This case is available at: http://www.austlii.edu.au/au/cases/vic/V…
In this case the Applicant, Mr Hooper, lodged an application with Casey City Council for 22 dwellings to be built on the South Gippsland Highway. The subject site and neighbouring land came within a Land Subject to Inundation Overlay, necessitating a permit for buildings and works. Melbourne Water and South East Water were referral authorities under the overlay, which required consideration of the susceptibility of the site to flooding.
A lengthy process of consideration followed. Prior to the Council making an actual decision on the application, the applicant lodged a review with the Tribunal for ‘failure’ to make a decision. Shortly thereafter the Council considered the application and indicated its opposition on a number of grounds including that ‘The proposed development is contrary to objectives of Clause 15.08 – Coastal Areas of the Casey Planning Scheme by proposing an intensive development within an area susceptible to flooding and in the absence of Coastal Vulnerability Assessment.’
On 3 August 2009, the Council had written to VCAT seeking its advice on the coastal vulnerability issue given the nature of the site and recent case law about the need for coastal hazard vulnerability assessments in areas at risk of climate change induced flooding (see blog summaries: Myers and Ronchi cases). Specifically, Council Officers sought a direction as to whether a Coastal Hazard Vulnerability Assessment was required prior to the application for review proceeding. Member Keaney remarked: ‘The relevance of climate change in the planning process is still in an evolutionary stage, therefore if the Tribunal considers that it is warranted in this particular instance, a preliminary hearing or direction from the Tribunal may be appropriate.’ At the hearing Council acknowledged that this was more of a “merits” issue than a preliminary issue, but maintained that it was premature to grant a permit until such time as a coastal hazard vulnerability assessment had been conducted.
Member Keaney noted that Amendment C52 ‘required any decisions should be consistent with the Victorian Coastal Strategy 2008’, thus ensuring that planning for the management of coastal hazards and the coastal impacts of climate change should:
• ‘Plan for sea level rise of not less than 0.8 metres by 2100, and allow for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and coastal impacts associated with climate change.
• Apply the precautionary principle to planning and management decision-making when considering the risks associated with climate change.
• Ensure that new development is located and designed to take account of the impacts of climate change on coastal hazards such as the combined effects of storm tides, river flooding, coastal erosion and sand drift.
• Ensure that land subject to coastal hazards are identified and appropriately managed to ensure that future development is not at risk.
• Avoid development in identified coastal hazard areas susceptible to inundation (both river and coastal), erosion, landslip/landslide, acid sulfate soils, wildfire and geotechnical risk.’
Member Keaney also referred to the two relevant companion documents accompanying Amendment C52: the General Practice Note – “Managing coastal hazards and the coastal impacts of climate change” and Ministerial Direction No. 1 – “Managing coastal hazards and the coastal impacts of climate change” (see blog entry on Vic coastal climate change policy).
Member Keaney noted that within the terms of the Practice Note the proposal could be considered a ‘large scale development/subdivision proposal which seeks to introduce significant change to built form and intensity within a coastal area’. According to the Practice Note, such a development scenario might be addressed by requiring a coastal hazard vulnerability assessment ‘to determine potential exposure and development suitability of the land to evaluate risks’. However, Member Keaney was careful to distinguish between this case and Myers v South Gippsland SC, which involved a proposed development ‘directly opposite the beach and the submission from the West Gippsland Catchment Management Authority was evidently not helpful in resolving the need for a further hazard assessment.’ He held that the issues raised in this case were only made ‘apparent after the introduction of Amendment C52.’ Following the Amendment, Melbourne Water, maintained its prior stance that they did not object to the proposed development, subject to their original ‘unusually onerous’ conditions that ‘the finished floor level be a minimum of 600mm above sea level. The LSIO typically requires that finished floor level be only 300mm above the flood level.
Member Keaney found that Council had been entirely correct and responsible in raising coastal vulnerability as an issue. However, he was satisfied on the basis of the intervention and advice of Melbourne Water that the relevant assessment as required by the General Practice Note had been carried out and that appropriate limitations on development had been suggested. Ultimately, Member Keaney held that no planning permit be issued, however, this was based on other grounds including housing policy, village character and intensity of development.