This is a summary of the 2017 VPELA Barber Lecture delivered by The Hon Michael Kirby AC CMG, former Justice of the High Court of Australia
On 28 November 2017, at the second annual Barber Lecture sponsored by URBIS, guests were welcomed by Tamara Brezzi (President, VPELA) and The Hon Michael Kirby was introduced by Adrian Finanzio SC (2006-2017 VPELA board member). The Hon Michael Kirby paid respect to the first President of VPELA, Peter Barber.
Planning and environmental law
From 1903 to 1976, planning cases were heard by the High Court from time to time prior to amendments to the Judiciary Act 1903 (Cth). This changed in 1976. The High Court took command of the decision as to who should come into the High Court by way of special leave application. As a result, there was a substantial concentration on federal legislation. This was a pity because town planning is an area of ‘people law’ which affects people as dwellers on this planet.
During his time as President of the Court of Appeal of New South Wales, The Hon Michael Kirby heard and determined a large number of cases. In those days, he was never in dissent. Some cases related to the application of environmental law. In 1996, the Hon Michael Kirby was appointed to the High Court. During 1997 – 98, IW v City of Perth (1997) 191 CLR 1 was heard by the High Court. This case concerned a challenge by IW to a decision of the City of Perth to refuse a permit application. The permit application was made by a group who were trying to set up a drop in centre for a community in Perth who were living with HIV/AIDS. The Council debate recorded that Councillors did not think these people were appropriate for this city or country and accordingly drop in centres should not be permitted. The reasoning went that these strange people might infect others and might be using needles. The claim was brought under anti-discrimination law. The question before the Court was whether Council had refused to deliver a service under a forbidden ground?
The Judges below said yes. At this time, Denning J had an opinion on the question what does a Council produce? A Council produces services and those services deliver products which can be judged by law. The High Court said that Council was not delivering a service, rather they were performing a statutory function which cannot be delivery of a service and therefore the appeal failed. There were two dissenting judges including Kirby and Toohey JJ. The dissenters considered that the Council was offering a service consistent with the view of Denning J.
On 25 March 2003, then Chief Justice French gave an address while still in office. He recounted how as a student at University of Western Australia he gave a lecture against a person who later became the Minister of Town Planning. In this speech, French CJ said that the impact on town planning included development of the common law and administrative law. French CJ quoted his colleague who summed up administrative law in 3 words: lawful, rational and fair. French CJ added upholding property rights and indigenous land rights to this list. Converting respect into action and rectification of denial of historical indigenous people’s land rights was important to allow them access to economic means which might have assisted them to avoid socio-economic disadvantage.
International Human Rights Law
On 10 December 1948, the Universal Declaration of Human Rights was adopted. Mr Evett was then President of the Assembly of the United Nations. Article 17 as adopted declares that everyone has the right to own property and no one will be arbitrarily deprived of property. However, that article did not find its way into the international covenants on socio- and economic rights. Property rights will be respected but in accordance with the general interests – a recognition that these rules would have to bend to conform to the general interest.
Turning to the United Kingdom, in 1998, Blair piloted through the House of Commons and House of Lords the Human Rights Act 1998 (UK) which made the Human Rights Convention of the European Union apply in the UK. Lawyers had to consider whether there were provisions relevant to town planning. Article 1 provided a guarantee of peaceful enjoyment of the possessions of a person. Article 14 made discrimination unlawful. Article 16 had the effect that for every dispute at law you were entitled to have access to a court and have dispute decided by a court or tribunal that was independent.
After 1998, there were a whole range of cases where assertions were made in the UK that the Human Rights Act 1998 (UK) was relevant to planning cases. It was then necessary to look at the European Court of Human Rights which also became relevant to Australia especially when we enacted a Charter of Human Rights and Responsibilities Act 2006 (Vic). The Hon Michael Kirby noted the potential application of planning law to gypsies, also known as the roamer people, who do not wish to settle down in a nice neat council house but to move constantly. These were the Gypsies Roamer. The Human Rights Act 1998 (UK) stated that the test of proportionality applied in the UK. This was marginally different to the test of Wednesbury unreasonableness. The policy may have been to keep judges in their place and avoid interference with jurisdiction. Wednesbury unreasonableness was effectively a ‘non-irrationality’ principle and a very high hurdle. This made it almost impossible to challenge on the basis of non-irrationality. However under the Human Rights Act1998 (UK), the principle of proportionality was applied on the basis that it was ‘substantially the same test’ .
The decision in Lopez Ostra v Spain (European Court of Human Rights, Strasburg, 9 December 1994) related to a State grant of a subsidy to build a tannery near the applicant’s home. The Court held that this was a breach of human rights. Environmental pollution resulting from a tannery may prevent residents from enjoying their homes. The Court awarded Mrs López Ostra ESP 4,000,000 in pecuniary and non-pecuniary loss.
Turning to climate change risks, recent work done by the Centre for Policy Development has looked at whether a company director (or town planner) should or must consider modelling for possible impacts of climate change on issues relevant to the decision of that company director (developer or planning regulator).
A joint legal opinion of Noel Hutley and Sebastian Hartford-Davis considers the question of whether there is a breach of s 180(1) of the Corporations Act 2001 (Cth) if a company director fails to take into account any relevant developments affecting climate change.
The argument runs that climate change risks are capable of representing risks of harm to Australian companies which would be regarded as forseeable, to the extent they intersect with the interests of the company. Certainly directors are not legally prohibited from considering climate change. To the contrary, it is considered that company directors can and in some circumstances should take into account climate change risks. Company directors need to form their own assessment as to what if any action is to be taken. In that scenario, they may attract the protection of the business judgment rule. In Australia there are stronger reasons for this than other countries because Australia is more exposed to the risks of climate change which if not taken into account may amount to a failure of director’s duties.
The CSIRO and Bureau of Meteorology have observed an increase in average surface temp of 0.9C since 1910. This is linked to increasingly frequent and intense heatwaves and rainfall events. Modelling that was undertaken as part of Garnaut Climate Change Review 2011 considered the possible impacts of temperature rise beyond 2°C including:
1) agricultural production in Murray Darling Basin will cease;
2) destruction of the Great Barrier Reef;
3) significant increase in cost of supplying urban water;
4) increase in health-related deaths;
5) sea-level rise beginning to cause major dislocation in coastal megacities of south Asia, south-east Asia and China and displacement of people in islands adjacent to Australia.
If it is the duty of a company director to consider climate change risks in decision-making, then is there also a duty on those who are advising on planning and advising decision makers? It is unsafe for entities or regulators to ignore risks. It is better if risks are explicitly considered rather than ignored or neglected. Modelling the potential impact of climate risks under different scenarios has been conducted. The impacts of a rise of 2°C is the most important model and will guide the development of much government policy around the world.
In March 2015, The Hon Michael Kirby joined a group of experts which met in Oslo and formulated the Oslo Principles on Global Obligations to Reduce Climate Change (Oslo Principles). The Oslo Principles were designed to uphold the objects of the Paris Agreement of the Parties to the UN Framework Convention on Climate Change (2015).
On 13 November 2017, a decision was made in a case which concerned a claim brought by a litigant and civil society in Peru in the case of Huaraz, Saul v RWE. Mr Saul, a farmer in Peru, brought a claim against RWE which is a large corporation in Germany and reported to be the largest emitter of CO2 in Europe. GermanWatch reports that RWE is responsible for ½ of 1% of global CO2 emissions. Mr Saul asked RWE to bear the costs of protection measures against a glacial outburst in the Peruvian mountains, part of the South American Andes. He filed the claim in 2015 in the District Court of Essen, Germany under German Civil Code. The Court held that the house of the claimant would be flooded and therefore held he had standing. The Court also held that climate change could well be responsible for any such flood but rejected the claim on legal grounds.
An appeal was brought to the Higher Regional Court, Hamm against the negative ruling of the Regional Court, Essen. On 13 November 2017, that Court decided that the appeal at the Higher District Court, Hamm would go to trial and is now scheduled as an oral hearing.
The Hon Michael Kirby noted the similarities between this case and litigation regarding asbestosis and cancers arising from cigarette and tobacco use. He noted the indication that judges and others making decisions regarding environmental questions in Europe might be more willing to render accountable those who are responsible for wrongs. The Court will determine whether RWE is liable proportionate to the level of impairment to cover the expenses for appropriate safety precautions to protect claimants property such as Mr Saul from a glacial outbreak. That is, RWE may be required to share costs for protection measures against climate change. The purpose of this litigation is to render those accountable for inflicting wrongs against others. The Hon Michael Kirby noted that the fact this litigation is unfolding in Germany is significant, being a ‘serious rule of law country’.
The evening concluded with a question and answer forum hosted by Adrian Finanzio SC.