The Victorian Civil and Administrative Tribunal (Tribunal) has recently considered the circumstances in which a Coastal Hazard Assessment, to assess the impact of climate change on land proposed for development, will be required. The recent Tribunal decisions add clarity and guidance to recent changes in the planning policy framework designed to address coastal climate change impacts.

Climate Change Planning Policies

The policies that now require consideration of the impacts of climate change on coastal areas which the Tribunal had regard to, are as follows:

  • The Victorian Coastal Strategy 2008 (which is incorporated into the Victoria Planning Provisions) requires planning for a sea level rise of not less than 0.8 metres by 2100 and to allow for the combined effects of tide, storm surges, coastal processes and local conditions, such as topography and geology when assessing risks and impacts associated with climate change. It also seeks to ensure that new development is located and designed so that it can be appropriately protected from climate change risks and impacts, and coastal hazards such as inundation by storm tides or combined storm tides and stormwater flows (i.e. both river and coastal inundation).
  • Clause 15.08: Coastal Areas of the State Planning Policy Framework, provides that planning to manage coastal hazards and the coastal impacts of climate change should apply the precautionary principle, ensure new development is located and designed to take account of the impacts of climate change on coastal hazards, avoid development in identified coastal hazard areas and ensure coastal hazards are identified and appropriately managed to ensure future development is not at risk.
  • Ministerial Direction No.13: Managing Coastal Hazards and the Coastal Impacts of Climate Change which applies to any planning scheme amendment that provides for the re-zoning of non-urban land for urban use and development of all land abutting the coastline or a coastal reserve and land if it is less than 5 metres AHD elevation within one kilometre of the coastline.
  • General Practice Note, December 2008, which provides that planning for impacts of climate change on coastal hazards also needs to be considered for development of individual parcels of land within existing zoning and overlay provisions within planning schemes.

Myers v South Gippsland Shire Council

The case of Myers v South Gippsland Shire Council [2009] VCAT 1022 (Myers Case) involved an application to subdivide land of around 1600m2 zoned Township Zone, which generally encourages residential development, into two lots. The site was also included in Schedule 3 to the Environmental Significance Overlay, Coastal Areas. The site was historically held in two titles, though with a different configuration. The application was brought before the Tribunal by an objector who raised the issue that the potential impact of sea level rise due to climate change and/or localised flooding had not been properly considered.

The Tribunal, applying the precautionary principle, found that it was not possible to determine whether the land was suitable for subdivision without a proper assessment of the impact of climate change being carried out. The Tribunal held that, prior to a decision being made, the applicant must undertake a Coastal Hazard Assessment and if the applicant did not intend to proceed with the preparation of such an assessment, the subdivision application would be refused. The Tribunal stipulated that the Coastal Hazard Assessment must consider factors including sea level rise, storm tide and surge, coastal processes, and local topography and geology and that the assessment must be undertaken by a suitably qualified coastal engineer or coastal processes specialist.

Ronchi v Wellington Shire Council

The case of Ronchi & Anor v Wellington SC [2009] VCAT 1206 concerned the development of two double storey dwellings on land zoned Township Zone. The subject land was not in an overlay but was close to a creek in the low lying coastal settlement of Seaspray. The Council determined to grant a permit and issued a Notice of Decision prior to the amendment to clause 15.08. While the objectors were concerned with character issues, the Council indicated at the hearing that floor levels may need to be raised, potentially by 900mm, due to the provisions of clause 15.08, triggering an assessment under a design and development overlay (DDO) and giving rise to implications in terms of redesign, character and amenity. The Council also questioned the equity in applying a climate change assessment to a development application because a single dwelling on the subject land does not require a planning permit (if the DDO is met). The permit applicants’ position was that they accepted the risks and preferred not to elevate the units. A condition requiring the owner of the subject land to enter into a section 173 agreement was proposed requiring the owner to acknowledge the elevated risk of flood damage and accept responsibility for any costs associated with such damage.

The Tribunal, while refusing to grant a permit on character grounds, found that an assessment of the site’s vulnerability to the impacts of river and coastal hazards would be required in a future development application. That assessment might result in redesign with the potential for consequential impacts in terms of off-site amenity impacts and character outcomes and may raise more fundamental questions about the development capacity of the land. The Tribunal also noted that an acceptance by the owners of the potential risk is not a responsible way forward and that the lack of control for detached dwellings does not mean the issue can be ignored. Rather, it should be addressed by ensuring such control is obtained through a scheme amendment.

Comment

The Myers Case and the Ronchi Case build on the Tribunal’s findings in the case of Gippsland Coastal Board v South Gippsland SC (No2) [2008] VCAT 1545, handed down prior to the above mentioned policies coming into effect, in which Deputy President Gibson found that sea level rise and the risk of coastal inundation were relevant matters to consider in appropriate circumstances. Although no expert evidence, such as a Coastal Hazard Assessment, was before the Tribunal for consideration, the Tribunal accepted the general consensus that some level of climate change will result in extreme weather conditions beyond the historical record that planners and others rely on in assessing future potential impact. Applying the precautionary principle, the Tribunal concluded that increases in the severity of storm events coupled with rising sea levels created a reasonably foreseeable risk of inundation of the subject land and the proposed dwellings, which was unacceptable.

Other States have also been required to consider the impacts of climate change, and in particular, sea level rise, for new coastal development projects. Please see our legal update for further information on these cases.