– By Stafford Hopewell, partner, Gadens Lawyers, Brisbane –

FAVOURITES – 31 January 2010 – Climate change is starting to emerge as a significant issue in planning and environment decision-making. Courts and tribunals are increasingly being required to take into account climate change issues and there is an emerging set of cases across Australia in which climate change issues are determining development outcomes.

Development refused due to climate change

The Victorian Civil and Administrative Tribunal, which determines planning appeals in Victoria has recently refused a development application due to unacceptable impacts from predicted climate change.

In Myers v South Gippsland SC (No 2) a development application to subdivide a lot into two lots in an existing town area was refused due to climate change impacts. The subject land had an existing two-storey dwelling on it and fronted a road which separated it from the coastline.

A coastal hazard vulnerability assessment was required by the Tribunal which considered issues including sea level rise, storm tide and surge, coastal processes and local topography and geology. The assessment found that rising sea level would ultimately subsume the road (and access to the land) within 70 years and the subject land within 100 years.

The Tribunal held that the key issue as to the appropriateness of the subdivision for a second lot (and dwelling) was balancing of the finding the coastal vulnerability assessment and policy framework with the expectation for development (the land being included in the Township Zone).

In this case the Tribunal noted the relevant planning policies required decision makers to consider the needs for long term planning for the future consequences of climate change, rising sea levels and storm surges. Adopting a precautionary approach the Tribunal held that granting a development approval in the circumstances would result in a poor planning outcome and unnecessarily burden future generations. The development application was accordingly rejected by the Tribunal.

Development subject to conditions to mitigate climate change

In another recent decision in Seifert v Coloc-Otway SC, the Tribunal approved a subdivision that had been refused by the council in the first instance. In Seifert the Tribunal rejected arguments that the development should be refused but imposed conditions to mitigate the impact of climate change.

In considering the impact of climate change the Tribunal applied a two stage test of first, putting to one side flooding and coastal engineering issues, whether there is a reasonable planning case for the proposed subdivision; and second, if yes, whether there were any fatal flooding and/or coastal management issues.

The Tribunal found that putting aside the flooding and coastal engineering problems, there was a clear case in favour of approving the development which was consistent with the planning framework and existing subdivision pattern in the area.

Having regard to the flooding and coastal issues, the Tribunal found that one of the proposed lots would not be affected and was therefore not subject to any requirements. In relation to the other proposed lot, the Tribunal required several conditions to be imposed to mitigate potential future impacts. These included changes to the lot area, a building setback and building exclusion zone and the requirement for more detailed plans and designs to demonstrate the adequate management of flooding issues prior to any development on the lot.

The Tribunal further noted that it “should not approve coastal developments that are likely to be unduly threatened by future flooding and/or coastal inundation, creating a mess to be dealt with by future generations.”

An emerging trend?

These recent Victorian decisions follow on from a series of earlier Tribunal decisions regarding climate change issues. In Gippsland Coastal Board v South Gippsland SC & Ors (No 2), the Tribunal refused a development application due to concerns about rising sea levels and storm surge. In that case the Tribunal held that:

  • sea level rise was a valid issue
  • a lack of detailed knowledge about the extent of future impacts did not justify a “business as usual” approach and it was not sufficient to base future decisions on past practices; and
  • applying the precautionary principle, the potential risks were sufficient to justify refusal of the proposed development.

However, this decision can be contrasted to a later decision of the Tribunal in Santos v East Gippsland SC in which case the Tribunal held that potential climate change impacts were sufficiently delayed in time to not be relevant.
In South Australia, the Supreme Court in Northcape Properties Pty Ltd v District Council of Yorke Peninsula upheld a decision of the Environment, Resources and Development Court that changes in flood patterns and sea levels by global warming would erode a buffer zone and prevent access to the coast making coastal subdivision unacceptable.

The Queensland approach
Climate change issues have yet to receive significant attention from the Courts in Queensland. However, the Queensland Court of Appeal in Charles & Howard Pty Ltd v Redland Shire Council has held that the Planning and Environment Court was correct to have regard to climate change impacts in considering an appeal about an application to fill land.

Having regard to the emerging case law on climate change, it is expected that climate change issues will become increasingly common and important considerations in development assessment and appeals. The significance and relevance of climate change issues will however be largely dependent on the detail of the relevant planning instruments and policies that are applicable.

Therefore, while the Sustainable Planning Act 2009 makes specific reference to climate change, the relevance of climate change issues to individual sites and proposals will be primarily determined by the relevant planning instruments such as planning schemes, regional plans and coastal management plans.

The next generation of State, regional and local plans and policies prepared under SPA will be central to how climate change issues impact on future planning and development in Queensland.