The Sydney Morning Herald has reported (‘Minister scraps climate risk plan’ Herald AM News, 22 March 2022) that:

NSW Planning Minister Anthony Roberts has scrapped a requirement to consider the risks of floods and fires before building new homes only two weeks after it came into effect. Last week – while the state was still recovering from deadly floods – Mr Roberts revoked a ministerial directive by his predecessor Robert Stokes outlining nine principles for sustainable development, including managing the risks of climate change. 

The president of the NSW chapter of the Australian Institute of Architects, Laura Cockburn, said the move is a “short-sighted decision that could have enduring negative impacts”. But a spokesperson for Mr Roberts said the minister had been “given a clear set of priorities to deliver a pipeline of new housing supply and act on housing affordability” by Premier Dominic Perrottet. The government is also expected to scrap or substantially change the new Design and Place State Environmental Planning Policy, which emphasises sustainability, quality and liveability.

According to Kirstie Richards, Luke Salem and Larissa Hauser (‘”Nine Commandments” For The NSW Planning System: Planning Minister Announces Further Planning Reforms’ K&L Gates, (7 December, 2021; emphasis added):

The principles [for sustainable development] seek to achieve the following outcomes across nine policy focus areas:

1. Planning systems: A strategic and inclusive planning system for the community and the environment

2. Design and place: Delivering well-designed places that enhance quality of life, the environment and the economy

3. Biodiversity and conservation: Preserving, conserving and managing NSW’s natural environment and heritage

4. Resilience and hazards: Managing risks and building resilience in the face of hazards

5. Transport and infrastructure: Providing well-designed and located transport and infrastructure integrated with land use

6. Housing: Delivering a sufficient supply of safe, diverse and affordable housing

7. Industry and employment: Growing a competitive and resilient economy that is adaptive, innovative and delivers jobs

8. Resources and energy: Promoting the sustainable use of NSW’s resources and transitioning to renewable energy

9. Primary production: Protecting and supporting agricultural lands and opportunities for primary production

In an editorial (‘NSW puts property developer profits before climate action’, Sydney Morning Herald, April 6, 2022) the Herald says:

Building more houses is an important goal and it is true that some planning changes will come at a small cost but pretending climate change is not happening is not the way to solve those problems. Mr Roberts’ wilful ignorance suits developers who take their cash and move on to the next project but it is the poor residents who will discover five, 10 or 15 years from now, like those in Lismore, that their dream homes are not liveable.

In Western Australia (Sarah Brookes, ‘WA government denies fire boss power to veto ‘undefendable’ property developments’ Sydney Morning Herald, 1 April 2022) says that a:

… group fighting a controversial property development in the Perth Hills are disappointed the State Government has ignored an independent recommendation to give the DFES Commissioner the power to veto new subdivisions that would be undefendable during a major blaze.

The recommendation was one of 13 made public this week following a State government commissioned independent review into the 2021 Wooroloo bushfire that razed 86 homes and burnt through 10,000 hectares…

Save Perth Hills chair Jeremy Hurst said allowing the DFES Commissioner the power to veto residential developments in high-risk regions made sense.

“We cannot permit land developers coming into Perth’s volatile hills seeing only development dollars and not human dangers,” he said.

In another story Peter Hannam (‘Property developers fight NSW bid to make houses more energy-efficient and climate-resilient’ The Guardian, 28 March 2022)) discusses the NSW ‘draft Design and Place state environmental planning policy’.  He says:

According to the government’s commissioned cost-benefit analysis, the policy would add costs of $2.3bn over 30 years but be outweighed by almost $3.3bn in benefits. Despite that assessment, the industry has objected.

If one looks simply at cost/benefit the benefits clearly outweigh the costs, but the problem is often that the person who pays the costs is not necessarily the person who benefits.  For example requiring ‘apartment blocks to be built with electric vehicle charging stations’ will be great for those with electric vehicles but that may not be any of the current purchasers who may want to focus on their immediate budget and so not want to pay for what is an abstract future benefit even if the economics says its good value for money.

Discussion

Review after review into natural hazards shows that effective land use planning is a key to reducing exposure and vulnerability to hazards. At the next AFAC conference there will no doubt be papers that raise the question ‘why are people allowed to build in flood and fire prone areas?’ The answer appears to be a commitment to “a pipeline of new housing supply and act[ion] on housing affordability”. 

Delivering more housing, affordable housing and encouraging people to return is both a short-term benefit to government as well as a legitimate policy goal. People need to have houses and we can see with current house prices we need affordable housing stock. Simple economics says that if there is an increase in supply there should be a decrease in price (though I suspect the housing market is not governed by simple economics).  Governments have to balance these various competing demands – people want to live where they live, they cannot afford or don’t want to relocate, there are benefits in living where they do that they want to balance against the economics, we live in a society that values free choice and private property rights so if someone owns a block of land there are difficulties telling them what they can and cannot do (it’s clearly not impossible, we have land use planning and development laws, but it is problematic).  Balancing those issues against the risk of flood or fire is a matter for government, policy and politics (see M. Eburn and B. Jackman, ‘Mainstreaming fire and emergency management into law’ (2011) 28 Environmental and Planning Law Journal 59).

Can a homeowner sue the developer or council if and when their home floods or burns? Generally no. There is a separation of powers between the judicial arm of government and the executive and legislative arm of governments. The judiciary are not there to make judgments we wish the other branches of government would make.  As Beech-Jones J said in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [7] ‘… [I]t is not the Court’s function to determine the merits of the exercise of the power by the Minister … much less for the Court to choose between plausible responses to the risks’  (see Requiring COVID vaccines for emergency workers (April 1, 2022). Beech-Jones J was talking about the risk of COVID but the principle is the same. 

Because there are many plausible responses to the risks posed by both climate change and the demand for housing it is left to government to determine the response. Whether that is in favour of more development, or less, is a political choice. Governments cannot be sued for political choices as all choices have some winners and some losers. Governments are held to account at the ballot box.  Accordingly, decisions by a minister to scrap ‘a requirement to consider the risks of floods and fires before building new homes’ or to reject ‘an independent recommendation to give the DFES Commissioner the power to veto new subdivisions that would be undefendable during a major blaze’ is not something a court can review. Further a government does not owe a duty of care to particular individuals to make its policy choices as they are not making decisions for individuals and the class of people to be considered would be the entire electorate. A duty could not be owed to everyone affected one way or the other by a policy choice (see for example Barclay Oysters v Ryan [2002] HCA 54, [14] ‘the reasonableness of legislative or quasi-legislative activity is generally non-justiciable’; Minister for the Environment v Sharma [2022] FCAFC 35 at [7] ‘matters that are core policy questions [are] unsuitable in their nature and character for judicial determination…’).

Conclusion

Because there are many plausible responses to risk, governments are elected to navigate the path through those plausible responses. The answer to ‘why we let people build in hazard prone areas?’ is because governments choose to allow it.  Recent decisions by both the NSW and WA governments suggest, notwithstanding the scientific warning and lived experience of floods and fires, that their response is in favour of “… a pipeline of new housing supply…”

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.