Legal implications of failing to

Transcription

1 Legal implications of failing to plan for sea level rise Gavin Leydon, Partner 30 April 2010

2 Outline Relevance to local l government & developers assessment & policy Developments in case law Climate change impacts relevant factor in SA & interstate Potential legal liability Strategic response & need for appropriate DP policy Approach to development assessment

3 Impacts of climate change Those most likely to affect councils & coastal communities: sea level rise coastal erosion storm surge flooding extreme weather events

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14 Councils & others must plan for & manage coastal impacts of climate change Prevention inappropriate occupation or development of land threatened by the sea Protection existing development issues of legal liability & responsibly to protect existing development 34 SA councils with coastal boundaries

15 Strategies to address climate change Mitigation reduce greenhouse gas emissions Adaptation prepare for inevitable change & minimise impact Land use planning important t role in both strategies t Sea level rise already a factor considered in development assessment process in a number of jurisdictions Development proposals for coastal land divisions coastal Development proposals for coastal land divisions, coastal development & infrastructure

16 Coastal development - SA Northcape Properties v DC of Yorke Peninsula Sea level rise inevitable Issue for development of low lying coastal areas ERD & Supreme Court accepted evidence on future shoreline retreat due to sea level rise 80 Lot land division refused Northern outskirts of Marion Bay

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18 Holiday Settlement Zone adjacent Coastal & Conservation Zones Development Plan provisions coastal reserves & development adjacent coast DP sought preservation of native vegetation allowance for coastal erosion provision i of both an erosion buffer & coastal reserve Erosion buffer width to protect against sea level rise of 1m over 100 years Extent of inland recession of the coast 35m 40m over 100 years

19 20m erosion buffer would move inland over next 10 years Coastal reserve would become erosion buffer DP called for both Appeal dismissed insufficient regard to ecological sensitivity of area

20 Coastal development Vic Gippsland Costal Board v South Gippsland Shire Council (July 2008 VCAT) Sea level rise & risk of coastal inundation relevant matters Applications for 6 planning permits for coastal dwellings on 2 4 ha lots Historical sub-division in Farming Zone, old Crown township area Low-lying land, prone to flooding & at risk from sea level rise Council approved against recommendation

21 No specific reference to climate change in legislation l or policy Planning authority must consider any significant effects which environment may have on land use or development Preliminary CSIRO studies indicated sea level rise & coastal inundation in area Real risk of dynamic changes in coastal conditions including storm events & rising sea levels Applying a precautionary approach risks made land unsuitable for residential development Approval of Council overturned by VCAT

22 Myers v South Gippsland Shire Council (2008 & 2009 VCAT) Subdivision of coastal land of 1600m² in a Township Zone Coastal vulnerability assessment required Assessment considered sea level rise, storm tide & surges, coastal processes & topography Precautionary approach adopted Without t mitigation by 2100 no dune, foreshore access, no road & inundation Approval would be poor planning & unnecessarily burden future generations Acceptance of risk by owners is not a responsible way forward

23 Coastal development - NSW Minister for Planning v Walker (2008 NSWCA) Residential sub-division & retirement village at Sandon Point on NSW central coast Equivalent of major project declaration & approval Failure to consider long term environmental risk factors including climate change a ground for challenge ESD principles likely an element of public interest for ESD principles likely an element of public interest for planning decisions in coastal areas

24 Policy response Federal & State Establishment of National Sea Change Taskforce in 2004 National body representing interests of coastal councils 68 member councils July 2008 Taskforce report: Planning for Climate Change: Leading Practice Principles & Models for Sea Change Communities in Coastal Australia Report concluded few local schemes made specific provision for considering climate change risk, particularly sea level rise

25 Federal Parliamentary Coastal Inquiry Report Managing our Coastal Zone in a Changing Climate: The Time to Act is Now released 26 October recommendations including the following Adoption of a nationally consistent sea level rise planning benchmark Establishment of a Coastal Zone Ministerial Council

26 An Australia Law Reform Commission inquiry into:- liability issues facing public authorities liability issues for land owners acting to protect their properties legal l issues associated with existing development insurance issues & broader indemnification of local government

27 State Governments Range of policy measures for sea level rise & impacts on coastal regions State polices include stated sea level rise benchmarks for strategic & land use planning Some inconsistencies & therefore varied climate change impacts

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29 South Australia 1991 sea level rise policy still in effect but currently under review Allowance of 0.3m for sea level rise to 2050 (previously 0.15m since 1980 s) If development can t be reasonably protected against sea level rise greater than 0.3m; set back from coast to protect against 1m rise by 2100 Policy explained in SA Coast Protection Board publication Coastline No 26 January 1992 Coastal erosion, flooding & sea level rise standards & protection ti policy

30 1994 Ministerial PAR regional coastal areas policy amendment Further information on coastal management Department for Environment & Heritage Coastal Planning Information Package guide to referrals to Coast Protection Board & strategy to support Coast Protection Board policy BDP reviewed Ministerial policy & released Version 5 February 2010 Coastal areas hazard risk minimisation erosion buffers

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33 Implications Sea level rise to have significant impacts on existing coastal development & infrastructure Policy shift to incorporate climate change considerations in future planning & assessment of coastal development Potentially negligent if ignored or inadequately addressed

34 Liability Climate change risk widely known Duty of care Council policies & programmes must respond to climate change Potential liability for development approvals in coastal, flood & at risk areas Adequacy of buildings in extreme weather events

35 Responsibility for erosion/landslides Developers to incorporate appropriate adaptation measures in their designs Potential for contributory negligence Claim if approval negligently g issued

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39 Development Plans Should reflect current knowledge regarding risk Impact & appropriateness of development in certain areas Identify areas of impact & risk Review polices Expert advice for future polices Consider climate change effects when making decisions & Consider climate change effects when making decisions & exercising powers

40 Summary Plan for sea level rise Ensure new development is located & designed appropriately to deal with coastal hazards Identify areas at risk & appropriately manage Avoid development in identified hazard areas Develop & refine policy to reflect and deal with anticipated changes arising i from climate change

41 Development assessment Establish context Assess vulnerability evaluate risks response strategy i.e. avoid, retreat, accommodate, protect precautionary approach to planning & management decision making.

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