Lark v. Shellharbour City Council
Jurisdiction: Land and Environment Court (NSW)
Side A: Mitchell Lark (Individual)
Side B: Shellharbour City Council (Government)
Plaintiff challenged climate-based conditions in building permit
In February 2012, Shellharbour City Council granted an application to demolish a garage and construct a new dwelling in flood prone land, subject to certain conditions, including meeting minimum floor height requirements. Those floor height requirements were set, in part, to take into account projected flood zone changes due to climate change. On September 4, 2015, Mitchell Lark appealed a denial of his application to modify those conditions to the New South Wales Land and Environment Court. Lark sought to modify the conditions to allow for an as-built floor height slightly below the minimum requirement, on the argument that the built floor could be protected by the addition of masonry edging to the front and side porches and rear deck.
On December 18, 2015, the Court rejected Lark’s appeal and affirmed the City Council’s conditions. The Court reasoned that the site was on flood prone land in a Medium Flood Risk Precinct, and that the Council would likely not have approved the development application had the floor levels as-built been proposed. Further, the Court found that the applicant’s expert witness did not take into account climate change-related sea level rise.