Michael Eburn ANU College of Law and Fenner School of Environment and Society Mainstreaming law and policy

Look at “extent” and “strength” Emergency management considerations do come into planning, the “extent”. But what is the “strength”?

Strength How is EM measured against other priorities – amenity, biodiversity, private preference. Are the EM requirements enforced – both during and after development.

Shared responsibility “A key policy issue which remains highly contested … is the level of risk aversion or tolerance to be reflected in development controls” (Macintosh, Foerster & McDonald, iv). Who gets to decide: –what risk is too great? –what the priorities are?

Taxonomy of spatial planning instruments (from Macintosh A, Foerster A & McDonald J, Spatial Planning Instruments for Climate Change Adaptation, Draft Project Report, NCCARF Framing instruments 2.Information instruments 3.Regulatory instruments 4.Compulsory acquisition instruments 5.Voluntary instruments 6.Taxes and charges 7.Liability shield instruments

Land use planning is the answer… But what was the question? What is it we’re trying to achieve?

The role of government and property rights What is the role of government in protecting people for their own decisions or protecting private property? Where’s the ‘public good’? To whom does government owe a duty? Consider Makawe Pty Limited v Randwick City Council [2009] NSWCA 412

Role of courts Merits review or judicial review? Can delay proceedings and decisions Consume resources Civil Procedure – “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” Civil Procedure Act 2005 (NSW) s 56.

Byron Shire v Vaughan [2009] NSWLEC 88, [16] The Council is seeking to enforce a public law, the EP&A Act. The Respondents argue the status quo is to allow them to erect the sandbag wall as built by the Council which previously existed … The Council argues that due to circumstances beyond the Council’s control in relation to recent extreme and unpredictable weather events the situation has fundamentally altered and it does not follow that the sandbag wall as previously constructed should be erected … Further, there is likely to be environmental harm resulting if that work occurs.