19 September 2012 – The NSW government’s policy backflip on orderly retreat from coastal development threatened by rising sea levels has thrown planners and advisers into chaos. The only clarity is that the new regime will have no impact on either the physical or insurance risk for such property.

Special Minister of State Chris Hartcher said early last week that the NSW government would drop “Labor’s onerous” and “heavy-handed” statewide sea level rise planning benchmarks” of 40 cm by 2050 and 90 cm by 2100.

Instead the government wants new benchmarks individually tailored to each location since sea level rises vary along the coast depending on local conditions.

The government also wants to remove the compulsory notices on section 149 certificates warning buyers that the property they are about to buy could flood.

Hartcher’s announcement responds to delegations of coastal property owners furious that they are prevented from erecting barriers against erosion of their land – and land values – every time there is a storm.

At Belongil Beach, next to Byron Bay, property values halved once valuers recognised that the threat of rising sea levels was backed by government scientists.

At Lake Macquarie the local council started warning prospective buyers in the section 149 certificates that their intended purchases might flood late last year.

Prices went through the floor and no-one blamed the market for the speed of collapse.

Some of the owners held public meetings and brought in climate denying spruikers to get the message through that sea levels would not rise.

It worked.

“The NSW Government has listened to the concerns of communities and councils about previous coastal erosion reforms and the uncertainties they caused for landholders,”  Hartcher said.

But by telling councils to ignore the sea level rise benchmarks, the state government has introduced uncertainty about how to deal with hazard lines – on known or expected risk – when development approvals are granted.

It could be that councils are now required to ignore the only available scientifically based assessments of expected flooding currently available.

A just-published review of the state benchmarks by the NSW Chief Scientist Mary O’Kane, ordered by the government, says the science is “adequate” and that the sea level forecasts were reasonable.

Ms O’Kane confirmed this interpretations to The Fifth Estate after appearing at a panel last week for Green Capital in Sydney.

“We looked at the science and the process was good and the outcomes were right,” O’Kane said.

However, O’Kane said it was now possible to produce more fine grained assessments for each area [sea level rises vary according to local conditions, such as currents]  because there was more information and greater computational power available.

Buyer be very beware

Hartcher’s announcement on the  section 149 certificate provisions is also confusing.  By referring to removal of the  compulsory notice of potential flooding the minister appears to heading towards a situation that exposes buyers to hazard risks that they probably think they should be warned about.

It is not clear if  this a suggestion, an option or a directive. The Fifth Estate contacted the minister’s office to seek clarification on all these issues and intentions, but did not hear back.

The Sydney Coastal Councils Group said the new policy added to confusion about how to adapt to climate change.

”The last thing we need is individual councils having different management policies up and down the coast,” the council told The Sydney Morning Herald.

”The press release is rather confusing, and we are unsure what it’s supposed to mean.”

Wyong Shire Council’s manager environment and natural resources Greg White says he and his fellow professionals are struggling to work out how to absorb the changes.

“The only categorical thing is that the state government policy on sea level benchmarks no longer apply,” he says.

Councils have been working hard to set their hazard lines, whether it was to incorporate risks flooding or coastal slope instability.

“There will be where that line appears now and where that line moves to in 2050 then in 2010.”

Development control plans or a coastal DCP is then linked to the local environment plan.

“That policy has now been removed which indicates that councils now don’t have anything [in terms of planning] vaguely supported by the government at this stage.”

Pressures

In White’s view, pressure from property owners has convinced the state government to back away from the “tough decisions” on managed retreat decided by the former government.

It was understandable, he said, but the “the only sustainable decision is planned retreat because councils cannot afford to build protection for ever and a day”.

White said he has spoken to the minister but says, “they’re playing politics and they’re trying to win votes – that’s pretty basic.

“They say councils are taking a view of sea level rises in 2100 and it’s too far out and it’s not rational.”

It was true that “the further out you go the more uncertainty you have,” White said, “but a lot depends on what planning and management controls councils invoke within those zones”.

“What we did at Wyong was create certainty.”

This did not outlaw all development, he says.

When the benchmarks on sea level rises were released Wyong had already sourced a range of information and advice to conduct its own reports.

“It was good that the previous state government came out with the benchmarks because what we were heading to was something close to those. And we thought, good, we can work to that. “The council had spent ’hundreds of thousands of dollars’ on the reports,” White said.

The concept was to be fair to the community.

“We will let them do as much as we can but we still need to manage the risk, or they could get into trouble. Not only could they die or lose their house, but we could be sued. That’s a path we don’t want to go down.

“Between the 2050 to 2100 line you can do most things, but you don’t intensify development in that area.

“You could replace a dwelling but you would not build a major hospital. You wouldn’t put major infrastructure there and you wouldn’t turn a dual occupancy into high rise.

“Everyone is a bit shellshocked at this stage and it’s probably the one thing people didn’t predict that they would do because it would put things into chaos.”

White says the impact of the state government directives is to contradict the Local Government Act.

“It’s going in the face of what the Local Government Act is – that we have to foster sustainable development.”

The Act would need to be changed. And it’s likely it will be changed, with no effective opposition, in the next session of Parliament before Christmas, White speculated.

Consequences

White is not at all sure the consequences are understood.

“If we permit people to do whatever they want, and if that’s the intention…to let people do whatever they want and it washes away, well the liability falls back on the councillors.

“If it could be proved that the risks were not properly managed legally the councillors could be liable for future damage, even 20 or 30 years out, White says.

“Some of the councillors don’t believe this.”

Meanwhile councils are scrabbling for legal advice.

A spokeswoman from the Insurance Council of Australia told The Fifth Estate that “The Insurance Council of Australia its own National Flood Information Database”.

“There is no product available in the world that provides cover for loss of land through gradual sea level rise. That is a matter for planning, zoning and development authorities to address.

“Almost no insurers cover actions of the sea in residential policies, and none cover anticipated gradual change in sea levels.”

Liability

“Liability for planning decisions is closely linked to compliance with planning laws and known information at the time of planning decisions. It is a matter for local planning authorities to carefully consider their potential liabilities when making these decisions.”

The core issue here is about the “known information”. So is a scientific document, which the NSW chief scientist has reviewed and declared “adequate” “known information” or can it become “unknown” on government orders or a change to the legislation?

Sandbags all the way to New Zealand

The new rules on sea barriers are expected to make it easier for people to protect their property by measures such as sandbagging.

White says, “You can always build a single structure but you need a DA [development approval] and you need a council who would consider whether it will destroy the beach”.

“If you lose the beach that’s a loss of public property.”

If owners of properties either side of a retaining wall suffer damages because the waves crash on either side of the wall they could sue for damages, he says.

“You could build to 1.5 metres but we get waves 5-6 metre high.

“Even if they say you can build to six metres it would be absolutely destroyed in the first storm and you’d have sandbags from here to New Zealand.”

Back to work and a new scientific assessment of sea level rises
Right now councils face reworking their sea level rise forecasts with more accurate local levels, but this could take a few years.

White says that when the 2014 International Panel on Climate Change report is published “we will have to rejig everything again”.

“I’ve got a pretty good idea what will happen: those sea level rise benchmarks will go up rather than down.”