Courts' views on climate change inundation risks for developments: Australian perspectives and considerations for valuers

Abstract

Purpose: This study aims to provide a development of the courts’ views of climate change risk in planning matters as related to inundation and suggest that valuers and others involved need to be aware of the implications these views have on property matters and valuation processes and reporting. Design/methodology/approach: This study engages in a legal doctrinal analysis of primary law sources, being Australian case law. It analyses decisions from Queensland, New South Wales and Victorian courts and tribunals, to establish their views of climate change risk for coastal area developments, who bears the risk and responsibility and if risk is shared. Findings: The analysis reflects that developers bear the onus of proving their proposal meets relevant planning requirements including management and mitigation of climate change risks. However, the risk of developing in “at risk” areas is a shared burden, as local government authorities remain responsible for appropriately assessing applications against those requirements. Research limitations/implications: This study had several limitations, these included: only matters with a final determination were able to be reviewed and analysed; there is no one Australia-wide planning regime; state laws and policies are different and changing; and disputes are heard in different courts or tribunals, which can impact the weight and importance given to issues and the consistency of approaches. Practical implications: This research informs valuers of climate change risk issues related to the inundation of new, and re-, developments, and the importance of court decisions as an additional information consideration to inform their valuations. Originality/value: This paper is significant as it provides an understanding of the Australian courts’ current views on climate change risk, and by extension, the implications and considerations for valuations.