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13 Aug 2010

Victorian coastal policy: a work in progress

by Sallyanne Everett, Jessica Kaczmarek

Proponents will likely require a favourable coastal vulnerability assessment before any planning permit will issue.

With coastal policy still being developed at both the State and national level, decision-makers in Victoria have already started to place responsibility on proponents to demonstrate that their coastal development will withstand potential future climate change impacts.

Current Victorian planning policy

The Victorian Coastal Strategy 2008 is Victoria's primary planning document, most recently updated in December 2008 to specifically acknowledge the risk to Victoria's coastal areas posed by climate change. The Strategy was incorporated into the Victoria Planning Provisions by clause 15.08 of the State Planning Policy Framework, ensuring that the Strategy must be considered by those responsible for planning decisions in coastal areas.

Although reviewed every five years, the Strategy is intended to provide for the long-term planning of Victoria's coast for the next 100 years and beyond, focusing on the three primary issues of climate change, population and growth and marine ecological integrity. The Strategy sets out the Government's policy commitment and a framework for the development and implementation of other strategies and plans at the regional and local levels.

Importantly, the Strategy introduces the requirement for decision-makers to apply a precautionary approach when assessing climate change risks and to plan for a sea level rise of not less than 0.8 metres by 2100 when assessing development applications on private and coastal Crown land that is directly influenced by, or directly influences, the sea.

The Strategy has been criticised for its imprecise scope and for focusing on future development without dealing with properties that have been identified as vulnerable but are already zoned to allow or have permits for development. The Strategy also provides little guidance on how responsible authorities are to assess evidence of coastal hazards and the potential adverse effects arising from climate change.

Approach of decision-makers

Given the gaps in policy, over the past 18 months, the Victorian Civil and Administrative Tribunal and Planning Panels Victoria have taken on key roles in considering the potential impacts of climate change. Responsibility has been placed squarely upon proponents of developments to establish how the proposal is likely to be impacted.

In Owen v Casey CC [2009] VCAT 1946, the Tribunal found that the proponent was required to provide a coastal hazard vulnerability assessment to properly assess a permit application, following the trend established in Ronchi v Wellington SC [2009] VCAT 1206 and Myers v South Gippsland SC [2009] VCAT 1022.

The Tribunal in Owen considered that, although the assessment may seem onerous for proponents of small developments (in this case only two dwellings), State policy required the permit application to be assessed with reference to the wider risks, and consequences to the community, of climate change. The Tribunal expected that these assessments will one day become routine in the planning process, in a similar way to Aboriginal cultural heritage assessments.

In Myers v South Gippsland SC (No 2) [2009] VCAT 2414, the Tribunal was required to balance findings of a coastal hazard vulnerability with expectations for future development in assessing an application for subdivision in the Waratah Bay area. The Tribunal applied a precautionary approach to climate change, concluding that it could not support the application where there was no local mitigation strategy and the expert evidence indicated that by 2100 the site would likely be inundated with sea water and have no dune, road or foreshore access.

In both Ronchi and Owen, the Tribunal held that the current policy places a significant onus on permit applicants to respond to climate change risk and considerations in the design of development proposals. Both of these cases also affirmed the onus on decision-makers to take climate change into account.

Future amendments

Until further policy and legislative changes are introduced, coastal vulnerability will continue to be dealt with primarily on a site-by-site basis. Change is likely to occur after the Coastal Climate Change Advisory Committee, which was established to advise on land-use planning and development controls regarding the coastal impacts of climate change, reports to the Victorian Minister for Planning in December 2010.

In its Issues and Options Paper, released in February 2010, the Advisory Committee made a number of interim conclusions which provide a preliminary indication of what might be recommended to the Minister. In particular, the Advisory Committee noted that the current State Planning Policy Framework could more effectively assist planning and responsible authorities to identify appropriate adaptation responses for existing properties that are already vulnerable to coastal climate change. Introducing specific overlays or controlling use as well as development have been suggested as means of enhancing adaptation.

The Advisory Committee's work is intended to be complementary to the Department of Sustainability and Environment's Future Coasts program which is assessing the vulnerability of Victorian coastal areas and settlements to the effects of coastal climate change, and developing guidelines to manage hazards.

Conclusion

The Advisory Committee's Final Report at the end of this year may result in some of the shortfalls in Victorian policy dealing with coastal climate change being addressed. In the meantime, those applying for planning permits in coastal regions are advised to obtain expert advice on the potential for climate change impacts on their development proposal. Proponents will likely require a favourable coastal vulnerability assessment before any permit will issue.

Thanks to Laura Thomson for her help in writing this article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.