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Precedent (Australian Lawyers Alliance) |
LAND-USE PLANNING SYSTEMS AND CLIMATE CHANGE IN AUSTRALIA
By David Cole, Michael Doherty and Paul Leadbeter
CLIMATE CHANGE
‘It is unequivocal that human influence has warmed the atmosphere, ocean and land’, states the Intergovernmental Panel on Climate Change (IPCC) in its most recent report.[1] The IPCC continues:
‘Widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred. Global surface temperature will continue to increase until at least the mid-century under all emissions scenarios considered. Global warming of 1.5°C and 2°C will be exceeded during the 21st century unless deep reductions in carbon dioxide (CO2) and other greenhouse gas emissions occur in the coming decades’.[2]
The Australian continent is not immune to the effects of climate change. Significant alterations in weather patterns across Australia are now well-documented, including a marked increase in the frequency and intensity of bushfires and a decline in rainfall across south-eastern Australia. Global sea-level rise is impacting on parts of the Australian coast. Scientists predict that over coming decades southern and eastern Australia will experience more extreme heat events, longer droughts, extended fire seasons and further sea-level rise.[3]
POLICY RESPONSES
Change of this nature leads to socio-economic disruption and dislocation. It is apparent that the assumptions about climate behaviour and weather patterns – upon which political, social and economic decisions have been based – are no longer reliable.
The policy response to climate change at an international level is occurring largely through the Paris Agreement, to which Australia is a party.[4] The key objective of this Agreement is to limit global mean temperature rise to ‘well below 2°C above pre-industrial levels and pursu[e] efforts to limit the temperature increase to 1.5°C above pre-industrial levels’.[5] Reflecting the Paris Agreement, many nations are adopting the target of net zero greenhouse gas (GHG) emissions by 2050.[6]
In the absence of federal leadership, it has fallen upon the states and territories of Australia to develop climate change strategies that reflect the targets of the Paris Agreement.[7]
THE ROLE OF LAND-USE PLANNING SYSTEMS IN MANAGING CLIMATE CHANGE
Land-use planning systems in Australia as in other jurisdictions are a key regulatory platform for reducing GHG emissions and assisting populations and communities to adapt to the inevitable consequences of climate change. In this respect, the issue confronting Australia is whether our land-use planning systems are effectively adopting this role and, if not, how rapidly they can be directed to address this challenge.
THE NATURE OF LAND-USE PLANNING SYSTEMS
In broad terms, the essential features of land-use planning systems in Australia comprise: ‘parent’ planning legislation; policy and planning instruments (including planning rules for the assessment of development applications) developed in conformity with the objectives of that legislation; and, in conjunction with those instruments, the organisational and procedural machinery for the processing and determination of development applications by relevant authorities. However, the structure and composition of planning systems within each jurisdiction vary depending on a range of cultural, historical and geographical factors, leading one writer to describe the respective systems as ‘idiosyncratic’.[8]
As in many other jurisdictions, land-use planning systems in Australia are directed to balancing, accommodating and attempting to reconcile various commercial, social and environmental interests. One significant issue for policymakers is whether this model, which tends to produce optimal rather than ideal outcomes, is appropriate for effectively addressing the critical issue of climate change.
The determination of development applications by relevant planning authorities on their merits (where a proposal is neither explicitly permitted nor prohibited under the relevant planning legislation) involves a process of weighing the pros and cons of the proposal as assessed against the relevant planning rules and finding a ‘planning balance’.[9] In these circumstances, even if the relevant planning rules do include climate change provisions, it does not follow that they will be reflected in the outcome of a development assessment unless the climate change provisions are explicitly expressed or the rules require that they be granted higher priority than competing provisions.
Given the recognised threats posed by climate change, there is argument for robust intervention by governments to ensure the appropriate recognition of climate change mitigation and adaptation in formulating planning rules and in assessing and determining development applications against those rules.
TRENDS IN ADDRESSING CLIMATE CHANGE
The limitations of our planning systems in responding to climate change are reflected in the declaration of a climate emergency by the Planning Institute of Australia (PIA) in 2020.[10] More recently, the PIA has called for ‘climate-conscious planning systems that reflect the reality of a climate emergency and allow planners to make the best decisions possible’.[11]
Constitutionally, planning and development regulation falls largely to states and territories.[12] With respect to climate change, this leaves each jurisdiction to determine the nature and timing of the integration of climate change factors into its land-use planning system.
The approaches of land-use planning systems across Australia in addressing climate change vary significantly. For example, Queensland’s recently revised planning system includes a state planning policy that makes multiple and specific references to climate change. By contrast, NSW has no climate change state environment protection policy (SEPP), with climate change being addressed through other SEPPs and local environment plans (LEPs). Meanwhile, SA has recently overhauled its planning legislation, making limited reference to climate change in the process (discussed below).
As a general proposition, land-use planning systems in Australia do not demonstrate either a capacity or intent to effectively address the management of climate change.
RECOMMENDED CLIMATE CHANGE CRITERIA FOR LAND-USE PLANNING
The threats posed by climate change require an appropriate and proportionate response from any land-use planning system. The authors suggest that the conventional characteristics of the Australian planning model seeking to achieve ‘balanced’ outcomes from development applications should be modified. Planning legislation should make climate change an appropriately high priority in the formulation of planning policy and, more importantly, impose on relevant authorities more prescriptive requirements for addressing climate change. We recommend that land-use planning systems possess the following features:
1. Explicit reference in the relevant planning legislation (the primary Act) to climate change, its impacts and the role of land-use planning in addressing this issue;
2. Objects in the primary Act specifying that planning processes are a principal driver of climate change mitigation and adaptation and shall be a primary vehicle for the implementation of state/territory climate change policy and emission targets;
3. A requirement in the primary Act for a detailed and overriding planning policy (or policies) to be prepared on climate change;
4. Explicit and comprehensive reference to climate change in the planning rules to be applied by relevant authorities in the development assessment process;
5. A mandatory requirement in the primary Act that planning rules which planning authorities must consider when determining development applications should explicitly reflect the requirements of the detailed planning policy on climate change; and
6. A statutory requirement that, in circumstances of competing planning provisions applicable to a development assessment, climate change criteria take priority.
SA CASE STUDY: PLANNING, DEVELOPMENT AND INFRASTRUCTURE ACT
Summary of the Act
The Planning, Development and Infrastructure Act 2016 (SA) (PDI Act), the latest of several major planning legislation revisions in the last decade,[13] is examined below to illustrate the extent to which contemporary land-use planning systems address climate change mitigation and adaptation in Australia.
The PDI Act is the statutory outcome of a review of the former Development Act 1993 (SA), commenced under the then state Labor Government in 2013. The review was initiated by claims from various interest groups that the planning system had become unwieldy, inefficient and duplicative.[14] The PDI Act became fully operational on 19 March 2021.
The purpose of the Act is to regulate the use, development and management of land and buildings in SA.[15] The objects of the Act are set out in detail in s12 and include supporting and enhancing ‘the State’s liveability and prosperity in ways that are ecologically sustainable’.
State planning policies (SPPs) establish planning direction for the state. SPPs also inform the content of the Planning and Design Code (the Code), which is the principal document against which relevant authorities established under the Act[16] must assess development applications.[17]
Relevant authorities are responsible for assessing development applications with respect to specified classes of development. Three categories of development are specified by the Act: accepted development; code assessed development; and impact assessed development. ‘Accepted development’[18] does not require planning consent. ‘Code assessed development’ is categorised either as ‘deemed-to-satisfy development’[19] or ‘performance assessed development’.[20] The former category requires that the relevant authority be satisfied that the proposed development meets a range of criteria specified for that category of development within the relevant parts of the Code or regulations. ‘Performance assessed development’ requires assessment on its merits against the relevant provisions of the Code. The third category, ‘impact assessed development’,[21] requires assessment against a range of statutory criteria, including reference to the Code without being bound by it.
‘Performance assessed development’ (assessment on its merits) gives rise to particularly significant issues with respect to climate change, as it is for this class of development that relevant authorities assess each application against the relevant provisions of the Code, including any provisions relevant to climate change management. For the purpose of assessing and determining performance assessed development, Table 3 within each zone identifies the policies (including performance outcomes) applying to the zone and sub-zones. Further, relevant overlays and applicable general development policies are found under Part 4 of the Code.
The PDI Act and climate change
Criteria 1–2: Statutory references to and recognition of climate change
The PDI Act itself contains no standards or decision-making criteria by which the issue of climate change should be addressed in either policy or decision-making terms. However, several incidental provisions facilitate consideration of climate change in the formulation of planning policy and in assessing development applications (see below). Climate change is specifically referred to in s14 of the Act (‘principles of good planning’) and in s62 (‘State planning policy on climate change’).
The Act’s objects implicitly address climate change when referring to ‘supporting and enhancing the State’s liveability and prosperity in ways that are ecologically sustainable’[22] in that mitigating and adapting to climate change are essential for achieving sustainable development.
The objects of the Act also include promoting ‘cooperation, collaboration and policy integration’ between other state and local government bodies.[23] These objects therefore implicitly include coordinating with other government departments in relation to climate change and ensuring that planning law and policy is not at odds with broader state climate change policy. However, the Act does not attempt to establish any statutory relationship between the policy and target-setting roles of the Premier’s Climate Change Council under the Greenhouse Gas Reduction and Carbon Emissions Act 2007 (Cth) and the State Planning Commission’s urban and regional planning responsibilities under the PDI Act. This gap may be viewed as a critical omission.
Section 13 of the Act requires that ‘a person or body involved in the administration of the Act must have regard to and seek to further the objects [of the Act]’.[24]
The ‘principles of good planning’ require that, among other matters, regard must be had to sustainability principles, including the provision that ‘particular effort should be focused on achieving energy efficient urban environments that address the implications of climate change’.[25]
The obligation imposed on administrators to seek to further the objects of the Act, the object of sustainability and the relevant sustainability principles referring to climate change support the proposition that climate change should be addressed through planning policy and the assessment and determination of development applications.[26]
Considering the critical impact that climate change will have on the conditions under which people will live in the future, these limited and largely indirect references to the threat are insufficient. More detailed and direct provisions are necessary to highlight the significance of climate change, to recognise the pressing need to achieve net zero emissions and to develop climate change resilient communities.
Criterion 3: State Planning Policy 5 (Climate Change)
State planning policies (SPPs) establish the overarching goals and requirements for the planning system.[27] They are not to be taken into account for the purpose of any assessment or decision arising from a development application.[28] With particular exceptions, they are not and do not contain any statutory assessment criteria.[29] SPPs inform the preparation of regional plans (which must be consistent with any relevant SPP) and the formulation of the Code – in that the Code must comply with any ‘principle’[30] set out in an SPP.
Climate change is recognised under the PDI Act as one of five issues for which the Minister must prepare an SPP:
‘The Minister must ensure that there is a specific state planning policy (to be called the climate change policy) that specifies policies and principles that are to be applied with respect to minimising adverse effects of decisions made under the Act on the climate and promoting development that is resilient to climate change.’[31]
SPP 5 is a three-page document that contains the objective to:
‘[p]rovide for development that is climate ready so that our economy, communities and environment are resilient to climate change’.[32]
While the Policy does refer to climate change adaptation, it fails to address mitigation as required by s62 of the PDI Act.
The Policy contains 11 particularised policy clauses that are to be given effect through the preparation of regional plans and the Code. Regional plans must be consistent with any SPP in so far as the Policy is relevant to the specific region or area. It follows that all regional plans must be consistent with SPP 5, including the 11 policy clauses to the extent that they are relevant.
However, whatever the uptake of the climate change provisions of SPP 5, the regional plan will be of limited practical effect in that the Code is not required to comply with the provisions of a regional plan. The extent to which the framers and reviewers of the Code are required to address climate change is determined by the ‘principles for statutory instruments’ in any SPP (see above) with which the Code must comply.[33] The relevant principle within SPP 5 is as follows:
‘The Planning and Design Code should include a range of overlays that identify both the hazards that need to be considered when proposing new development and the features that should be protected due to their contribution to climate resilience, e.g., coastal dunes and natural environments that store carbon.
Policies should allow for innovative adaptation technologies; promote climate-resilient buildings; improve the public realm; and identify areas suitable for green industries and carbon storage.’
Apart from the flexibility provided by using the term ‘should’ (rather than the obligatory ‘must’), this principle imposes no clear or specific direction for the incorporation of appropriate climate change mitigation and adaptation provisions in the Code. This weakness is arguably illustrated by the failure of the Code to do so.
Criteria 4–6: The Planning and Design Code
The Code constitutes the principal element of the Planning Rules and is the primary document against which relevant authorities must assess and determine a development application on its merits. It is the state’s planning rule book and is the critical determinant of the nature and quality of development assessment outcomes in the state. Relevant authorities are prohibited from considering the policies, principles and objectives contained within other statutory instruments under the Act, including SPPs and regional plans.
The main issue here, therefore, is the extent to which the Code includes comprehensive, strong and clear climate change provisions to guide the range of determinations that will be made under the new land-use planning system. That is, does the Code treat climate change as a series of discrete planning and development issues to be addressed in the assessment process or, more appropriately, as a profound, long-term phenomenon with the potential to significantly impact the lives of current and future generations of South Australians?
The Code does not attempt to comprehensively introduce climate change provisions into the development assessment process as a whole. Further, there is limited explicit reference to climate change in the Code. ‘Desired outcomes’ specified for respective zones and sub-zones do not specifically refer to mitigation of or adaptation to climate change. Moreover, there are no overlays or general development policies explicitly for climate change mitigation and adaptation.
The Code contains several clauses that partly or wholly reflect the commonly recognised impacts of climate change, for example, provisions relating to bushfire risk, coastal management, Ramsar wetlands and water resources protection. However, not all of these provisions are expressly identified in the Code as being related to climate change. Similarly, there are requirements of the Code (for example, urban tree retention, building and window orientation, solar access, green walls and green roofs) that are directly related to climate change mitigation and adaptation but are not identified as such.
These weaknesses in the Code, coupled with the balancing of pros and cons that relevant authorities must undertake when assessing development applications, increase the likelihood of climate change management being under-represented in the assessment process and outweighed by other Code provisions.
CONCLUSION
The land-use planning systems of our states and territories largely understate the issue of climate change. They generally fail to recognise the role of land-use planning in the mitigation of and adaptation to climate change and the urgency of doing so.
In SA, there appears to be limited political recognition of the important role that planning legislation should play in addressing climate change. The PDI Act is the most recent comprehensive revision of planning legislation in Australia, yet it makes very limited reference to climate change.
While the Act possesses the machinery to address climate change mitigation and adaptation in SA, the new planning system, including most notably the key development assessment rules of the Planning and Design Code, falls well short of doing so adequately.
The new planning regime fails to assign priority to climate change factors arguably demanded by the threats posed by the phenomenon. Put simply, there is no coherent climate change narrative in the new land-use planning system in SA.
It is necessary to substantially strengthen the climate-related provisions of the Code and further modify other aspects of the state’s planning system so that the determination of development applications by relevant authorities benefits from strong and clear climate-related guidance. The result should be climate-ready and resilient development assessment outcomes that reflect the severity of the climate change threat along with the urgent need for an appropriate and proportionate response.
All of the authors are based in SA.
David Cole is an environmental lawyer. EMAIL coledavid@internode.on.net.
Michael Doherty is a planning and environment lawyer. EMAIL michaeldoherty13@hotmail.com.
Paul Leadbeter is an adjunct senior lecturer at Adelaide Law School. EMAIL paul.leadbeter@adelaide.edu.au.
[1] Intergovernmental Panel on Climate Change (IPCC), Climate Change 2021: The Physical Science Basis (Report, 2021), Summary for Policymakers, 5 <https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf>.
[2] Ibid, 17.
[3] Bureau of Meteorology and CSIRO, State of the Climate 2020 (Report, 2020), 2.
[4] Paris Agreement, opened for signature 12 December 2015 (entered into force 4 November 2016).
[5] Ibid, art 2(1)(a).
[6] Ibid, art 4(1).
[7] See Victoria State Government, Victoria’s Climate Change Strategy (2021) <https://www.climatechange.vic.gov.au/victorias-climate-change-strategy>; Government of SA, South Australian Government Climate Change Action Plan 2021–2025 (2020) <https://www.environment.sa.gov.au/topics/climate-change/climate-change-action-plan-2021-2025>; NSW Office of Environment and Heritage, NSW Climate Change Policy Framework (2016) <https://www.environment.nsw.gov.au/research-and-publications/publications-search/nsw-climate-change-policy-framework>.
[8] N Gurran, Australian Urban Land Use Planning: Principles, Systems and Practice, 2nd ed, Sydney University Press, 2011, 105.
[9] See City of Mitcham v Freckmann & Ors (1999) SASC 234 (per Debelle J).
[10] Planning Institute of Australia (PIA), ‘Accelerated global warming constitutes a climate emergency’ (Media release, 5 February 2020) <https://www.planning.org.au/news-archive/2019-2020-media-releases/accelerated-global-warming-constitutes-a-climate-emergency-pia>.
[11] J Brockhoff, ‘The planning system needs to get “climate conscious”, fast’, The Fifth Estate (17 March 2021) <https://thefifthestate.com.au/urbanism/climate-change-news/the-planning-system-needs-to-get-climate-conscious-fast/>.
[12] The ACT has a dual planning system involving both the Commonwealth and ACT Governments.
[13] See K Ruming and N Gurran, ‘Australian planning system reform’, Australian Planner, Vol. 51, No. 2, 2014, 102–7.
[14] SA’s Expert Panel on Planning Reform, The Planning System We Want (Report, 2014) <https://plan.sa.gov.au/__data/assets/pdf_file/0019/360352/Expert_Panel_-_The_Planning_System_We_Want.pdf>.
[15] Planning, Development and Infrastructure Act 2016 (SA) (PDI Act).
[16] Relevant authorities comprise of assessment panels, assessment managers and accredited professionals. In some instances, the Minister is the relevant authority.
[17] PDI Act, above note 17, s102.
[18] Ibid, s104.
[19] Ibid, s106.
[20] Ibid, s107.
[21] Ibid, Part 7, Division 2, Subdivision 4. These provisions include assessment of a class of projects defined as ‘major projects’ under the former Development Act 1993 (SA).
[23] Ibid, s12(2)(g).
[25] Ibid, s14(e)(ii).
[26] The term ‘ecological sustainability’ is not defined in the PDI Act. Compare this with s10(1)(a) of the Environment Protection Act 1992 (SA) and s3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
[27] PDI Act, above note 17, s58(2).
[28] Ibid, s58(4).
[29] See ibid, s115(5) regarding the EIS Ministerial approval process, and s163(5) regarding infrastructure delivery schemes.
[30] The term ‘principle’ is used here in the narrow sense as specified in the various SPPs – principles for statutory instruments. The PDI Act does not otherwise define the term.
[31] PDI Act, above note 17, s62. The other four issues for which an SPP must be prepared are design quality (s59), integrated planning (s60), adaptive re-use (s61) and biodiversity (s62A).
[32] SA State Planning Commission, State Planning Policies for South Australia (Policy, May 2019) 39.
[33] PDI Act, above note 17, s66(3)(f).
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2021/69.html