“The Legal Consequences of Ignoring Climate Change” Dr Michael Eburn ANU College of Law CANBERRA

“The Legal Consequences of Ignoring Climate Change” “Local decision-makers who fail to prepare their communities for climate change could find themselves in court.” Thomas & Mazur in Voices of the Governing Institute (19 October 2015). But are they correct?

They say: “Last month, in a case that sent shivers through corporate America, a former peanut-company executive was sentenced to 28 years in prison for his role in a deadly salmonella outbreak. The executive, Stewart Parnell, knowingly shipped contaminated peanut butter to stores across the country. Nine people died and hundreds more were sickened… Parnell's punishment … signals an important shift in the prevailing legal winds: More courts are holding people to account for failure to prevent harm.”

They say: “Last month, in a case that sent shivers through corporate America, a former peanut-company executive was sentenced to 28 years in prison for his role in a deadly salmonella outbreak. The executive, Stewart Parnell, knowingly shipped contaminated peanut butter to stores across the country. Nine people died and hundreds more were sickened… Parnell's punishment … signals an important shift in the prevailing legal winds: More courts are holding people to account for failure to prevent harm.”

They conclude “At its core, government exists to prevent us from harming each other… Decision-makers who ignore the threat of climate change, take note: Whether at the gates of St. Peter's or before a judge, you may be called upon to answer for your actions.”

They conclude “At its core, government exists to prevent us from harming each other… Decision-makers who ignore the threat of climate change, take note: Whether at the gates of St. Peter's or before a judge, you may be called upon to answer for your actions.”

But first … Their analogy – that “knowingly shipped contaminated peanut butter” equates to planning for climate change seems misplaced. A better analogy is Graham Barclay Oysters v Ryan (2002) 211 CLR 540; there the plaintiff shipped oysters with a known risk of Hepititis A.

Liability The manufacturer wasn’t negligent. The council wasn’t negligent. The State wasn’t negligent. No one was negligent, but still Mr Ryan and his guests contracted hepatitis A.

Not acting on a low probability event does not equal ignoring it. The chances of winning the first division prize in the Saturday Lotto is 1:8,145,060.* If you do win then a 1:8,145,060 event occurred. * http://www.lotterywest.wa.gov.au/games/games-information/saturday-lotto. The occurrence of a low probability event doesn’t mean the risk assessment was wrong or the risk was ‘ignored’.

The ‘reasonable person’: 1. endowed with reason. 2.  agreeable to reason or sound judgement: a reasonable choice. 4.  moderate… Reason: 1. a ground or cause, as for a belief, action, fact, event, etc.: the reason for declaring war. 4.  sound judgement or good sense. Macquarie Dictionary (Online).

Negligence: duty of care – to whom? The developer? The subsequent purchaser? Consider Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 – The garage was below the level of the water table!

There was no duty of care To the ultimate purchaser. The developer was aware that the building would have drainage difficulties and had planned for them. Council had no relationship with the ultimate purchaser. A common law duty has to be consistent with the statutory obligations.

Even though statutory powers must be exercised with reasonable care it does not follow that there is a duty to developers and/or subsequent purchasers of the property. There may be a duty to take reasonable care in deciding whether any statutory requirements are met before granting an authority.

There may be a duty of care if the council knows of something seriously detrimental to the subdivision or the building, and is aware that the developers and/or purchasers do not or cannot know this. If it is a condition of an approval that the developer do something, there may be a duty to take reasonable care to ensure that the condition has been met. Makawe Pty Limited v Randwick City Council [2009] NSWCA 412, [43] (Hodgson JA).

Local Governments As planning authorities, must have regard to State planning policies eg State Planning Policy no. 3.4: Natural Hazards and Disasters (2006). State Planning Policy No. 2.6: State Coastal Planning Policy (2013). (Planning and Development Act 2005 (WA) ss 72, 77A and 77).

Minister for Planning v Walker [2008] NSWCA 224. “… it is a condition of validity that the Minister consider the public interest. Although that requirement is not explicitly stated in the EPA Act, it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act that … it goes without saying.” [39]. The public interest includes consideration of the impact of climate change [41].

Daikyo (North Qld) v Cairns City Council [2003] QPEC 22 The prevailing philosophy, based on sound common sense, is to balance risk and economics… A responsible Council, in making land use planning decisions, takes into account other factors such as risk acceptance, emergency planning measures and community economics.’ ([22], [24])

‘Consideration’ does not mean ‘trumps’ It is for the decision-maker to determine the weight to be given to the matters which must be considered or taken into account. The decision-maker has ‘to choose among courses of action upon which reasonable minds may differ’ The Hon Justice Brian J Preston, ‘Climate Change in the Courts’ (2010) 36(1) Monash University Law Review 15

Limited duty of care… The mere fact that you can foresee that climate change will impact does not mean there is a duty to protect everyone from everything. A duty may be established but it must be consistent with the statute.

Breach of duty What would a reasonable man do? “The inquiry into breach … must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be "nothing".” (Vairy v Wyong Shire Council (2005) 223 CLR 422, [124] (Hayne J)).

The question is prospective … So it is based on what you know at the time. Don’t look through the retrospectoscope! What did the defendant in Ambulance Service of NSW v Worley [2006] NSWCA 102 know?

Civil Liability Act 2002 (WA) s 5W the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available … the general allocation of those resources by the public body or officer is not open to challenge;  the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate);  the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. 

The policy ‘defence’ Even if you foresee the risk and need to do something – what do you do? Avoid; Planned or managed retreat; Accommodate; or Protect? State Planning Policy No. 2.6: State Coastal Planning Policy (2013), [5.5]

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 “Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.” ([6], Gleeson CJ). Exercising policy options is politics – it’s what counsellors are elected for!

Civil Liability Act 2002 (WA) s 5X “In a claim for damages for harm caused by the fault of a public body or officer arising out of fault in the performance or non-performance of a public function, a policy decision cannot be used to support a finding that the defendant was at fault unless the decision was so unreasonable that no reasonable public body or officer in the defendant’s position could have made it.”

Southern Properties (WA) v Executive Director CALM [2012] WASCA 79 2004 Hazard reduction burn lead to damage to the plaintiff’s grape crop. The plaintiff asked the defendant not to burn during the period when grapes were most susceptible to ‘smoke taint’

McLure P (with whom Buss JA agreed) There will be no duty at common law to the extent that it is incompatible with other duties, statutory or otherwise, imposed on a defendant. [95] A duty will not arise if it may undermine the effectiveness of the duties imposed by the statute or if it could distort the performance of statutory functions.[96] Pullin J dissented.

Self help Consider Byron Shire v Vaughan [2009] NSWLEC 88; and [2011] NSWSC 824.

In summary Local Government decision makers have to act according to law. Failing to do so can lead to liability; but Acting in according with the law doesn’t rule out a number of possible outcomes. An outcome made in accordance with the law does not lead to liability even if bad outcomes follow.

Questions? Comments? Thank you for your attention. And thank you WALGA and LGIS. Dr Michael Eburn E: michael.eburn@anu.edu.au P: 02 6125 6424