6 February 2014 — Legal advice to local governments obtained by The Fifth Estate says local councils would be prudent to continue to use the former Labor government’s sea level rise planning benchmarks until the O’Farrell government delivers on a promised approach to sea level rise that is more responsive to local conditions.
The NSW Government has announced a rejection of the sea level rise planning benchmarks for 2050 and 2100, which were adopted by the former Labor government and based on Intergovernmental Panel on Climate Change data, and last week released a draft circular proposing to separate immediate climate threats from long term ones on Section 149 planning certificates.
The changes mean that councils would need to develop a local coastal planning policy backed up with “robust evidence” before being able to place restrictions on section 149 (2) certificates.
“We want to ensure property owners and buyers are given clear, accurate and up-to-date information on coastal hazards,” Planning Minister Brad Hazzard said last week.
“It is sensible to clearly separate current and future hazards.
“Councils need to make that decision based on sufficiently accurate and complete information that is as reliable as possible and is not broad brush, but which takes into account relevant information about local conditions.”
However, legal advice to local councils has stated that to protect from future liability based on poor planning decisions relating to climate change, the former government’s sea level rise planning benchmarks should be used in absence of data supporting lower benchmarks.
Cheryl Lappin, senior strategic planner for Shoalharbour City Council, recently presented a paper at the 2013 Coastal Conference, which said that the “legal liability arising from the use of projections that vary from the previous state-wide benchmarks has been of concern to councils”.
She told The Fifth Estate that councils were “stuck between a rock and a hard place” and that they would be in limbo until guidance was provided to councils as to what was expected in local hazard studies, something the government had been promising now for two years.
Ms Lappin also questioned who would pay for revised hazard studies if the previous benchmarks were not to be used. A recent article in The Australian also flagged the issue, saying that the new coastal policy could be “a goldmine for consultants”, if local councils were made to do engineering and environmental planning on a beach-by-beach basis. It warned that ratepayers could be the ultimate bearers of cost.
Mark Baker-Jones, special counsel, environment and planning for legal firm DLA Piper told The Fifth Estate that councils should be cautious about moving away from the benchmarks set out in the NSW Sea Level Rise Policy Statement, which was adopted by Labor and rejected by the current government, until further guidance was given by the Office of Environment and Heritage.
“Councils really need to know what new approach for sea level rise planning is to be adopted,” Mr Baker-Jones said. “The OEH has said that this information will become available to local councils ‘in due course’.
“In the absence of compelling data supporting a benchmark significantly less than those set out in the Policy Statement, in abandoning the benchmarks councils may limit the statutory defences otherwise available to them. What this means is that councils may incur an increased liability risk in any liability claim that raises an issue with the appropriateness of the selected benchmark.”
Asked if councils who were unable to afford detailed hazard studies would be more susceptible to legal challenges, Mr Baker-Jones said that if councils could obtain their own independent advice to support the selection of a benchmark different to that in the policy statement adopted by Labor, they could rely upon that advice and adopt the benchmark set out in it.
However, this benchmark would then need to be reconsidered when the OEH published its promised recommendations, he said.
“Councils that are unable to resource their own independent advice would be advised to continue to apply the previous benchmarks, thus potentially obtaining the benefit of some protection from liability under the ‘good faith’ provisions of the Local Government Act 1993 and the Civil Liability Act 2002.”
Sydney Coastal Councils call for need to consider future hazards
Geoff Withycombe, Sydney Coastal Councils Group’s executive officer, regional coastal environment officer, said his group welcomed the minister’s focus on “improving the necessary partnership with councils to address existing coastal erosion and flooding threats, many of which have been known and unresolved for more than 30 years”.
However, he said councils needed more assistance to better assess local conditions, on a “beach by beach data”, as noted by the minister.
The government’s removal of state coastal planning benchmarks in late 2012 resulted in “confusion, frustration and ad-hoc approaches to these critical local and indeed state issues”, he said.
“Future projected sea level rise hazards may indeed not be relevant for all types of development.
“But clearly if local and state government are considering new subdivisions, major land use changes, intensifying development or building and retrofitting critical infrastructure (like hospitals, major transport routes, and utilities) these future hazards must be considered.
“The last thing NSW wants is to build any more liabilities for the future.
“It also needs to be highlighted that the community and prospective property purchases have the right to know of potential future risks and the government has a clear responsibility to inform them.”