The Victorian Civil and Administration Tribunal (VCAT) recently made headlines for refusing to grant a planning permit for the development of coastal land with 6 dwellings. The Tribunal’s grounds of refusals relied in part on the effects of climate change and the potential for rising sea levels to adversely affect the proposed dwellings. The implications of this case are of substantial interest to planning permit applicants working in coastal areas.
The Application for Review before VCAT was lodged by the Gippsland Coastal Board against the South Gippsland Shire Council’s decision to grant permits for the development of 6 lots with an individual dwelling on each. The subject land was located in a Farm Zone and affected by both a Land Subject to Inundation Overlay and an Environmental Significance Overlay.
In refusing to grant planning permits for the six dwellings the Tribunal relied heavily on established planning principles associated with the Farm Zone, relevant overlay provisions and the State Planning Policy relating to coastal development. In addition to these conventional considerations, the Tribunal was asked by the Gippsland Coastal Board to consider the effects of climate change and the potential impact of rising sea levels on the subject land. This is where things got interesting…
Evoking Section 60 of the Planning Environment Act the Tribunal determined that rising sea levels are a valid planning consideration. Section 60(1) sets out what a responsible authority must consider before deciding an application and includes: (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.
Having determined that the potential for rising sea levels is a valid planning consideration, the Tribunal then turned its mind to how much weight should be given to such a consideration and noted:
…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.
The Tribunal in its decision placed substantial weight on the fact that historically the subject land had relied upon an earthen sea-wall to protect it from sea level surges. Despite the absence of expert evidence at the hearing, the Tribunal formulated the following position:
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.
Clause 1 believes it is highly likely that the planning permit application discussed above would have been refused by VCAT irrespective of the climate change and sea level arguments. It appears VCAT has taken this opportunity to put the Victorian planning and development community on notice that climate change and rising sea levels are a relevant consideration and may be of increasing importance in the future.
The relevance of climate change in planning permit decisions is very much an evolutionary process and as a result it is difficult to determine what affect this decision will have on future planning permit applications relating to coastal development.
Planning permit applicants should be aware that considerations like those outlined above may be relevant to any future application for development in low lying coastal areas potentially at risk from rising sea levels. However this decision is not a “nail in the coffin” for coastal development as any application to develop land will be assessed on its individual merit. While the Tribunal determined that the potential impact of sea level rises was an unacceptable risk in this case, it does not mean the same will be determined in any future case exhibiting different characteristics.
It is recommended that anyone seeking to obtain a greater understanding of the potential risk associated with rising sea levels on a specific site should seek advice from the relevant Coastal Management Board. Contact details are provided below:
Gippsland Coastal Board Ph: (03) 5152 0451
Central Coastal Board Ph: 03-8627-4724
Western Coastal Board Ph: (03) 5226 4008
Seek Professional Advice: Information contained in this publication should be considered as a reference only and is not a substitute for professiional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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Last updated 030708