Local government
10.1
The actions undertaken by local governments in response to the risks
climate change present to buildings and infrastructure were of great interest
to the committee. As the Northern Alliance for Greenhouse Action (NAGA)[1] observed:
Local governments are on the frontline when dealing with the
risks and impacts of climate change. The impacts of climate change are already
taking their toll on local governments ability to deliver critical services to
their community.[2]
10.2
NAGA argued that there is a 'strong community expectation that
local governments are preparing for climate change'. Effective climate
change adaptation by local governments could benefit their residents by
facilitating improved health and wellbeing outcomes, lower energy bills and
reductions in local government expenditure (such as lower maintenance costs).
In the long‑term, investments by local governments in climate change
adaptation now could avoid greater expenditure in future.[3] As outlined in previous chapters, state governments have also required local
governments to respond to climate change in matters such as land-use planning.
However, local governments also face the risk of their planning decisions being
subject to legal challenges, issues regarding rising insurance premiums, and
limited resources.
Overview of strategies being pursued by local governments
10.3
An example of a local government's climate change strategy is the City
of Melbourne's Climate Change Adaptation Strategy (2009), which the City of
Melbourne described as 'the first of its kind in Australia'. The Strategy was
updated in 2017. It supports the City's broader aim of zero net emissions by
2020.[4]
10.4
The Strategy focuses on addressing risks associated with an insufficient
water supply; inundation from flooding, storm surge, sea level rise and flash
flooding; heatwave impacts; and storm events.[5] Since the 2009 edition of the strategy was released, the City has pursued
numerous projects to address the identified key risks. These projects include
stormwater harvesting, increasing green space and canopy cover, and enhanced
biodiversity. The City has spent in excess of $50 million over five years on
these projects.[6]
10.5
The City of Melbourne is also using international experience to inform
its strategies and decisions. Mr Gavin Ashley from City of Melbourne advised
that Melbourne is a member of the C40 Cities Climate Leadership Group, which is
a global network of over 90 major cities focused on addressing climate change
issues. Mr Ashley explained that membership of this group 'allows us to make
city-to-city connections quite well'. Mr Ashley explained that this
collaboration works:
...because it's city based, and, as large international cities,
we're facing similar challenges. In effect that collaboration, for us at least,
has jumped beyond the national level in search of answers.[7]
10.6
Despite providing an overarching strategy relating to climate change,
the 2017 edition of the strategy illustrates the scale of the challenge local
governments face in incorporating climate change considerations into their
planning and decision-making practices. The various strategies and actions the
City of Melbourne is involved in regarding key climate risks are listed at Box 10.1.
Box 10.1: City of
Melbourne strategies and actions relevant to climate risks |
-
Resilient Melbourne Strategy
-
Melbourne Strategic Statement
-
City of Melbourne Design
Standards
-
Green Infrastructure Framework
-
Zero Net Emissions Strategy
-
Elizabeth Street Catchment
Integrated Water Cycle Management Plan
-
Beyond the Safe City Strategy
-
Emergency Management Planning
(collaborative effort between government agencies)
-
Inner Melbourne Climate
Adaptation Network
|
-
Planning Policy 22.19: Energy,
water and waste
-
Planning Policy 22.23:
Stormwater management
-
Total Watermark: City as a
Catchment
-
Nature in the City Strategy
-
Building Prosperity Together
-
CitySwitch and 1200 Buildings
-
Melbourne for all People Strategy
-
Assess Management Strategy
-
Heatwave and Homelessness Action
Plan
-
City of Melbourne Heatwave
Response Plan.
|
Source: City of Melbourne, Climate
Change Adaptation Strategy Refresh, 2017, p. 19. |
10.7
Other examples of local government strategies include:
- statements published by the City of Darwin regarding its approach
to managing climate risk;[8] and
- the climate change risk assessment and action plan developed by
the Eastern Alliance for Greenhouse Action, a group of seven councils located
to the east of Melbourne.[9]
10.8
Overall, the Australian Local Government Association (ALGA) provided the
following insights into the changing approach being taken by local governments
to climate risks:
In recent years, the focus of local government has turned
toward boosting the capacity of the sector to support communities deal with the
impacts of climate change that cannot be avoided.
These include threats to valuable coastal infrastructure,
such as roads, parks, harbours as well as residential and commercial land, due
to the risk of increasing sea-levels and storm-surges from more powerful
weather systems. As the level of government closest to communities and
responsible for most local infrastructure, this is core business and
fundamental due diligence.[10]
10.9
However, the committee received anecdotal evidence indicating that a
significant number of local governments are not implementing strategies to
address climate change risks. Mr Paul Grech from Floodplain Management
Australia (FMA) advised that work he was involved in to audit planning policies
and planning controls revealed that only around 20 per cent of the approximately
40 coastal councils in New South Wales had climate change-related
controls. Mr Grech added that it was also 'very difficult' to identify and
understand the councils' policies.[11]
Challenges local governments face responding to climate change
10.10
This section discusses some of the key challenges local governments
encounter in planning for, and responding to, the implications of climate
change for houses, other buildings and infrastructure.
Resources available to local
governments
10.11
The Local Government Association of Queensland (LGAQ) argued that the
resources available to local governments to build and maintain infrastructure
are inadequate. A particular concern is that vertical fiscal imbalance results
in local governments encountering the greatest relative disparity between
public sector revenue and non-financial asset responsibilities.[12] Similarly, the Australian Coastal Councils Association (ACCA) highlighted the apparent
mismatch between the amount of local government infrastructure exposed to
climate change risks, and the resources that local government have to carry out
effective adaptation to manage these risks. The ACCA commented:
Responsibility for planning and managing coastal assets to
minimise climate risks to a major portion of Australia's population and assets
is largely left to local councils. The local government sector is the level of
government with least resources available to undertake such an enormous task,
both in terms of funding and a shortage of appropriate professional resources.[13]
10.12
Local governments have limited revenue-raising ability. The LGAQ explained
that, under state legislation, the sources of revenue available to local
governments in Queensland are 'largely limited to what the local community can
bear in terms of rates and fees for services'.[14] Ms Emma Herd from the Investor Group on Climate Change (IGCC) noted that many
local governments 'do not have the ability to raise rates because state
governments have capped their rate raising ability'. Ms Herd commented:
So even if they have identified the potential for measures
that they can take to increase the resilience of their area, they don't have
the ability to raise the capital because they are not allowed to raise rates so
then it becomes a state issue, which was what we were saying before about the
levels of responsibility.[15]
10.13
During the committee's public hearing in Melbourne, representatives of
multiple Victorian local governments provided examples quantifying the burden
of climate change-related infrastructure projects for their councils. Mr William
Millard from Hobsons Bay City Council advised that, in 2017, $1.5 million out
of the council's total annual capital works budget of $35 million was spent on
revetment works to defend against storm surge and extreme weather events.[16]
10.14
Mr Millard noted that 'there is a lot more that needs to be done, of
course'. He added:
We've just invested in some research on our drainage elements
and the current status of those assets. We spent $1 million just on the review
of all the drains so that we have an understanding of where those hot spots
are, if you like, and where we need to invest. If you take a trip along
Pier Street, Altona, along the foreshore, you'll see a number of quite
significant drainage works that we've done to cater for better release of
floodwaters from on land. It's an ongoing and significant battle in a
resourcing sense.[17]
10.15
Councillor Richard Ellis from East Gippsland Shire Council noted that
the cost of repairing or upgrading a seawall that protects a town of around
7000 people in Gippsland, Victoria, ranges from $2500 to $4000 per cubic metre.
Accordingly, Councillor Ellis advised that repairing two seawalls of around 30
metres and 85 metres will cost the local government 'hundreds of thousands
of dollars'.[18]
10.16
Mr Brett Walters from the City of Port Phillip informed the committee
that works to change drainage infrastructure to relieve flooding risks in four
local government jurisdictions would cost $500 million.[19]
10.17
Councils' limited financial resources have flow-on consequences for the
number of staff members who can be allocated to climate change-related issues. Mr Andrew
Petersen from Sustainable Business Australia noted that often councils have one
climate resilience officer at most in their planning department, and those
officers can still have other responsibilities.[20] It was also noted that local governments in rural areas are at a disadvantage when
considering allocating resources for sustainability officers, compared to local
governments that serve more densely populated urban areas.[21]
10.18
The LGAQ reasoned that the current financial arrangements impede the
timely adaptation of infrastructure to climate change. The LGAQ argued that
addressing this would require the Australian Government to recognise that the
tax revenue share available to local governments needs to increase relative to
the value of assets for which they are responsible.[22]
Comments on allocation of
responsibilities
10.19
Councils also highlighted how the unclear division of responsibilities
between state and local governments has implications for climate change
adaptation. For example, the South East Councils Climate Change Alliance
(SECCCA) advised that, in Victoria, it is not clearly defined where
responsibility lies for the protection of coastal assets.[23]
10.20
In arguing for a national approach to climate change adaptation (see Chapter 9),
Ms Emma Herd from the IGCC commented that local governments have used
scientific research and tools to undertake planning and risk assessment work,
however, after identifying the risks it often becomes evident that they
'don't have the capacity to then take the next step and respond'. Ms Herd
stated:
So I think part of that national framework is that we need to
bring it all together and to have that clear line of sight of who does which
part of the puzzle and then which agency or which private industry sector then
picks up the next part and has the responsibility for the next part of it in a
much more integrated way.[24]
10.21
Local governments also argued that they need to be involved in policy
development in order to assist the policies to achieve their objectives and so that
their obligations are clearly understood. The LGAQ argued that if the
Australian Government decides to develop climate change adaptation legislation
and policies, extensive consultation with local governments should be
undertaken 'to ensure obligations on local governments are reasonable and
implementable'.[25]
Concerns about exposure to liability
10.22
Local governments expressed concerns about the risk of legal liability they
might face due to climate change. The LGAQ explained that local governments
'carry exposure to increased risk of legal liability should they fail to
take reasonable steps to consider and mitigate the effects of climate change on
their communities'.[26]
10.23
Dr Karl Mallon from Climate Risk noted that local governments could face
claims for compensation based on 'injurious affection' based on changes to
planning schemes. For example, Dr Mallon commented that:
...if the council puts out a report that shows the flood plain
with climate change and you are on the wrong side of that line you can sue. You
can say that your property has gone down in value and you have to pay me the
difference.[27]
10.24
Dr Mallon added that a potential consequence of this is that councils
could undertake work on climate change risks but refuse to release their
findings to utilities to assist them with planning. Dr Mallon suggested that
providing councils with clear legal protection to share information with
utilities could help to protect future infrastructure and property buyers.[28]
10.25
Mr Alan Stokes from the ACCA advised that a concern shared by members of
his organisation is 'the legal position faced by councils when they're addressing
development applications for a building or a house that they realise might be
affected and vulnerable to inundation in the future'. Mr Stokes explained
that councils are 'caught in a dilemma' because:
...if they refuse the development application then the chances
are it'll be taken straight to the Land and Environment Court or the
Administrative Appeals Tribunal; if they approve it, and the construction goes
ahead, then there's a potential liability down the track if it is inundated.
So, in a sense, they're damned if they do and they're damned if they don't.[29]
10.26
Evidence given by Mr Brett Walters from the City of Port Phillip supported
this observation. Mr Walters commented:
If local governments are required to address climate risk in
that way, there's a nexus with the planning scheme. Council makes decisions on
allowing a development to occur based on the requirements of the planning
scheme and, if the planning scheme is silent on the ability to refuse a
building application because there's a known inherent climate risk, council
doesn't have the ability to rule against it because it's not in the planning
scheme. It's a catch 22.[30]
10.27
Mr Stokes explained that section 733 of the Local Government Act 1993 (NSW) can indemnify local governments that make planning decisions based on
good faith relating to flood liable land, land subject to bushfire risks and
land in the coastal zone. Mr Stokes advised that similar provisions do not
exist in equivalent legislation in other state and territory jurisdictions.[31] Similarly, the Housing Industry Association (HIA) commented that the Australian
and state governments could legislate to 'give local government comfort'
about planning decisions regarding the construction of new buildings when
climate change is a consideration.[32]
10.28
Representatives of the Law Institute of Victoria were questioned by the
committee about the liability of government authorities to climate change issues.
In response, they advised that the issue is 'complex'. Dr Leonie Kelleher
explained:
There is a difference between the corporation and the
government entity in law...There's a principle of reasonableness: if one is suing
a government entity, has that government entity acted reasonably? If one is
suing for negligence, for example, was it a foreseeable risk, and did the
authority act reasonably? There's a recent body of law...which is that, if
there's a financial constraint on a government authority that applies across
all government authorities, the authority may not have acted unreasonably in
not doing something about it. Here in Australia, with the concerns of that body
of precedent law, it would be extremely important in any new legislation to, if
you like, kill that and not allow that defence to apply. Where you've got your
company directors and your corporations, that issue of whether a reasonable
authority constrained by financial constraints is able to do X, Y and Z does
not apply, or may not apply, in that situation. But it's an increasingly
problematic issue when one's seeking to take action against an authority.[33]
10.29
Dr Kelleher emphasised that when considering legal implications for
local government, there is 'major distinction between a duty—the authority must
do X or Y—and a power, where it may do A, B or C, depending on certain
discretions'. Dr Kelleher suggested that these issues should be considered
as part of comprehensive reform of Australia's environmental laws, noting that
it is open to governments and parliaments to reduce complexity by creating
'crystal clear' legislation and policy settings.[34]
10.30
From the perspective of Queensland local governments, the LGAQ called
for indemnity from liability under the Local Government Act 2009 (Qld).[35] The committee was also advised that a review of local government
legislation in Victoria is considering whether councils should be specifically
required to have regard to mitigation and planning for climate risk.[36]
10.31
Finally, the link between legal obligations and resourcing was also
noted. It was suggested that if a state government imposes a statutory
obligation on local governments to plan for and act on climate risk, the state government
then needs to ensure that local governments are provided with adequate 'resourcing
and capacity' to comply with this obligation.[37]
Other factors that might deter
action
10.32
Based on his experience dealing with local governments, Mr Paul Grech
from the FMA advised the committee that councils are generally hesitant to
develop climate change policies for two key reasons. The first is to avoid
being the 'bearer of bad news' to property owners in their jurisdiction. The
second reason is due to concerns about competition between different council
regions—that is, councils are disinclined to take actions that neighbouring
councils are not taking if doing so could affect land values or make their
region less competitive for new development. To overcome this, Mr Grech
reasoned that mandatory requirements imposed by state governments are needed so
that all councils are required to identify risks, develop strategies and implement
actions to improve resilience to climate change.[38]
10.33
Likewise, Professor Lesley Hughes of the Climate Council of Australia
commented that, without clear signals from higher levels of government,
neighbouring local governments facing similar risks can respond in
significantly different ways, often simply because of 'the views of the
particular councillors at the time'.[39]
10.34
It was also noted that constituents of local governments might not
support actions being taken by their council. Ms Kristin Brookfield from the HIA
provided the following example illustrating this potential outcome:
Lake Macquarie City Council in New South Wales invested a
significant amount of time and money to map their area—obviously this week
they've been subject to flooding—and then they went down the path of developing
a new construction code for properties which they deemed would be affected.
They implemented that for a few months and, in the end, their own constituents
came back to them and said: 'No, we think you've overstepped. We think you're
trying to make us do too much, too soon.' So they went back some time later and
changed that code. I'm not saying whether that's right or wrong, but that's the
response that was given by those constituents to that council.[40]
Conclusion
10.35
This report has presented an overview of the various challenges and
potential policy options relating to the current and future impacts of climate
change on housing, buildings and infrastructure. The committee considers that
this report, and the detailed evidence taken during this inquiry, will be a
valuable resource that assists senators, policymakers and others to understand
the issues at hand.
10.36
As noted in Chapter 1, members of the committee have expressed their own
views in additional comments attached to this report. The committee thanks all
the individuals and organisations that participated in this inquiry.
Senator Janet Rice
Chair
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