Duty of Care: The return of Sharma considerations for planning decisions

The Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Bill 2023 (Bill) was introduced into Victorian Parliament this week. The Bill codifies previously announced renewable energy targets, but also introduces an important amendment to the Planning and Environment Act 1987 (P&E Act).

Section 12 of the P&E Act sets out the duties and powers of planning authorities in Victoria. These duties currently include a requirement to consider the significant effects on the environment when making planning decisions.

The Bill:

• inserts a new objective of the planning framework established in section 4(2) of the P&E Act, to provide for explicit consideration of the policies and obligations of Victoria relating to climate change, including greenhouse gas emissions reduction targets and the need to increase resilience to climate change, when decisions are made about the use and development of land
• amends section 12 of the P&E Act to expressly require consideration of emissions reductions targets and any significant risk to any use or development that arises from, or is likely to arise from, the impacts of climate change, when a planning authority prepares a planning scheme or amendment
• Inserts new section 12A to provide the Minister for Planning with a directions power, to issue written directions to planning authorities in relation to matters relating to climate change to which planning authorities must have regard in preparing a planning scheme or amendment.

In effect, this Bill appears to introduce a Sharma duty for planning authorities.

The Sharma Decision

Sharma v Minister for the Environment [2021] FCA 560 and its appeal Minister for the Environment v Sharma [2022] FCAFC 35 (Sharma) concerned a challenge by a representative class of children against a Ministerial approval granted under environmental legislation to extend a coal mine. At first instance, the judge held that there was a real risk of harm to the represented class arising from the carbon emissions the extension would cause, that the Minister had substantial control over the risk of harm and that the children were vulnerable to that risk. The judge held that the Minister owed all Australians under 18 years of age a duty of care to exercise her powers under environmental legislation with reasonable care to not cause them harm.

On appeal, the Full Court overturned the finding that the Minister owed the children a duty of care. Chief Justice Allsop and Justice Wheelahan held that the environmental legislation did not create a relationship between the parties that gave rise to a duty, that the duty would be inconsistent with the Minister’s obligations under the relevant Act and that any assessment of breach of the duty would create policy questions that were not appropriate for judicial consideration.

Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Bill 2023

The appeal in Sharma dismantled a radical yet short-lived extension of an implied duty of care to avoid harm from the future effects of climate change. It appears that the intent of this Bill is to create an express legislative duty of care for planning authorities to consider the effects of climate change when preparing planning schemes or amendments.

There have been 594 planning scheme amendments made in Victoria in 2023. These are made by the 79 local government authorities in Victoria that act as planning authorities, and the Minister for Planning in her administration of the Victoria Planning Provisions.

By incorporating a climate change and emissions reduction target duty of care in section 12 of the P&E Act, planning authorities would be required to take reasonable care to avoid causing harm or increasing the risk of harm from climate change to current and future residents of Victoria when preparing planning schemes or amendments.

Planning authorities, including local government authorities and the Minister for Planning, may need to consider their exposure to climate change litigation when preparing planning scheme amendments. A failure to consider the duties introduced by this new Bill could leave decisions exposed to challenge.

As a starting point, planning authorities may wish to consider how they discharge their duty as public authorities to give proper consideration to a relevant human right under section 38 of the Charter of Human Rights and Responsibilities Act 2006. A similar consideration may be required when officers and delegates of public authorities are preparing planning scheme amendments in this new post-Sharma environment, to demonstrate they have discharged their duty to consider.

If you or someone you know has any questions about planning scheme amendments, climate change law or the impacts of this legislative amendment, please contact our experienced team of planning & environment lawyers below.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Tess Kerridge

Jesse Cowie, Sarah Calder

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