• Boy stands beside signs of flood levels on building in Lismore city centre. Notice the flood levels of the three floods last year, 2022 - and the second floor flood level of the last flood.
Photo Mike Haydon, 2023
It’s time for legal challenges to the way Australian councils raise income in their rates.
At its heart a challenge I have in mind will say its unlawful for local councils to ignore climate pollution they cause when choosing how much to increase rates, or what to do with rates money. The challenge would involve any government agency, tribunal or minister which allows council rates to go up without counting the costs councils cause by their own climate pollution.
Here’s some recent rate increases for some councils in NSW:
• 58% over 3 years - Armidale Regional Council
• 48% over 2 years -Bega Valley Shire Council
• 32% over 4 years - City of Canada Bay Council
• 74% over 4 years - Federation Council
Typically, according to the list of these increases, labour costs are about 41% of a council budget, and the next highest cost (13%) is roads, drains, bridges, footpaths.
My legal challenge will say its unlawful for councils to ignore climate pollution they cause when deciding what rates to charge, or when spending rates money. It will also say councils are not entitled to rate increases to pay for rising costs they wholly or partly cause from their climate pollution.
Councils pay staff and contractors who create climate pollution, and council works and services (subdivisions, roads, footpaths, garbage collection and disposal, etc) cause climate pollution, too.
If I or my neighbours choose to buy petrol powered cars, coal-powered electricity, polluting gas, town water and sewerage, or to throw out as garbage the food that’s the third largest cause of collapsing the climate - these actions may be completely beyond legal challenge.
But what local councils do or don’t do can be challenged and stopped in courts. Legislation sets higher controls over councils than it does for citizens. Council powers and duties are created, defined and limited in legislation. There’s been lots of litigation against councils for not complying with their duties and powers.
In NSW, for example, councils have a legal duty to consider sustaining Earth’s climate when they make choices under the Act which also gives them a power to raise rates. The NSW Local Government Act states in s8A(2) that ‘guiding principles for councils’ which apply to their decision-making process under powers created by the Act include:
“(c) Councils should consider the long term and cumulative effects of actions on future generations.
(d) Councils should consider the principles of ecologically sustainable development.”
The Dictionary in that Act defines ‘principles of ecologically sustainable development’ in great detail (see notes below). Part of the definition says the words include:
“ (a) the precautionary principle--namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by--
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options,”
(the full definition is below)
The serious and growing risk, and the facts, of environmental and social collapse from global warming caused by human actions are clearly within the Local Government Act’s definition as they are a “threat of serious or irreversible environmental damage”.
A recent successful challenge saw a court direct the NSW Environment Protection Authority to comply with a duty in legislation, Bushfire Survivors for Climate Action.
The court decided the legislation’s direction to the EPA “to develop environmental quality objectives, guidelines and policies to ensure environment protection, in the current circumstances, includes a duty to develop instruments of the kind described to ensure the protection of the environment in New South Wales from climate change”.
The court then said, “”An order in the nature of mandamus should therefore be made to compel the EPA to perform its duty.”
In the successful challenge to the EPA’s failure to observe a duty given to it the court accepted this evidence, and so do I:
“Professor Sackett described climate change as “the greatest threat to the environment and people of New South Wales”. Paragraph 60
Climate pollution is causing disastrous tipping points of Earth’s climate, oceans, lands, forests and resources according to a major study The Guardian reported seven months ago, so litigation contemplated to stop council climate pollution may be granted an expedited court hearing.
The duties in the Local Government Act and the Act setting up the Environment Protection Authority are different but both sets of duties are legally enforceable by citizens. When deciding rates neither IPART nor its Minister have any greater power or any lesser duty than do councils under the Local Government Act. The Act applies equally to IPART, a minister and councils.
Since 2010 NSW rate increases for all of the state’s 128 councils have been approved by a tribunal called the Independent Pricing and Regulatory Tribunal (IPART). IPART sets rate increases when the Minister in charge of IPART asks it to recommend rate prices using a power given in s506 of the Local Government Act which says:
“ (1) The Minister may, by order published in the Gazette specify the percentage by which councils' general income for a specified year may be varied.
(2) Without limiting subsection (1), the order may—
(a) specify different percentages for different areas of councils, and
(b) specify a methodology for calculating a percentage rather than specifying a particular percentage, including by specifying a base”
I see that s8A of the Local Government Act creates a duty on those who exercise powers under the Act, and s506 of the Act creates a power to raise rates. The duties in s8A are not excluded by s506.
But I don’t see councils, IPART (or the Minister) observing their duty under s8A to ‘consider the principles of ecologically sustainable development’. (The NSW EPA has published guidelines and solutions for local councils to reduce their climate pollution. The Environmental Defenders Office proposes new planning laws and a climate prevention law which include mandatory climate pollution reduction by councils.)
Instead, IPART has made a pricing index that counts council capital and recurring costs. The index is limited to typical book keeping items such as: “Office and building cleaning services”, “automotive fuel”, “electricity”, “gas”, “construction works – road, drains, footpaths, kerbing, bridges”. As these costs go up so do council rates using an IPART calculation.
The index does not include the cost or amount of council climate pollution. Council actions which contribute to global warming and its impacts on council and community costs are not included and some are;
• Using electricity and gas which causes global warming and increases the frequency and extent of floods, droughts, fires,
• Climate pollution caused by council contractors;
• Climate pollution from council waste management facilities including from food waste,
• Floods, droughts, fires due to council planning approvals and works,
• Soil loss and clean up or damage to rivers, aquatic life due to erosion from council infrastructure,
• Tree clearing the council explicitly approves or carries out itself,
• Building black roads and approving housing with black roofs which increase urban heat and air conditioning use and increase electricity use which increases global warming.
What would IPART’s list look like if it controlled costs on Easter Island during its collapse?
In the book, Collapse: How societies choose to fail or succeed, and written by Jared Diamond, Diamond says the island collapsed because the locals carved huge statues to worship leaders and spirits and cut down trees to move the statues into place, all of which ended the food growing capacity of the islanders, brought starvation and collapse.
If a council existed on Easter Island and IPART controlled its rates IPART would count the number of statues built and the number of trees cut down to get logs to roll the statues into place.
IPART would not count the decline in: quantity or quality of arable soil, soil fertility, tree and vegetation loss, erosion trends, local food production, human health due to incapacity to go to sea to catch fish because canoes could no longer be built to fish from, and so on.
IPART would fail to sustain that culture and be no different in its thinking to the authors of the island’s collapse.
If IPART continues with its pricing criteria for NSW councils then, in my view, IPART will continue to contribute to and promote the decline of NSW’s natural and financial wealth. It’s probably the best defendant to choose in any litigation because suing it would catch all 128 NSW councils requesting permission to increase their rates.
The Easter Island statues remind me of two things.
• Easter Island statues remind me of the NSW Independent Priding and Regulatory Tribunal (IPART)
IPARTs cost index. Its an edifice erected in public staring stonily into the distance with a fixed, narrow view of what is holy to IPART and which is their lens of the world – money.
And the photo this year showing a friend’s son standing beside the wall of a block of flats in Lismore city, NSW, with signs on it showing recent flood levels. (See my friend’s blog - Mike Haydon - here.)
The last, much-the-highest and latest sign, the third flood of the city centre in 2022, frightens me. More so, because IPART has no interest in it, probably doesn’t know what’s happening there, across NSW and Earth, just continues to stare out, looking at money.
Michael
Note:
If you’ld like to be involved in such litigation, know more about it, support it in some way, please let me know either with a comment here or email me. Thank you.
Legislation
The Dictionary in the Local Government Act definition says: "principles of ecologically sustainable development" means the following statements of principle--
Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs--
(a) the precautionary principle--namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by--
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options,
(b) inter-generational equity--namely, that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations,
(c) conservation of biological diversity and ecological integrity--namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,
(d) improved valuation, pricing and incentive mechanisms--namely, that environmental factors should be included in the valuation of assets and services, such as—
(i) polluter pays--that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,
(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,
(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.”