Climate Change issues as a factor in decision making some recent Court decisions

Transcription

1 Climate Change issues as a factor in decision making some recent Court decisions Paul Leadbeter Partner 12 September 2008

2 Predicted impacts of climate change include: Sea level rise Changed weather patterns storms, more intensive rainfall events, more droughts More extreme temperatures Decreases in yields from food crops Increased water shortage/groundwater contamination Increased threats to human health Displacement of some communities? Extinction of some species of plants and animals Australia - most adversely affected of industrialised nations.

3 Strategies to address climate change include: Mitigation reduce greenhouse gas emissions Adaption prepare for the inevitable changes and minimise impact Planning important process for both strategies Climate change factor considered in development assessment processes Development Proposals for: Coal mines Coal fired boilers Coastal land divisions/coastal development Power stations

4 Coastal Development - SA

5 Sea level rise is inevitable due to past emissions Issue for development along low-lying coastal areas ERD Court and Supreme Court accepted evidence ie shoreline retreat due to climate change and sea level rise to refuse land division proposal 80 allotments proposed. (Northcape Properties v District Council of Yorke Peninsula) Range of development plan provisions re coastal area Plan sought preservation of native vegetation, allowance for coastal erosion and for provision of erosion buffer and coastal reserve to cater for first 100 years of development Allowing for erosion buffer (35 40 metres) would reduce important coastal reserve area

6 Coastal Development - Victoria Gippsland Coastal Board v South Gippsland Shire Council (July 2008 VCAT) Applications for 6 planning permits for dwellings on 2-4ha sized lots Farming Zone, close to coast, old Crown township area Low lying land, prone to high water tables, flooding, at risk from sea level rise Active farming area some rural living allotments Planning policy for area overwhelmingly against dwellings No specific reference to climate change legislation or policy Planning Authority must consider any significant effects which environment may have on the use or development Preliminary CSIRO studies indicated sea level rise & coastal inundation in area Applying precautionary approach risks were such that land unsuitable for residential development.

7 Coal Fired Boilers SA Thornton v Adelaide Hills Council Development shed to have 4 megawatt coal fired boiler and coal storage area Purpose: heat existing flower greenhouse Expert evidence on likely emissions from boiler Standards for emissions of CO 2, NO 2 & PM 10 not exceeded Argued develop not ecologically sustainable - coal burning = greenhouse gases Held - Council should facilitate development that is sustainable - Development increasing levels of GHG not sustainable - No evidence produced showing likely to be increase in overall emissions of GHG by proposed development.

8 Coal Mine Proposal NSW Anvil Hill Case

9 Gray v. The Minister for Planning & others Proposed open cut coal mine 150 million tonnes of coal 10.5 million tonnes per annum Coal to be burned as fuel in power stations in NSW & overseas Major project EIA required Legal challenge to adequacy of EIA prepared (judicial review) Held - GHG emissions from burning of coal (extracted from mine) should have been considered in EIA because of potential contribution to climate change But-ESD principles don t require that GHG issues override all others

10 Walker v. Minister for Planning NSW-27 November 2007 Residential subdivision & retirement village at Sandon point on NSW Central coast Minister was required to consider ESD as part of the public Interest when deciding development application Failure to consider ESD principles by failing to consider whether future weather patterns caused by projected climate change would increase risk of floods in area already flood prone

11 Hazelwood Power Station Redevelopment

12 ACF v.latrobe City Council Involved proposal to amend Latrobe planning Scheme to facilitate expansion of Hazelwood power station Judicial review challenge Planning minister had directed planning panel not to consider matters related to GHG emissions of power station when considering amendment Held: 1. Minister could not direct Panel in that way 2. If sufficient nexus between plan amendment &effect of amendment submissions could be made about it. 3.Was sufficient nexus between amendment & environmental effect sof GHG that were likely to be produced by power station

13 Conclusions-Climate change: Relevant consideration if Development plan refers to it Should always be borne in mind when drafting policy Only one of a number of considerations Requires support of appropriate expert & technical; evidence If ignored in development assessment process may create potential liability for planning authorities

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