Focus: Victorian coastal climate change – issues and options paper
16 March 2010
In brief: The Victorian Government's Advisory Committee on Coastal Climate Change has published an issues and options paper to stimulate debate about how the land use planning system should respond to climate change on the coast. Partner Chris Schulz (view CV) and Senior Associate Meg Lee report.
- Problems identified with the current system
- Committee seeks specific input
- Initial recommendations of the committee
- Where to from here?
How does it affect you?
- Developers, coastal property owners, water authorities and coastal councils should each consider making a submission to the Advisory Committee to ensure their views are considered when the committee further develops its recommendations to the Minister on proposed amendments to the Victoria Planning Provisions to effectively and efficiently respond to coastal climate change.
The Coastal Climate Change Advisory Committee was set up to respond to growing uncertainty among the land use planning and development community as to how to manage development in areas potentially vulnerable to future sea level rise due to climate change. While the State Planning Policy Framework (clause 15.08) contains some general guidance on managing coastal hazards and a specific direction to decision-makers to 'plan for a sea level rise of not less than 0.8 metres by 2100', the application of this direction (and the Ministerial Direction (No.13) and Practice Note that supports it) has vexed decision-makers. The cases that have come before the Victorian Civil and Administrative Tribunal (VCAT) have generally applied the policy so as to refuse development approval due to the risk of future flooding from sea level rise, both for small two-dwelling developments in existing settlements1 and for larger subdivisions in greenfields areas2. In other cases, VCAT has deferred a decision on development until a coastal hazard vulnerability assessment has been prepared3.
With this background, the committee was given wide terms of reference by the Victorian Minister for Planning to advise him on how the land use planning and development controls can best support the Victorian Government's policy for managing the coastal impacts of climate change and to support the Victorian Coastal Strategy 2008.
Key areas for consideration by the committee are set out in the terms of reference and include:
- the operation and appropriateness of existing Victoria Planning Provisions (VPP) for example, policy, zones and overlays, in considering coastal climate change impacts;
- the form of new or amended VPP provisions to facilitate the use of emerging vulnerability information from the Government's Future Coasts program; and
- the use and application of appropriate coastal hazard assessment methods and information within current or proposed planning and development control provisions of the VPP.
The committee is also empowered to consider 'Any other matters that [it] considers relevant to planning and development decisions that facilitate climate change adaptation along the coast.'
The issues and options paper has been prepared by the committee as a background for the committee's views and as a means for generating discussion and stimulating submissions from interested parties. Much of the paper is spent setting out what the current legislative and policy context is for coastal climate change, including a review of recent cases at VCAT and a review of the approach adopted in other states and internationally.
The paper highlights some of the main problems being encountered at present by users of the planning system. For example,
- how to best identify vulnerable areas using the planning system;
- how to handle current or foreshadowed proposals for intensification of development in vulnerable areas;
- the need to better understand the interaction between catchment-based flooding and sea level rise and other climatic changes;
- the need to identify a source of advice to councils regarding risks of coastal erosion;
- perceived inconsistencies in some of the advice concerning the application of sea level rise benchmarks, including how to apply the Victoria Coastal Strategy requirement (as reflected in clause 15.08 of the VPPs) of planning for 'not less than 0.8 metres of sea level rise by 2100' to decisions regarding current and future planning applications;
- the lack of a specific tailored zone or overlay tool to deal with the impacts of coastal climate change and development in vulnerable areas; and
- the inequity and inefficiency of site-specific coastal hazard vulnerability assessments for very small or single lot developments and the need for a more strategic and regional approach to these.
Another problem with the current system that the committee considered in passing was the role of existing water referral authorities in commenting on climate change-related flooding in their roles under the existing flood overlays4. The cases to date before VCAT5 have highlighted the uncertainty surrounding the role of these authorities and whether or not the conditions they impose relating to finished floor levels should take account of coastal climate change flooding, as well as their traditional role in considering overland flows. The committee noted that this role needs clarification. A related issue of equity is that, because flood mapping is currently based upon overland flooding (and does not currently include coastal climate change flooding), many developments outside this area that may be impacted by coastal climate change flooding will not currently trigger a referral and therefore will not trigger any floor level requirement.
The paper highlights some options about which the committee is seeking input, including the following key issues:
- the means by which regional (rather than ad hoc site specific) vulnerability assessments could be undertaken and how their outcomes could be incorporated into the planning scheme framework;
- the potential use of the Comprehensive Development Zone structure to model a new zone to address the effects of sea level rise on coasts and estuaries using a schedule that can be specific to the needs of particular locations. In particular, the committee is seeking input on what uses should be 'as of right' in such a zone as well as referral mechanisms and appropriate decision guidelines;
- whether a new overlay is desirable to deal with sea level rise impacts or whether the existing tools (such as the Rural Floodway Overlay, Land Subject to Inundation Overlay and Special Building Overlay) are adequate. In this regard, the committee notes that there are numerous other overlays that touch on or have a potential role to play in planning for climate change strategies of avoidance, protection, and retreat and that it may be preferable to collapse some of the layering of overlays into a more comprehensive overlay tailored to climate change. In particular, the committee is seeking comments on what the triggers should be under the overlay for a coastal hazard vulnerability assessment and what exemptions there should be (for example, for subdivisions of less than four lots, or for new single dwellings in existing settlements);
- whether the use of section 173 agreements to notify and inform landowners and potential purchasers of coastal vulnerability hazards is appropriate;
- whether the impacts of climate change on our coasts and communities is significant enough to warrant a new regulatory body to assist with undertaking and managing future regional land use planning and, if so, what form that body should take; and
- whether time-based planning permits (ie permits that expire and require the development to be removed upon expiry) should be used as a means of allowing land to be used until such time as the direct threat from sea level rise becomes more evident. Obviously such permits give rise to difficulties in administration and enforcement.
The committee considers that the current policy tools have been useful in raising awareness, but that there is an urgent need for short-term interim controls to ensure consistency of approach in decision-making and to produce equitable outcomes for land owners and developers in coastal areas.
The committee essentially proposes a staged approach to amending the VPPs to enable them to better cope with the challenge coast climate change presents to planning and responsible authorities in making land use decisions, namely:
- An immediate interim solution to prepare a new clause 52 particular provision to complement the requirements of Ministerial Direction No.13. The provision would apply only to coastal councils and will trigger planning permits for land use and development on land near the coast and will clearly specify requirements for when a coastal hazard vulnerability assessment is required and when development will be exempt.
- A new 'coastal hazard' overlay should be prepared in the relatively short term (2010-15) in order to anchor and improve coastal vulnerability assessments.
- A model Local Planning Policy should be developed in the relatively short term (2010-15) to assist planning authorities to address the issue of coastal hazards and the impacts of climate change.
- A new zone is considered to be a longer term project (2015-20), as it raises a lot of difficult issues such as how to deal with existing land use rights and how to ensure the zone it actually taken up by coastal councils.
- Amendments to clause 15.08 are considered to be necessary in the longer term (2015-20) to accommodate new sea level rise information and to prove a stronger focus on regional and settlement planning.
Now that the issues and options paper has been completed, the Advisory Committee is required to follow a process consisting of review of all submissions received, an appropriate program of hearings and workshops and then submitting a final report to the Minister by December 2010.
In order to take part in this important process of shaping the way that we deal with the impact of climate change on the use and development of coastal land, interested parties need to make a submission to the committee by 26 April 2010.
- See Ronchi v Wellington Shire Council  VCAT 1206.
- See Gippsland Coastal Board v South Gippsland SC & Ors (No 2) (Red Dot)  VCAT 1545 (29 July 2008) and W & B Cabinets v Casey CC  VCAT 2072 (7 October 2009).
- See Owen v Casey CC  VCAT 1946 and Myers v South Gippsland Shire Council  VCAT 1022.
- See section 9.2.3 of the paper.
- See Owen v Casey CC  VCAT 1946 and W & B Cabinets v Casey CC  VCAT 2072 (7 October 2009).
- Chris SchulzPartner,
Ph: +61 3 9613 8772
- Meg LeeSpecial Counsel,
Ph: +61 3 9613 8154
- Bill McCrediePartner,
Ph: +61 7 3334 3049
- Paul LalichPartner,
Ph: +61 2 9230 4026