Mon 18/08/2008 Zoe Lyon, Lawyers Weekly
THE RISKS for coastal properties arising from climate change are firmly in the spotlight, following a recent decision by the Victorian Civil and Administrative Tribunal (VCAT).
The case involved a successful appeal by the Gippsland Coastal Board — which was represented by DLA Phillips Fox partner Mark Bartley — to the South Gippsland Shire Council’s decision to grant consents for the development of six houses on coastal farmland in Torra, Victoria.
Applying the precautionary principle, the VCAT’s deputy president, Helen Gibson, overturned the consents, holding that the risk of more intense storms and sea level rises arising from climate change rendered the area unsuitable for residential development.
“We consider that increases in the severity of storm events coupled with rising sea levels create a reasonably foreseeable risk of inundation of the subject land and the proposed dwellings, which is unacceptable,” Gibson concluded.
While the case is not binding, the VCAT has marked it a “red dot decision”, meaning it is considered to be a decision of particular note and wider community interest.
Brendan Sydes, a principal solicitor at the Environmental Defenders Office, Victoria, believes the case is significant simply because there are so few decisions dealing with climate change-related risks.
“It will hopefully set the groundwork for future decisions, because this issue hasn’t really been broached by the VCAT before,” he said.
“I think that this is a belated but early indicator of the sort of decision-making that we can expect from courts and tribunals and it is also likely to at least be referred to [in other jurisdictions].”
According to Sydes, the VCAT has taken a unique approach to dealing with the uncertainty surrounding climate change-related risks.
“In other forums, the debate about sea level rises gets bogged down in the debate about whether or not climate change is happening, how much the sea level is going rise, and such things,” he said.
“Whereas here the VCAT has said ‘We accept that this is happening, and though we can’t be precise about how much the rise will be, we’ll apply a precautionary approach.
So in the absence of full scientific certainty it would be bad policy — contrary to fair and orderly planning — to allow development in these circumstances’,” Sydes said.
In determining that climate change considerations should be taken into account, the VCAT relied on the broad working of section 60(1)(e) of the Planning and Environment Act 1987 (Vic). This section requires planning authorities, when considering development applications, to take into account: “any significant effects … which the responsible authority considers the environment may have on the use or development.”
While Sydes believes the VCAT was justified in using this broad provision, he says the act should be amended to specifically require climate change considerations to be taken into account in planning decisions.
“I think it would be much preferable if we had an act that was up to the task of dealing with these issues,” Sydes said.
“We need fundamental reform in the Planning and Environment Act here in Victoria … to make it very clear that climate change, and all the implications of climate change — not just sea level rises but biodiversity loss, transport issues and a whole range of other issues — need to be taken into account.”