Myers v South Gippsland SC (No 2)  VCAT 2414 (19 November 2009).
This case is available at: http://www.austlii.edu.au/au/cases/vic/V….
This VCAT case, before Presiding Member Tracey Bilston-McGillen and Member Ian Potts, follows on from the initial interim decision in Myers v South Gippsland  VCAT 1022 (22 June 2009). In the first case, Presiding Member Bilston-McGillen called for a coastal hazard vulnerability assessment prior to a decision on the application of a permit to subdivide a property into two lots. The coastal hazard vulnerability assessment was considered in this case, resulting in the dismissal of the application for subdivision.
The reasons for this decision came from the coastal hazard vulnerability assessment itself, along with the Members’ application of the precautionary approach endorsed by the following policy frameworks: the Victorian Coastal Strategy 2008, Managing Coastal Hazards and the Coastal Impacts of Climate Change and the General Practice Note 2008 (see my posting in the Australian case law section summarizing the content of these documents). Presiding Member Bilston-McGIllen and Member Ian Potts balanced the ‘findings of the coastal vulnerability assessment and policy framework with the expectation for development in this Township Zone’ [para 6]. They agreed with the findings of the expert coastal assessment, relying upon the expert’s evidence and assessment when making their decision that by 2100 the subdivision site would be inundated by sea water, including the dunes and the present road, even if there were a seawall protecting the road from storm surge.
Obiter comments made by VCAT in the case suggested that a regional, if not State wide, approach to assessing coastal risks would be preferable than addressing the issue of coastal vulnerability on a lot by lot or development by development basis. In the view of the Tribunal such an approach ‘should address issues and potential remedial actions, be they engineering or planning based, and seek to produce a coordinated response’.