Climate Change Liability

Local Governments' Legal Liability for Climate Change

Introduction

The international scientific community is largely in agreement concerning climate change, the only variable being the extent to which action taken now will have an effect on future climate change.  The weight of scientific opinion is that:

• Sea levels are rising, and will continue to rise;
• Rainfall will increase across northern Australia;
• Extreme rainfall events are likely to increase in intensity by the end of the century across most of Australia;
• There is a continuing projected increase in weather conducive to fire in southern and eastern Australia.

Climate change has the capacity to seriously impact local governments in numerous areas.  The legal system within Australia is such that the civil standard of proof is on the balance of probabilities.  Scepticism of the veracity of climate change is therefore irrelevant for our Court systems.  Further, the science is sufficiently precise that a failure to act now to factor in the effects of climate change will lead to local governments being exposed to liability in the future, in the event of foreseeable loss or damage occurring to parties with whom the Council deals, and for whom it ought to have had in its contemplation. 

Liability can arise in many contexts, and the more prominent examples are discussed in this article.

Negligence in Planning Decisions

The State Planning Policy (1) notes that the effects of climate change are projected to impact on the footprint, frequency and intensity of natural hazards.  It requires assessment managers to avoid or mitigate the effects of climate change, and to build resilience.  A risk management approach must be taken, in compliance with Australian Standard/New Zealand Standard ISO 31000:2009 Risk Management.   It also requires the assessment manager to take account of projected impacts of variable climate change in coastal areas. 

Case law confirms that local governments owe a duty to take reasonable steps to ensure that no foreseeable harm occurs from planning and development assessments they conduct. They must assess the merits of the development application against their Planning Scheme (and the State Planning Policy to the extent that is not identified in the Planning Scheme as appropriately reflected in the Planning Scheme), and other relevant state planning instruments. 

It is necessary to consider the impact of the development, both on the development area itself, and upon surrounding properties.  A common issue leading to liability relates to water, including generalised flooding, drainage and the effects of tidal storm surge.  Where accurate tools are not available to an assessment manager, the best way of assessing such impacts are to rely on expert evidence whether supplied by developers pursuant to an information request or development condition, or by obtaining its own expert evidence.  Such opinion cannot, however, be blindly accepted, and if there are inconsistencies between information in the local government's possession and the report, or there are visible flaws in the report, the local government will have a duty to resolve such issues.

Negligence - Drainage Management

As the party vested with control of parcels of land (either as owner or as trustee pursuant to the Land Act 1994 (Qld)) Councils have control over drainage and floodwater management issues.  This will give rise to a duty of care in relation to how that stormwater and drainage is managed, and will raise issues as to whether reasonable steps are available to improve such situations.  As with all allegations of negligence, what is a reasonable response to a risk will depend upon the probability of harm if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that creates the risk of harm.  It is certainly foreseeable that failure to construct drainage systems that are capable of dealing with projected increased water flows, could potentially lead to liability.

Control of Roads

With control of roads comes a responsibility to motorists and other road users who are using that road, to take reasonable care to prevent foreseeable risks of injury.  Areas which can be impacted by climate change include where a road is known to be cut by floodwaters or bushfire, and there is a risk of motorists suffering injury. Numerous claims in the context of failing to warn of flooded roads, or flood heights over those roads have been made against local governments in the past, and increased intensity of rainfall will likely lead to an increase in exposure for local governments.  Additionally, damage caused by events such as flood, bushfire and landslides also have the potential to expose local governments to liability.

Provision of Advice

It is common for local governments to provide information concerning land within their area, for example, searches on flood levels or the potential for landslip.  Any inaccuracies, or ambiguities in this advice (whether written or oral) can potentially lead to liability, often significantly later than the provision of the advice.

Conduct of Events

Where local governments are responsible for the organisation, or conduct, of events, numerous matters could potentially lead to liability.  From a climate change perspective, however, with increased temperatures becoming prevalent, there is a capacity for increased heat injuries to participants (and staff), and a failure to properly consider all risks, and take reasonable steps to address them, could lead to liability. 

Backburning

The projected increase in weather conducive to fire will increase the risk from back burning.  If fires started, or managed, by local governments get out of hand, there is potential for liability where people are injured, or adjacent properties, livestock, or other items are damaged.

Landslides from Council land

If there is a risk of a landslide emanating from land under a local government's control, then reasonable steps must be taken to protect property and life downhill of those areas.  Councils have been found liable in the Courts in the past, albeit in a development approval context, from landslides, and claims have been made against Queensland Councils concerning landslides emanating from areas within their control. 

Other claims

Although less common, a variety of other actions may be commenced against local governments, including breach of statutory duty, nuisance, judicial reviews and prosecutions (for example EPA breaches). Each has their own peculiarities, but climate change has the potential to impact, and increase, such claims.

Minimisation of Liability

There are a number of steps that local governments can take to minimise their potential liability. 

The first is to adopt, in relation to climate change, the recommendations of the Inter-governmental Panel on Climate Change ("IPCC") and the CSIRO. Reliance upon expert opinion and prevalent engineering standards, will go a long way to providing a good defence to claims for negligence. 

It is important that local governments regularly update their flood modelling and coastal tidal surge modelling, and that these models adequately reflect the current projections on climate change.  It is important to consider, when commissioning such modelling, to carefully study the assumptions underpinning that modelling and to confirm that those assumptions are reasonable. 

When providing advice, it is important to have the advice released by one point of contact, and to ensure consistency of advice.  It is critical that any advice that is given is accurate, and not ambiguous.  The use of disclaimers will go a long way towards protecting Councils in relation to such advice, provided they are adequately worded. 

The Civil Liability Act prescribes that the Court must consider financial and other resource limitations, that the general allocation of financial or other resources is not open to challenge, the Court must consider the broad range of activities undertaken by the local government, and that compliance with a local government's general procedures and any applicable standards for the exercise of its functions.  As negligence claims are invariably commenced well after the relevant decision is made, ensuring that good contemporaneous records about resourcing restrictions and similar issues which could give rise to a good defence, is important. Such records should be maintained in a form that will be retained, and not destroyed relatively quickly, in accordance with statutory document disposal standards.

Finally, while there is some protection from liability under the Disaster Management Act (2) , this is only for acts done under that act, and will therefore only have a short window of protection. 

Conclusion

Developing community resiliency for climate change is a critical consideration for mitigation of legal liability.  It is appropriate for Councils to:

1. consider climate change hazards when preparing planning schemes and assessing development applications;
2. consider the future effects of climate change, by adopting climate change factors in conformity with the IPCC and CSIRO recommendations on sea level rises, rainfall intensity, and prevalence of other natural disasters and weather events;
3. obtain expert opinion to assist in application of IPCC and CSIRO data to a particular area, and to assess properties at risk for identification in the planning scheme; and
4. review procedures for provision of information to residents and others doing business with your Council.

Mark Williams is a partner in King & Company Solicitors' Dispute Resolution And Litigation Group, and has over 20 years experience in defending professional indemnity and public liability claims made against local governments.  He is presently partnering with the Local Government Association of Queensland's  Queensland Climate Resilient Councils Program, in conjunction with the Queensland Department of Environment & Heritage Protection, presenting on Climate Change Liability to numerous Councils throughout Queensland. 

(1)  April 2016: http://www.dilgp.qld.gov.au/resources/policy/state-planning/spp-april-2016.pdf

(2)  See section 144 of the Disaster Management Act 2003 (Qld)