27 March 2012 – Lawyers say a threat by a NSW developer to take a local council to court because it is warning property owners of potential flooding from sea level rises has little chance of success.

The threat followed a report warning that new homes are being approved in coastal zones under local government planning controls that are not updated to account for climate change impacts.

In a recent newspaper article a developer has accused Lake Macquarie Council on the NSW Central Coast, of ”falling for this unjustified, worldwide idiocy about sea level rises”.

However, Prue Burns, partner with the law firm Maddocks, told The Fifth Estate that anyone taking legal action against local councils because of council notices of flooding risk, the rejection of development applications and the development of environmental planning instruments, would have significant hurdles to jump over.  “They would need to look closely at section 733 of the Local Government Act,” Ms Burns said.

Prue Burns

“That section provides that local government has a number of exemptions from liability in respect to council actions taken in good faith.

“If a council has taken action relating to the likelihood of the land being flooded or being affected by a coastline hazard in good faith then an exemption from liability may apply.”

She said many local government authorities were developing similar policies to Lake Macquarie Council in the context of the Coastal Protection Act 1979 and the State government’s policy on adaptation to sea level rise which supported the making of these sorts of plans.

“One of the purposes is to ensure that informed land use planning and development decision making can be made.”

There had been a suggestion in a recent newspaper article of a possible state government moratorium on development of these sorts of policies, but the policies and legislation have not changed to date, she said.

In the recent report, Planning for Climate Change Adaptation in Coastal Australia:State of Practice, was commissioned by the National Sea Change Task Force.  Launched  at the 2012 Australian Coastal Council’s conference in Hobart on 7 March it found that less than a fifth of local government areas surveyed had changed their planning controls to adapt to climate change.

New homes worth hundreds of millions of dollars were being approved in Australia’s coastal zones, it said.

“Of the estimated 711,000 homes located in the coastal zone, up to 35 per cent are at risk of inundation under a sea level rise scenario of 1.1 metres,” says the report’s lead author Associate Professor Nicole Gurran, the acting head of Urban and Regional Planning at the University of Sydney.

However, more than half of respondents said they had started reviews of their planning schemes, while the remainder intended to do so in the near future.

At particular risk according to the report are some of the nation’s fastest growing population areas, including Victoria’s Bass Coast, South East Queensland, Townsville and Cairns, Wollongong, Lake Macquarie, and Newcastle in NSW and Capel and Busselton in Western Australia.

The pressures on these areas – with annual growth rates more than double the national rate of 1.7 per cent – are compounded by demand for second homes and the growth of tourism-related development.

“Local councils face a real dilemma,” Associate Professor Gurran said in a statement: “If they refuse a development on the basis of potential climate change impacts they may be challenged in court. But if they approve developments they may be liable for future damages.”

She added: “Council staff also reported local community pushback and scepticism towards climate change and potential impacts for coastal regions. In some cases, landholders and developers have become more vocal in opposing development restrictions associated with climate risk management.

“Council representatives also reported existing property owners expressing concerns about declining property values if particular properties are identified as being at risk, leading in some cases to maps showing at-risk properties not being made publicly available.”

“Some council representatives also spoke of an influx of some of the country’s wealthiest people into coastal areas with an attitude that, with ‘mates in high places’, they don’t need to abide by local council rulings.

“To further complicate matters, some council representatives were concerned about the quality and independence of risk assessments conducted by private sector consultants, and the ability of unqualified council staff to make decision based on those assessments.”

The researchers conducted round table discussions and surveys of 43 non-metropolitan coastal councils around Australia.

Some of the key findings include:

  • Less than a fifth of local government areas surveyed had changed their planning controls to reflect climate change adaptation considerations.
  • More than half of respondents said they had commenced reviews of their planning schemes and almost all intended to do so in the near future.
  • More than half of the survey respondents reported that their council had undertaken a study or formal climate change risk analysis.

Nearly a third of respondents have prepared a climate change adaptation strategy, with remaining survey respondents in the process of preparing a strategy or planning to commence one in the near future.

Although only four local governments reported having already changed their local planning controls in response to climate change, nearly 90 per cent had commenced action to change planning controls, or intended to make changes in the near future.

The majority of survey respondents indicate that sea level rise is not addressed or is poorly addressed in their controls.

Many items of significant community infrastructure – including fire stations, hospitals, water treatment plans, and emergency services – are situated within 200 metres of the shore.

Managing climate risk is already a budgetary pressure on local governments, with increased costs associated with obtaining legal opinions and, in some cases, defending planning decisions; meeting insurance premiums; and, coastal protection works. Other costs relate to staff education and time, as well as consultant studies and expert advice.

For a copy of the report contact: katie.szittner@sydney.edu.au

According to recent newspaper reports cracks are appearing in the state’s response to rising sea levels, with one council facing potential legal action from a developer and other residents worried about planning controls and insurance risks.

An  article in The Sydney Morning Herald says Lake Macquarie Council recently updated its recommendations for about 10,000 people living up to three metres above the average sea level.

All their properties could be exposed to inundation and increased flood risks by the end of the century, according to guidelines developed by the CSIRO.

But a property developer, Jeff McCloy, said he was contemplating leading a class action suit against the council, which he said was ”falling for this unjustified, worldwide idiocy about sea level rises”.

Mr McCloy recently arranged for climate change sceptics Ian Plimer, Bob Carter and David Archibald to address residents and councillors, and said the presentation seemed to convince many people there was nothing to worry about.

It comes as the NSW government reassesses its plans regarding sea level rises, including the possibility of a moratorium on sea level-related planning restrictions until more studies are done.

Mr McCloy is seeking to gain approval for a subdivision of 24 homes that is likely to be affected by the Lake Macquarie planning guidelines.