Local Government New Zealand Releases Legal Opinion from QC

Ratepayers may face hefty legal bills

Local blogger Bill Barclay had the initial “scoop” about an LGNZ legal opinion from a QC which says it’s only a matter of time before local councils will be sued for inaction on climate change.  This story has now been picked up by the Newsroom media website and environment reporter Eloise Gibson.

Eloise Gibson begins her article by linking the threat of climate change litigation for councils to the poor decision-making by Thames-Coromandel District Council in granting consent to coastal development in areas at risk from coastal flooding and sea level rise.  She also references the recent adverse media coverage for our District when Thames-Coromandel Mayor Sandra Goudie refused to say whether she believes climate change is real.

“Newsroom reported in late 2017 that Thames-Coromandel council was still approving multi-million dollar housing developments on the waterfront after considering as little as 0.49m of sea level rise. Guidance at the time was to consider 0.8m and newer guidance is to consider up to 1.9m, however, a 73-unit apartment block for the elderly, expanding the retirement village Richmond Villas, was approved based on a 2001 flood hazard assessment, then 16 years old. 

A year after Newsroom’s special inquiry was published, and 18 months after approving the new development, Thames Coromandel District Council put a warning notice on the Richmond Villas title saying the land it was built on was considered at risk of flooding, overland flow, storm surge and tidal effects.

In January 2018, six months after the council approved the new apartment block, Radio NZ reported that a storm surge came over the seawall and flooded the entrance to the existing units.”

Jack Hodder QC concluded that climate changes cases around the world were getting more numerous, and creative. Unless central governments stepped in to properly tackle climate change risks, judges would likely step in, he wrote.

“There have not yet been any large damages claims in relation to failure to implement adaptation measures in New Zealand. However, it may be only a matter of time,” noted LGNZ in its note to local politicians. “We encourage you to discuss Mr Hodder’s paper with your council, to start thinking about how you can prepare for the likely changes and the steps that you can take to reduce your council’s exposure to litigation risk.”

This legal opinion should be a huge wake-up call for TCDC and other local authorities to take climate change much more seriously.  Back in 2017, I wrote to TCDC warning the Council of the court litigation risk it faced from making bad decisions about coastal development such as the Richmond Villas retirement apartments in Thames and numerous other coastal developments.  None of these warnings was taken seriously.

Mayor Goudie invariably talks up the potential costs of climate action but always conveniently ignores the downside costs to ratepayers of inaction from being sued or having to replace expensive infrastructure because of climate impacts. 

TCDC should show that it takes climate change seriously by agreeing to sign the LGNZ Climate Change declaration next Tuesday when the matter will be discussed at a Council meeting. 

That looks like being a forlorn hope and the embarrassing negative media coverage of TCDC’s lack of action on climate change is, unfortunately, going to continue – at least until the local body elections in October of this year? 

Read the legal opinion from Jack Hodder QC here