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Reducing the risk of a legal challenge
Any decisions made by coastal managers that involve climate change run the risk of a legal challenge.
At a glance
Estimates of future climate change have inherent uncertainties—such as timing and scale of impacts. This leaves room for potential litigators to mount a legal challenge.
The risk of a legal challenge can be reduced by taking a legal reasoning approach and addressing three key questions. Do you have the legal power to make the decision? Have you taken account of the best possible knowledge that relates to the decision, including the uncertainties (in this case, around climate change and its impacts)? Is there any uncertainty in the law?
Legal risk can be reduced by making sure the decision is within the decision-maker’s power, that the decision is based on the best available information and that the decision-maker’s legal liability for the decision is understood. If there is high uncertainty under the law then there is a high risk that the decision could attract a legal challenge or result in legal liability. The organisation will need to judge whether the identified risk is acceptable to the organisation.
Adapting to climate change means making decisions that take into account future climate change scenarios. Scenarios are plausible futures but are not forecasts – they may or may not happen. In making decisions in the coastal zone, this uncertainty can give rise to a legal risk. Many decision makers want to know how to minimise the risk of legal challenges and future legal liability. While it is impossible to have zero risk when dealing with climate change, by using principles of ‘legal reasoning’ legal risk can be minimised to an acceptable level. Each organisation or decision-maker will have to decide what is an acceptable risk to them.
When might climate change-related legal challenges arise?
At present ‘climate change’ in itself is rarely an argument put before the courts in planning cases. However, there is increasing recognition by all levels of government that decision-makers should take account of climate change even where it is not specifically mentioned in legislation.
The most common challenges in the court are cases reviewed on merit or subject to judicial review. The basis for a challenge to a decision will depend on the relevant state legislation. In merits review new evidence may be considered and a new decision can be made. While in a judicial review the court considers whether a decision-maker has used current legal reasoning and followed current procedures. These types of challenges are most likely when a council rejects a development application or imposes conditions on a development in response to climate change projections.
Challenges or liability can also exist under tort law. The basic premise of tort law is an obligation not to cause someone else to suffer loss or harm. For example, many councils fear that if a property is damaged by a climate change-related hazard they may be sued for approving the development. They fear they will be considered negligent for approving the development and, if the legal challenge is successful, the council might have to pay damages (e.g. compensation).
For a legal challenge of negligence (under tort law) to be successful, the plaintiff must demonstrate that a duty of care has been breached, and this must have caused harm. A range of possible cases may give rise to a negligence claim, for example:
- negligence in the course of granting a development approval
- a planning scheme that fails to incorporate restrictions on development to reduce risks
- negligence in the provision of information
- negligence in failing to construct or allow the construction of defence works (e.g. seawall).
Acting beyond legal powers ‘maliciously, knowingly or with reckless disregard’ may give rise to damages for misfeasance in public office. This is also a claim under tort law.
Legal challenges can be mounted by those directly affected or by a third party. The ability of a third party to mount a legal challenge differs across individual states and territories.
In some circumstances, decision makers may have immunity from legal action. Usually these protections arise from legislation. Typically these protections are from civil liability, but not from criminal liability.
There are already laws concerning the payment of compensation when land is compulsorily acquired by government. However, it is unclear if there is a role for compensation when development controls or restrictions are placed on landholders to reduce climate change risks. Compensation may depend on the nature of the restrictions.
Identifying and reducing your legal risk in making decisions
When making decisions that take account of climate change, the best way to reduce the potential for legal risk can be identified through good legal reasoning and decision-making. There are three questions that should be considered.
- Do you have the legal power to make the decision?
- Have you taken account of the best possible knowledge that relates to the decision, including the uncertainties (in this case, around climate change and its impacts)?
- Is there any uncertainty in the law?
The power to make decisions
A decision maker must ensure that a decision is within their power. Most powers come from legislation (e.g. the relevant Local Government Act) that imposes a range of duties on a decision-maker. Further guidance is provided through policies (e.g. State Planning Policies) to better enable legislation to be implemented. They are important for decision-makers to consider. Australia is a common law (case law) country and a previous decision made by a court is likely to be persuasive in any subsequent court case.
Individual states and territories in Australia have their own legal and policy approaches to addressing climate change in the coastal zone. The full range of legislation and policy is outlined in Jurisdictional differences). This means that the obligations on individual decision makers will be different depending on their jurisdiction.
Understanding the source of power will help decision makers determine the limits on their power to make a decision.
Taking account of the best possible knowledge
Decisions need to take into account the best available information. Consider a council looking at upgrading its stormwater system to prepare for projected increased rainfall due to climate change. Without action, the increasing flows could increase the risk of temporary flooding. The decision to act or not relies on climate projections and an engineering assessment of the existing system. Both of these pieces of information include a level of uncertainty. The council needs to decide if it has enough information to make its decision.
The council might seek further advice to decide whether more localised projection information could improve certainty, whether a more detailed assessment of the stormwater system could be made, or whether existing assessments are the most accurate information available. Some information may be extremely expensive to obtain and the council could argue that it would be unreasonable to expect it to fund work to obtain more accurate information.
Ensuring sufficient legal certainty
The decision-makers must establish if they are in fact legally liable. In the example above, the question is whether the council is the party responsible for maintaining the stormwater system and for preventing loss and damage caused by failure of the system. The Courts have recognised that public authorities must be treated differently (from the common person) in considering their duty of care, as they are required to uphold the interests of society as a whole. However it is unclear how this should be interpreted or implemented. The state governments of Queensland, New South Wales, Victoria, Western Australia and Tasmania have attempted to limit the liability of public authorities under statute law.
Analysis and decision
Decisions should be reasonable and based on the best available information. For development decisions, climate change should be taken into account and, at the least, development minimised in high-risk areas. For planning decisions, the reason for decisions and the criteria for decision-making should be publicly available and transparent. Community consultation about planning schemes and policy will help improve transparency and acceptance.
After considering these three legal aspects—i.e. if there is no power to act, or considerable uncertainty in knowledge and/or legality—any decision made or not made is likely to present a high risk of being challenged. If a decision-maker has the power to act and comprehensive and accurate information and legal certainty, then making a decision using the available information is likely to carry acceptable risks.
Where there is factual or legal uncertainty, the decision-maker can either change the objective of the decision-making or increase certainty by obtaining further advice and information. The capacity to obtain further advice or information relies on resources that many councils may not have available. A court is likely to consider the available resourcing of the decision-making organisation when asked to consider a climate change risk–related decision. The court may also take into account the cost of the risk versus the cost of the remedy. For example, in negligence proceedings, a court may consider the principle of ‘proportionality’ and would balance the risk against the cost of taking measure to address it.
It is important to note that comments made here should not be construed as legal advice. Where questions arise legal advice should be sought to determine questions relevant to the local context.
Bell-James, J., Baker-Jones, M. and E. Barton, 2017: Legal Risk: A Guide to legal Decision Making in the Face of Climate CHange for Coastal Decision Makers. Information Manual 6. 2nd Edition. NCCARF, Gold Coast.
Baker and McKenzie, 2011: Local Council Risk of Liability in the Face of Climate Change – Resolving Uncertainties. ALGA, Canberra. Accessed 29 February 2016. [Available online at http://alga.asn.au/site/misc/alga/downloads/environment/ALGA%20Consolidated%20Report-v7B-1392955-SYDDMS%20-%20Final.pdf]
Bell, J., 2014: Climate Change and Coastal Development Law in Australia. Federation Press, Annandale.