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West Gippsland Catchment Management Authority v East Gippsland Shire Council.

Country/Territory
Australia
Type of court
Others
Date
Aug 4, 2010
Source
UNEP, InforMEA
Court name
Victorian Civil and Administrative Tribunal
Seat of court
Victoria
Judge
Gibson
Potts.
Reference number
SC [2010] VCAT 1334
Language
English
Subject
Land & soil, Wild species & ecosystems, Environment gen., Sea
Keyword
Land-use planning Coastal zone management Climate change Flood
Abstract
In this proceeding, the West Gippsland Catchment Management Authority (WGCMA) applied to the Tribunal for a review of the East Gippsland Shire Council’s (the Council) decision to grant a permit for use and development of a dwelling and removal of vegetation. Even thought the party applying for the permit failed to attend the hearing, the Tribunal chose to proceed with the hearing. The case concerned an application for a dwelling on an isolated peninsula in the Gippsland Lakes in which a permit was required to remove native vegetation. The land in question was mostly covered by a Land Subject to Inundation Overlay and was only accessible (legally) by water. The Council determined to grant the permit, despite the recommendation of the council officer to refuse a permit because of access and flooding issues. The WGCMA lodged an application for review because of the access and flood issues. However, its opposition to the permit was withdrawn subject to additional conditions being included in the grant of the permit. These conditions included access between the jetty and the dwelling, and requirements for a section 173 agreement and a flood response plan. Even though the council and the permit applicant consented to the Conditions the Tribunal nonetheless continued with the proceedings given its 'obligation to be satisfied that any planning permit it grants, even by way of consent, is lawful'. The Tribunal held that the permit was not lawful as it did not satisfy the requirements regarding emergency vehicle access. With respect to climate change risks, it held that given the current need to plan for and manage the potential impacts of climate change under State Planning Policy Framework’s clauses 15.02 and 15.08 a Coastal Hazard Vulnerability Assessment would be necessary prior to granting the permit. The Tribunal found that an Assessment was necessary for this site in order to properly assess the impacts of sea level rise due to climate change. A dwelling on the site would be at risk in times of flood. This would create a risk for both occupants and emergency service personnel and that risk is likely in increase in the future when the impacts of climate change manifest themselves by way of sea level rise. Accordingly, the Tribunal set aside the decision of the Council.
Full text
COU-156703.pdf