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

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England, Philippa
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2018
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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.

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Environmental and Planning law journal

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35

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3

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© 2018 Thomson Reuters. This article was first published by Thomson Reuters in the Environmental and Planning law journal and should be cited as 2018, 35 (3), pp. 267-279. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.

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Environmental and resources law

Urban and regional planning

Social Sciences

Government & Law

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England, P, The Assessment of Flooding Risks in the Courts: Seeds of a Divergent Jurisprudence, Environmental and Planning law journal, 2018, 35 (3), pp. 267-279

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