidence of risk. This goes further than other decisions, such as Northcape, in which there was substantial and complex scientific evidence as to the effects of sea level rise. In its decision in Gippsland, VCAT said:

We accept that there is growing evidence of sea level rises and risk of coastal inundation. While we acknowledge that there is uncertainty as to the magnitude of sea level rise, it is evident that the consequences of such rises in level will be complex due to the dynamic nature of coastal environment. Put plainly, rising sea levels are to be expected. The range of impacts may well be beyond the predictive capability of current assessment techniques. In the face of such evidence, a course of action is warranted to prevent irreversible or severe harm.

  

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Implications

As acknowledged by VCAT in this case, the relevance of climate change in the planning decision-making process is still at an 'evolutionary phase'. However, Gippsland is the latest in a series of decisions, such as Northcape and Walker v Minister for Planning3, which herald an increased willingness of courts and tribunals to bring climate change considerations into the planning process4. In particular, principles of ecologically sustainable development, such as the precautionary principle, which address climate change will be of increased importance in future environmental and planning decision-making.

Although this case was decided under the Victorian Planning and Environment Act, similar findings could be made under similar provisions in other states' planning legislation. For example, s79C of the Environmental Planning and Assessment Act 1979 (NSW) states that the 'suitability of the site for the development'5 and also the 'public interest'6 are relevant considerations in determining development applications. The NSW Land and Environment Court has found in the past that these sections are sufficiently broad to import the principles of ecologically sustainable development into the planning and assessment process.

If other courts or tribunals follow VCAT's broad construction of such provisions, climate change factors will become relevant considerations in merits planning assessment. Proponents and consent authorities will need to ensure that development proposals and assessments consider fully all impacts associated with climate change to ensure not only that the development on the ground is sound, but that the assessment and determination process is robust and not susceptible to legal challenge.

Footnotes
  1. [2008] SASC 57.
  2. Rio Declaration on Environment and Development, Principle 15.
  3. [2007] NSWLEC 741.
  4. See also Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Limited [2007] QCA 338; Gray v Minister for Planning [2006] NSWLEC 720; Drake-Brockman v Minister for Planning [2007] NSWLEC 490.
  5. Environmental Planning and Assessment Act 1979 (NSW), s 79C(c).
  6. Environmental Planning and Assessment Act 1979 (NSW), s 79C(e).

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