Legislative responsibility

Local Government has a clear responsibility to address the issue of climate change in a range of legislative, policy and guideline documents managed by the State and Federal Governments. The amount of information and legislation associated with climate change is rapidly expanding and Council will need to be in a position to respond proactively.

Local Government faces potential liabilities if it fails to address the issue of climate change. The Local Government Act 1993 (Sect 7 (e)) requires Councils, Councillors and Council employees to have regard to the principles of ecologically sustainable development in carrying out their responsibilities. This can be achieved through precautionary measures, meaning that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental ruin.

Similarly, the Civil Liability Act 2003 has introduced a new test to determine whether a council has breached it’s duty of care. Although difficult to establish, councils are advised to protect themselves by adopting clear policies.

Australian courts, through interpretation, have made it clear that many planning and environmental laws require consideration of the principles of Ecologically Sustainable Development (ESD).

Legal Precedents

The principles of Ecologically Sustainable Development (ESD) are incorporated into Commonwealth legislation (Environment Protection and Biodiversity Conservation Act 1999 (sections 3 & 3A)) and NSW legislation such as the Local Government Act 1993 (section 7(e)), Environmental Planning and Assessment Act 1979 (EP&A Act) (Section 5) and the Protection of the Environment Operations Act 1997(Section 6(2)). Section 79C of the EP&A Act places responsibility on a Consent authority to consider the ‘Public Interest’. The court has directed that when a consent authority is making a decision regarding public interest they must include the principles of ESD. ESD requires consideration of the relevant risks posed by climate change. In some planning merit appeals, courts have assessed the balance of the public interest of addressing climate change against private interests. Therefore, consideration of Climate change impacts is a requirement under law, whether or not Council has a policy dealing with the matter.

Recent decisions in the NSW Land and Environment Court have relied upon the application of ESD principles with particular reference to climate change. These decisions fall into two categories:

  1. Climate change mitigation where the Court has decided that the contribution of new development e.g. coal power stations, to greenhouse gases and thus climate change, must be considered by decision-makers (Gray v Minister for Planning)
  2. Climate change impact where the decision-maker must consider the impacts of climate change on proposed development in vulnerable coastal areas, eg – increased flooding (Walker v Minister for Planning).

Other jurisdictions in Australia have also considered the direct impacts of Climate change, namely:

  • Gippsland Coastal Board v South Gippsland SC&Ors (VCAT, 2008) where the impact of sea level rise due to the effect of Climate change (coastal inundation) was the principle issue, the result being the refusal of the application for subdivision.
  • Northscape Properties Pty Ltd v District Council of Yorke Peninsula (2007) SAERDC 50 in which the adequacy of coastal retreat and sea level rise was considered the principle issue – application refused.

As a general principle the directions provided by decisions of Courts are to be followed by Consent authorities.

It has been suggested by the Hon. Justice Brian Preston, Chief Judge Land and Environment Court of NSW, that from the impacts of climate change on developments and land there is

“the possibility that Local Government will be held liable for losses arising from climate change, if they are unwilling to take its impacts into account at decision-making stages and integrate their planning decisions”

It is only in recent years that climate change has been more widely accepted by the courts, as the potential exists for actions in negligence for damage or loss caused by climate change.