Shifts in Victorian climate law and policy and the planning system

Since December 2008 Victoria’s climate policy framework has changed significantly. The changes have been driven by, and most readily observed within, the Victorian planning system. It has been these changes in Victoria and earlier elsewhere (particularly in NSW through decisions by the Land and Environment Court) that have given rise to a ‘new climate law’ in Australia.(1) In Victoria this new climate law especially prioritises consideration of all risks associated with coastal changes caused by global climate change.

Within Victoria a shift in the law can be traced to the decision of Justice Morris in the so-called Hazelwood case of 2004,(2) where Justice Morris held that greenhouse gas emission concerns raised by objectors could not be excluded from consideration by a panel inquiry. This decision was based firmly on a legalistic interpretation of the law, and not grounded in climate policy. Similarly, the landmark Gippsland Coastal Board decision in 2008(3) was based on a policy framework that did not appropriately deal with climate change risk. This is acknowledged by the Tribunal at para 35 where the members state that “the specific consideration of sea level rises, coastal inundation and the effects of climate change are not set out within the Victorian Planning Provisions”. At para 25 of the decision the Tribunal found no particular guidance on climate risks in the 2002 iteration of the Victorian Coastal Strategy.

These two decisions are especially celebrated because they were realised in the absence of planning policy dealing with climate change and because they have been instrumental in influencing the development of climate policy within Victoria generally and particularly in the planning system.

The changes to policy came with the December 2008 amendments to clause 15.08 of the Victorian Planning Provisions through planning scheme amendment VC52. These amendments give partial effect to the December 2008 Victorian Coastal Strategy, and are supported by other policy documents and Ministerial directions. With these new policy pronouncements Victorian decision-makers for the first time became required to think differently about coastal land decisions. Whereas in the past decision-makers had no obligation to factor in climate risks when faced with land use or development proposals by the coast, decision-makers must now countenance climate change risks and either attempt to protect development from those risks or “avoid development in identified coastal hazard areas”.(4) They cannot close their mind to the inevitability of erosion, inundation, landslip and geotechnical risk, and they must take a precautionary approach when evaluating risks and determining decisions.

These changes amount to a dramatic shift in approach, and their effect is apparent in the subsequent decisions of VCAT. Since 2008 there has been a series of VCAT decisions universally finding that proposed developments should not proceed because of climate risk, at least without coastal hazard vulnerability assessments first being undertaken. No case has found that development should proceed untested and uncertain as to risk. In one of the most recent cases Member Potts claimed that the broad sweep of policy that was instituted in late 2008(5) now means that decision-makers must be more cautious and mindful of the multiple impacts of climate change on coastal areas.

1 Tim Bonyhady, ‘The new Australian climate law’ in Tim Bonyhady and Peter Christoff (eds) Climate Law in Australia (2007) ch 2.
2 Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100.
3 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 (Unreported, Gibson DP and Potts M, 27 July 2008).
4 Clause 15.08-2 of the Victorian Planning Provisions.
5 See Taip v East Gippsland Shire Council [2010] VCAT 1222 (Unreported, Potts M, 28 July 2010) para 69.

One Response

  1. Note: Just days after preparing this research note, the State Planning Policy Framework was amended. Significant changes were made to the policy regarding climate risk.

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