The Assessment of Flooding Risks in the Courts: Seeds of a Divergent Jurisprudence

Abstract

In Australia, risk analysis, risk assessment and risk management are buzz words for decision-makers who must deal with the prospective – but relatively uncertain – impacts of climate change and other environmental risks. But what do these terms mean in practice and how do they play out in the courts? This article identifies some divergent approaches to these issues with particular regard to planning policies, instruments and case law involving a risk of flooding. It identifies three alternative policy approaches and tracks their application (and non-application) in the courts in particular flooding cases. It argues that, despite a dominant policy paradigm favouring strategic land-use planning and adaptive risk management, when assessing flooding risks, the courts have often applied a more normative and precautionary approach in their own decision-making. Some reasons for this “divergent jurisprudence” are discussed.