Peter A Clarke

If VCAT wanted to get a nice splash of coverage as one of the “good guys” on climate change it got it care of Gippsland Coastal Board v South Gippsland SC. One of the reasons for overturning the council’s permit is the possibility of rising sea levels.  So now the law courts buy into the scientific debates.  The evidence is a CSIRO report.  Intellectual rigor is not the by word for this decision.  T

SEA LEVEL RISE

32. In the grounds of objection raised by the Gippsland Coastal Board, Mr Bartley identified two grounds of environmental concern in respect to the proposed dwelling developments:
    • They pose an unnecessary and unacceptable risk to the coastal environment; and
    • They are inappropriate in light of climate change studies undertaken by the CSIRO on behalf of the Board.
33. His submissions go on to elaborate on these grounds, relying on studies undertaken by the CSIRO that have attempted to quantify the level of sea level rise that may occur under increased wind surges and more generally as a result from sea level rises in combination with storm surges.[10] We note that these studies are of a preliminary nature as to the effects of climate change.[11] Nevertheless, the studies indicate that whatever the degree of impact, greatest wind and storm surge effects will be felt in the northern portion of Corner Inlet, including the coastline of the Grip Road area south of Toora.

Is sea level rise a valid consideration?

34. The first question we have asked ourselves is how relevant is the matter of sea level rise and risk of coastal inundation?
35. The specific consideration of sea level rises, coastal inundation and the effects of climate change are not set out within the Victorian Planning Provisions. This is to be compared to the situation in South Australia as set out in Northcape Properties Pty Ltd v District Council of Yorke Peninsula[12]. In the Northcape case, development planning policy specifically calls for consideration of sea level rises in the first 100 years of a development’s life.[13] The Supreme Court of South Australia upheld the relevant planning authority’s decision to refuse development permits on the grounds of failing to account for recession of the coastline under projected rising sea levels. This decision had the benefit of complex scientific evidence as to the effects sea level rise.
36. In this matter, we have neither the benefit of specific planning provisions or policy relating to coastal recession or sea level rise. However, section 60(1)(e) of the Planning and Environment Act 1987 sets out that:

60(1) Before deciding on an application, the responsible authority must consider—

….

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development. (Tribunal’s emphasis)

37. While sea level rise may not result in such dramatic effects as Mr Bartley’s submitted photos of North American coastal recession, the CSIRO studies are sufficient to demonstrate that rising sea levels are likely and will have an influence on the future shape of the Victorian coastline. It is our view that the requirement of section 60(1)(e) is sufficiently broad to include the influence that climate change and coastal processes may have on the proposed developments.

It is a very long bow to point to section 60(1)(e) and a reference to the environment as being a basis for grabbing a generalised report and extrapolating its results.  

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38.Given that it is legitimate to consider the issue, what then arises is the question as to what extent may the sea level rise and will it have the potential to impact on the developments to such a degree to warrant refusal? It is these matters that we next consider.

What is the extent of sea level rise?

39. We do not have the benefit of expert evidence other than the CSIRO reports. These reports set out a number of factors which may influence rises in storm surges, erosion of the coastline and inundation of the subject land. The August 2006 study reports that:
    • Climate change forecasts indicate a possible decrease in the number of storm events, but an increase in their intensity and hence rainfall and other extreme weather conditions. There is an expectation that storm events will be more severe.
    • Storm surge levels may be 0.3m higher under climate change conditions within the next 100 years.
    • There is an acknowledged level of uncertainty as to what the conditions will be like and the time period over which climate shifts may occur .  

40. It is not our intention to adopt these findings. They have not been subject to any rigorous examination in this proceeding. Nevertheless, we have had regard to the broader picture that there is a 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 impacts. It is, in our view, no longer sufficient to rely only on what has gone before to assess what may happen again in the context of coastal processes, sea levels or for that matter inundation from coastal or inland storm events.

 Is the potential risk of sea level rise acceptable?

41. Given what we have set out above, how then can we address the potential risk issues contained within the Board’s grounds of objection? Mr Bartley urges the Tribunal to take a precautionary approach. We take this to be a reference to the precautionary principle[14]. The precautionary principle requires, amongst other matters, a gauging of the consequences and extent of intergenerational liability arising from a development or proposal and if found to be warranted, appropriate courses of action to be adopted to manage severe or irreversible harm.
42. We accept that there is growing evidence of sea level rises and risks of coastal inundation. While we acknowledge that there is uncertainty as to the magnitude of the sea level rise, it is evident that the consequences of such rises in level will be complex due to the dynamic nature of the coastal environment. Put plainly, rising sea levels are to be expected. The range of impacts may well be beyond the predictive capability of current assessment techniques. In the face of such evidence, a course of action is warranted to prevent irreversible or severe harm.

It is just unsatisfatory logic and bad law to assert that “growing evidence” of sea level rises but without any clear evidence of the  magnitude of

43. Mr Bartley asserts that with rising mean sea levels and storm surges the sea wall along this portion of the coast will be under attack. If it fails, low lying areas, such as the subject land, will be at greater risk of inundation. Alternatively, it is the Board’s position that with increasing risk there will be pressure to increase the degree of protection afforded by the sea wall. In either case, there is a longer term risk of intergenerational liability that can and should be avoided in the absence of no imperative or higher order need for the development that overrides these potential liabilities.
44. Having inspected the subject land and a portion of the adjoining coast, it is apparent to us that the sea wall amounts to no more than what was described by Mr Bartley, an earthen wall. It is our view, informed by the site inspection and submissions of other parties, that this ‘sea wall’ is likely to have been a part of overall works to improve the drainage condition of the subject land, being constructed along with drains to move and control floodwater, and win coastal flood plain for farming purposes.
45. While much is made of the historical nature of the structure by Messrs Dubignon and Whelan, this gives us no comfort as to its capacity to protect the land from future sea level conditions and storm events. Its nature and historical purpose heighten our concern that a reliance on this structure for future protection from coastal inundation goes beyond its intended purpose. We consider that with increases in the severity of storms events coupled with rising sea levels, there exists a real risk of dynamic changes in coastal conditions and the failure of this supposed ‘sea wall’. What follows from this, in our view, is that there is a reasonably foreseeable risk of inundation to the subject land and the proposed dwellings. In the face of no urgent or overriding need for the dwellings to be located on this land, we cannot say that such a longer term and reasonably foreseeable risk is acceptable.

Conclusion about sea level rise

46. We conclude that sea level rise and risk of coastal inundation are relevant matters to consider in appropriate circumstances. We accept 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.
47. The relevance of climate change to the planning decision making process is still in an evolutionary phase. Each case concerning the possible impacts of climate change will turn on its own facts and circumstances.
48. In the present case, we have applied the precautionary principle. 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. This risk strengthens our conclusion that this land and land in the Grip Road area generally is unsuitable for residential development.