Exploring a coastal lawscape : a legal geography of coastal climate change adaptation in two New South Wales localities

Abstract

As the world is reshaped by global warming, both private and public actors must adapt to environmental changes in coastal localities. Coastlines are already experiencing significant impacts from climate change including an increase in floods and coastal storms and continuing coastal erosion. The central project of this dissertation is to understand how climate change adaptation strategies are framed by different policies and laws, how these strategies are negotiated by the relationships between local councils, state policy and private property owners, and by cultural understandings of property, climate change and the material environment. This dissertation undertakes empirical research in two coastal localities where there has been significant debate and contestation over how climate change adaptation measures are to be implemented. It describes and analyses relevant land use planning law and common law doctrines designed to respond to changes in private property title for waterfront property. It argues that government climate change adaptation policies and regulations ought not to disproportionally benefit private parties who own coastal property, notwithstanding significant social, cultural, political and economic pressures on public authorities to protect private property investments. In addition, the dissertation argues that coastal climate change adaptation ought to take into account the interplay between a variety of interests and factors to advance knowledge of the relationships between private interests and political actors, and of the ways in which these groups utilise existing laws, policies and discourses of property to shape adaptation outcomes. This dissertation is interdisciplinary and adopts a range of social research methods to explore a legal geography of coastal climate change adaptation including qualitative research, document analysis, and legal analysis, insofar as the latter informs the sociality of law. The rationale for the research design is to ensure a relational view of law, property and place, and as between persons and interests in coastal climate change adaptation. The dissertation makes three key findings. First, coastal management laws in New South Wales have sought to take account of the many competing interests in the coast, with several iterations of law reform. By adapting such reforms to allow for mechanisms such as rolling easements, law remains a potential enabler of climate change adaptation. Second, the dissertation shows that discourses of private property, which have dominated Australian land use planning since the formation of the state, have underpinned governmental responses to climate change. This has impeded the effectiveness of land use planning as a tool to facilitate climate change adaptation. This undermining of land use planning is evidenced by tensions between expert discourse and political expediency, and is justified by rationalising decision-making with reference to fears of potential legal liability for land use planning and development decisions. Third, informing residents' engagement with climate change adaptation policy are perspectives of property as an asset and instances of place attachment, underpinned by perceptions of environmental change and climate impacts. Residents in both localities express desires for regulatory intervention in protecting their own properties from climate impacts, but favoured no intervention in the provision of broader coastal protections. This disjunct is, in some instances, underpinned by 'Not In My Back Yard' (NIMBY) attitudes toward sea level rise. Ultimately, the dissertation finds that coastal climate change adaptation is complicated by multiple factors: the challenges of applying uniform laws in dynamic physical environments; varied interpretations of the same laws in different localities; social power and the use of litigation to enforce that power; and the ways in which governments frame and perpetuate cultural property discourses where these discourses prioritise private property rights. This dissertation demonstrates that exploring the interplay between these factors can contribute to a better understanding of the relationship between law, people, governments, property and the coast-a relationship that can be usefully categorised as a 'coastal lawscape'. In doing so, the dissertation contributes to both legal geography scholarship and to the understanding of the drivers of, and barriers to, climate change adaptation.

Date of Award	2017
Original language	English