This case is available at: http://www.austlii.edu.au/au/cases/vic/V…. Note: This case was heard concurrently with D’Abate v East Gippsland SC & Ors  VCAT 1320 (6 August 2010) however it was determined separately.
This case concerned an application for a three storey multi-dwelling development in the Coastal Town of Lakes Entrance where proposed development is highly vulnerable to flooding and to climate change impacts. In November 2008 the East Gippsland Shire Council granted a permit for residential development of eight dwellings in the Business 1 Zone (B1Z) in Lakes Entrance. The proposed development was subject to a Land Subject Inundation Overlay (LSIO) and thus required referral to the East Gippsland Catchment Management Authority (the EGCMA). The ECGMA did not object to the Council granting the permit.
Ms Taip, an objector, made an application to VCAT to review the decision of the Council but her issues were later resolved. The EGCMA then applied for and was granted leave to join the application for review in order to object to the grant of the permit. Initially the EGCMA wanted to object to the grant of the permit due to flooding issues and the potential impacts from climate change and sea level rise. The ECGMA later amended its statement of grounds, deleting references to climate change and sea level rise. This left the risks posed by flooding as the substantive matter for the Tribunal to determine. Nevertheless, the Tribunal decided to examine the flooding question in the broader context originally raised by the EGCMA objection, namely 1) the existing flooding risk under current climate conditions and lake levels; and 2) the level of risk from sea level rise and other effects from climate change.
Member Ian Potts found the ‘current level of risk and hazard, on balance… to be acceptable’ and if the current level were the only issue at hand then he would have directed for the permit to be granted. However, Member Potts also commented that in the future ‘the Lakes Entrance had a very high vulnerability to flooding and to the impacts of climate change including sea level risk’.
Member Ian Potts determined the extent of the site’s vulnerability to climate change impacts relying upon the strategies and policies contained within the East Gippsland Planning Scheme, including Urban Design Framework C68, as well as a number of other relevant strategies, guidelines and materials. He considered the other potential impacts of climate change for the development, including the effects of tides, storm surges and other local conditions. He relied upon several studies, including the Gippsland Coastal Board’s study on climate change, sea level rise and subsidence prepared in 2008 to assess the degree of flood/inundation risk due to increases in the ‘predominance of south-westerly frontal weather patterns; increases in wind speed; increases in storm surge heights, by up to 10%; and increases in frequency and intensity of extreme events ‘by approximately 10%’.
Member Potts held that a cautious approach was warranted while planning frameworks and other responses (such as the development of coastal climate change policy by the Vic government) are set in place to address and minimise coastal climate change risks. Granting a permit prior to that would ‘fail to satisfy the purposes of planning in Victoria for intergenerational equity, sustainable, fair and socially responsible development’. He considered that it was insufficient to rely on raising the building floor level above projected water levels and that approving this development would not create an orderly planning outcome. The Tribunal also dismissed other arguments raised by the Council regarding the possibility for sterilisation of development in the area and that the ‘economic life’ of the development would expire before any major climate change impacts would be felt.
Member Potts was critical of the Council’s reasoning that there should be no halt to development in an existing urban coastal area due to climate change induced sea level rise on the basis that there remains sufficient time before the impacts of climate change manifest to develop policy and planning responses. Ultimately, Member Potts remarked that ‘such decision making is difficult. Being difficult is not a sufficient reason to defer it. There are severe and long term consequences from the impacts of climate change that are required to be addressed now. State planning policy directs planning and responsible authorities to do so.’