Irrespective of action we can take to improve our approach to disaster mitigation, there is a growing body of case law indicating that courts are willing to take the environmental impacts of climate change into account in their decision making around planning and other issues.

As Jacqueline Peel, Associate Professor at the Melbourne Law School, has explained: “Environmental groups have long used litigation to address environmental problems. Climate change is no different.”  

Peel points to an increasing number of cases are coming before Victorian Civil and Administrative Tribunal – or VCAT - raising issues of adaptation to future climate change along the Victorian coast following the Gippsland Coastal Board case. 

The Victorian Government subsequently developed policies on planning for coastal climate change and sea level rise. 

Another area of the law where climate change is being considered by the courts is the area of wind farm applications. 

In these cases the effects of climate change are being used as an argument to ensure something happens rather than to prevent something happening. 

This is in contrast to wind farm applications being regularly challenged by local community groups who oppose the development on the grounds of amenity and health concerns. 

One example is the NSW Land and Environment Courts decision in Taralga Landscape Guardians Inc v Minister for Planning (2007). In that case the judge allowed the development to proceed because of the broader public good associated with “reducing the cumulative and long-term effects caused by anthropogenic climate change”. 

Water extraction rights are also being legally challenged on grounds related to the possible effect of climate change. In Paul v Goulburn Murray Water Corporation & Ors, heard by the VCAT, a landowner challenged the right of two licensees who were permitted to extract groundwater on the applicant’s properties. 

The Tribunal heard evidence about the effect that climate change may have on the hydrology of the area, in particular the Ovens River and whether this uncertainly should lead to the application of the precautionary principle. 

In the end Member Potts determined that the allocations were sustainable under the range of climate change scenarios presented by the experts.

These cases have focussed on what Peel has termed as ‘five common features’ of climate change law in Australia.

They are: First, establishing a causal link between certain actions (e.g. mining) and the production of substantial greenhouse gas emissions. 

 
For example, in the Anzvil Hill Case, Justice Pain of the NSW Land and Environment Court considered that “there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emission of GHG which contribute to climate change/global warming.”

Second, the indirect and cumulative impacts of climate change.

Third, the role of environmental sustainable development principles.

Fourth, the scientific proof of climate change.

And finally, a continuing role for the courts.

Clearly there is a case for Governments at all levels to acknowledge these developments with a view to taking a nationally consistent approach to these issues.

This is an edited extract of the speech given by the Attorney General at the Mayo Lecture, held at James Cook University in Townsville on 6 October 2011.