The Law of Coastal Adaptation: Insights from Germany and New Zealand [1st ed.] 9783030489618, 9783030489625

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Linda Schumacher

The Law of Coastal Adaptation Insights from Germany and New Zealand

The Law of Coastal Adaptation

Linda Schumacher

The Law of Coastal Adaptation Insights from Germany and New Zealand

Linda Schumacher Bremen, Germany Doctoral thesis (Dissertation), University of Bremen

ISBN 978-3-030-48961-8 ISBN 978-3-030-48962-5 https://doi.org/10.1007/978-3-030-48962-5

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This work has been updated and slightly modified for the purpose of publication.

Acknowledgements

First, I would like to thank my supervisors, Prof. Dr. Gerd Winter from the University of Bremen and Prof. Barry Barton from the University of Waikato, for their continuous and endless support. In all honesty, I could not have wished for better and more dedicated advisors. Without their profound knowledge and generous advice, this work would not have the same depth as it now does. I would like to express my gratitude to the Deutsche Forschungsgemeinschaft (DFG) for funding the INTERCOAST project and thereby my Ph.D. project. Appreciation is due to the INTERCOAST project itself, and I would like to express that I am grateful for the opportunity of being part of this international and interdisciplinary graduate program. Furthermore, my sincere thanks goes to my colleagues at the Forschungsstelle für Europäisches Umweltrecht (Research Centre for European Environmental Law) at the University of Bremen. Heartfelt thanks goes to my fellow INTERCOAST colleagues, many of whom have become lifelong friends along our common path towards attaining our respective Ph.D. degrees. In particular, I would like to thank Pradeep Singh for his friendship, our many discussions about the Common Law and his recipe for chicken curry. Thanks to my lovely colleagues at the University of Waikato, I felt very welcome during my research stay in New Zealand. Muchas gracias, Daniela Aguilar Abaunza, for being a marvelous office mate as well as a friend. Finally, very special thanks goes to my parents, Anke and Jochen Schumacher, who raised me to be an independent and confident woman who is not afraid to spread her wings and fly to the other side of the world. At the same time, thank you for always being there for me and supporting me in all my endeavors, irrespective of what situation in my life I am adapting to at the time.

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Contents

1

2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Setting the Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1.1 Climate Change in the Coastal Context . . . . . . . . . . . . 1.1.2 The Need for Coastal Adaptation . . . . . . . . . . . . . . . . . 1.1.3 Adaptation in a Broader Sense . . . . . . . . . . . . . . . . . . 1.1.4 The Role of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Climate and Climate Change . . . . . . . . . . . . . . . . . . . . 1.2.2 Climate Change Mitigation and Adaptation . . . . . . . . . 1.2.3 Vulnerability and Resilience . . . . . . . . . . . . . . . . . . . . 1.2.4 Hazard, Risk and Hazard Risk . . . . . . . . . . . . . . . . . . . 1.2.5 Coastal Zone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.6 Coastal Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 On the Comparative Aspect . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Reasons for Choosing Germany and New Zealand As Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1.1 Factual Similarities and Differences . . . . . . . 1.3.1.2 Institutional Differences . . . . . . . . . . . . . . . 1.3.2 Comparative Aspects of This Thesis . . . . . . . . . . . . . . 1.3.2.1 The Functional Method and the Presumption of Similarity . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2.2 Comparison of Overall Concepts . . . . . . . . . 1.4 Scope of the Thesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 Purpose of This Work . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 1 2 3 3 4 4 5 5 6 6 7 7

9 10 11 11 11 12

Scientific Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Climate Change and Rising Sea Levels . . . . . . . . . . . . . . . . . . . 2.1.1 Changing Climate . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 15 15

7 7 8 9

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2.1.2 2.1.3 2.1.4

2.2

2.3

2.4 2.5

2.6

2.7 2.8

Global Mean Sea Level Rise . . . . . . . . . . . . . . . . . . . . Tipping Points and Abrupt Changes . . . . . . . . . . . . . . Different Types of Sea Level . . . . . . . . . . . . . . . . . . . 2.1.4.1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.4.2 Regional Sea Level Rise Projections for Germany and New Zealand . . . . . . . . . . Consequences of Rising Sea Levels . . . . . . . . . . . . . . . . . . . . . 2.2.1 Coastal Flooding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Coastal Erosion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Coastal Squeeze and Other Impacts . . . . . . . . . . . . . . . 2.2.4 Need for Adaptation . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.5 Predictions for Germany . . . . . . . . . . . . . . . . . . . . . . . 2.2.5.1 North Sea . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.5.2 Baltic Sea . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.6 Predictions for New Zealand . . . . . . . . . . . . . . . . . . . . Examples of Past Coastal Hazard Events . . . . . . . . . . . . . . . . . 2.3.1 Storm Surge 1962 at the North Sea . . . . . . . . . . . . . . . 2.3.2 New Zealand Flood Events in February 2018 . . . . . . . . 2.3.3 A Worldwide Problem: The Example of Hurricane Katrina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Coastal Adaptation Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . Overview of Coastal Adaptation Actions . . . . . . . . . . . . . . . . . 2.5.1 Risk Assessment and Hazard Mapping . . . . . . . . . . . . 2.5.2 Structural “Hard” Defences . . . . . . . . . . . . . . . . . . . . . 2.5.3 “Soft” Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3.1 Dunes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3.2 Sand Nourishment . . . . . . . . . . . . . . . . . . . 2.5.3.3 Buffer Zones . . . . . . . . . . . . . . . . . . . . . . . 2.5.4 Risk Avoidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.5 Accommodation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.5.1 Flood-Resistant Design . . . . . . . . . . . . . . . . 2.5.5.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.6 Retreat Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.6.1 Managed Retreat . . . . . . . . . . . . . . . . . . . . . 2.5.6.2 Coastal Setbacks . . . . . . . . . . . . . . . . . . . . . General Challenges for Coastal Adaptation to Rising Sea Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.1 Complexity of Coastal Adaptation . . . . . . . . . . . . . . . . 2.6.2 Long-Term Perspective . . . . . . . . . . . . . . . . . . . . . . . . 2.6.3 Coping with Uncertainty . . . . . . . . . . . . . . . . . . . . . . . 2.6.4 Avoiding Maladaptation . . . . . . . . . . . . . . . . . . . . . . . Intersection with Other Areas and Demands . . . . . . . . . . . . . . . Impact on the State, Its Responsibilities and the Role of Law . . . 2.8.1 The State’s Role in Coastal Adaptation . . . . . . . . . . . .

17 17 18 18 20 20 21 22 22 23 23 23 24 25 26 26 26 27 27 28 29 29 31 31 32 33 34 35 35 35 36 36 38 38 38 39 39 40 40 41 41

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2.8.2 Human Risk Perception . . . . . . . . . . . . . . . . . . . . . . . 2.8.3 The Role of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Legal Framework for Coastal Adaptation to Rising Sea Levels in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Overview of Germany’s Legal System . . . . . . . . . . . . . 3.1.1.1 Germany as a Federal State . . . . . . . . . . . . . 3.1.1.2 German Basic Law . . . . . . . . . . . . . . . . . . . 3.1.1.3 European Union Law . . . . . . . . . . . . . . . . . 3.1.1.4 Overview Main Legal Instruments . . . . . . . . 3.1.2 Climate Change Adaptation in Germany (General Overview) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 General Plans on Coastal Protection (Generalpläne Küstenschutz) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Risk Assessment and Hazard Mapping . . . . . . . . . . . . . . . . . . . 3.2.1 Staged Process Under the EU Floods Directive . . . . . . 3.2.2 Flood Hazard and Flood Risk Maps . . . . . . . . . . . . . . . 3.2.3 Periodic Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Summary and Judicial Review . . . . . . . . . . . . . . . . . . 3.3 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Protect Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Responsible Agencies for Coastal Protection . . . . . . . . 3.4.1.1 The Associations for Dike Maintenance (Deichverbände) . . . . . . . . . . . . . . . . . . . . . 3.4.1.2 Lower Saxony, Schleswig-Holstein, Mecklenburg-Western Pomerania, and Bremen . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1.3 Special Responsibilities of the Federal State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Project Approval Procedure (Planfeststellungsverfahren) . . . . . . . . . . . . . . . . . . . . 3.4.2.1 Necessity of a Project Approval Procedure . . 3.4.2.2 The Procedure . . . . . . . . . . . . . . . . . . . . . . 3.4.2.3 Judicial Review . . . . . . . . . . . . . . . . . . . . . 3.4.2.4 Deviating State Provisions . . . . . . . . . . . . . . 3.4.3 Calculation of Dike Dimensions . . . . . . . . . . . . . . . . . 3.4.4 Safeguarding Space for Future Enhancements . . . . . . . 3.4.5 Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.5.1 Responsiblity for Maintenance . . . . . . . . . . . 3.4.5.2 Regulations Concerning the Extent of the Obligation to Maintain . . . . . . . . . . . . . . . . 3.4.6 Dunes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.7 Buffer Zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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42 43 44 53 53 53 54 54 55 56 57 58 59 59 60 61 62 63 64 64 65

66 67 67 67 68 68 69 70 71 72 73 74 74 75 76

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3.4.8

3.5

3.6

3.7

Sand Nourishment . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.8.1 Environmental Impacts and Impairments . . . 3.4.8.2 Further Regulation on Sand Extraction . . . . . Property Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 Erosion and Accretion . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1.1 Federal Waterways . . . . . . . . . . . . . . . . . . . 3.5.1.2 Tidally Influenced Rivers at State Level . . . . 3.5.1.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.2 Expropriation (Enteignung) . . . . . . . . . . . . . . . . . . . . . 3.5.2.1 Federal Building Code . . . . . . . . . . . . . . . . 3.5.2.2 Federal Water Act . . . . . . . . . . . . . . . . . . . . 3.5.2.3 State Expropriation Acts and Federal Water Associations Act . . . . . . . . . . . . . . . . . . . . . 3.5.2.4 Assignment of Ownership (Besitzeinweisung) . . . . . . . . . . . . . . . . . . . 3.5.3 Land Use Regulation . . . . . . . . . . . . . . . . . . . . . . . . . Accommodation Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1 Flood-Resistant Design . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1.1 Specific Municipal Land Use Plans and Construction Regulations . . . . . . . . . . . . . . 3.6.1.2 Dwelling Mounds and Minimum Floor Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1.3 Floodplains . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1.4 General Duty of Care . . . . . . . . . . . . . . . . . 3.6.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Avoidance: Future Development . . . . . . . . . . . . . . . . . . . . . . . 3.7.1 Spatial and Land Use Planning (General) . . . . . . . . . . . 3.7.1.1 Important Terms . . . . . . . . . . . . . . . . . . . . . 3.7.1.2 Spatial Planning Act (ROG) . . . . . . . . . . . . 3.7.1.2.1 Digression: Spatial Planning and Uncertainty . . . . . . . . . . . . 3.7.1.2.2 State-Wide and Regional Land Use Plans . . . . . . . . . . . . . . . . . 3.7.1.2.3 Regional Planning Procedure . . . 3.7.1.3 Relationship of the Different Types of Land Use Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7.1.4 Land Use Planning . . . . . . . . . . . . . . . . . . . 3.7.2 Priority and Reserve Areas . . . . . . . . . . . . . . . . . . . . . 3.7.2.1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7.2.2 Examples . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7.2.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7.3 Rights of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . 3.7.4 Temporary Building Permits . . . . . . . . . . . . . . . . . . . . 3.7.5 Floodplains . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

76 77 78 78 78 79 79 80 80 81 81 83 84 85 86 86 86 87 88 89 90 91 91 92 92 94 95 96 97 98 100 100 101 102 102 103 104

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3.8

3.9

3.10

3.11 3.12

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Retreat Strategies: Existing Development . . . . . . . . . . . . . . . . . 3.8.1 Managed Retreat . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.1.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.1.2 Implementation . . . . . . . . . . . . . . . . . . . . . . 3.8.1.3 Conflicting Property Rights . . . . . . . . . . . . . 3.8.1.3.1 Grandfathered Rights . . . . . . . . 3.8.1.3.2 Expropriation . . . . . . . . . . . . . . 3.8.1.4 Positive Obligations . . . . . . . . . . . . . . . . . . 3.8.1.4.1 Positive Obligations with Regards to Natural Hazards . . . . 3.8.1.4.2 Limitations . . . . . . . . . . . . . . . . 3.8.1.5 Redevelopment of Settlements . . . . . . . . . . . 3.8.1.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.2 Coastal Setbacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.2.1 Existing Setbacks . . . . . . . . . . . . . . . . . . . . 3.8.2.2 Setbacks as Multipurpose Instruments . . . . . Intersecting Legal Regimes . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9.1 Nature Conservation . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9.1.1 Protected Areas . . . . . . . . . . . . . . . . . . . . . 3.9.1.2 Impact Regulation . . . . . . . . . . . . . . . . . . . . 3.9.1.3 Nature Conservation as a Parameter for Coastal Adaptation . . . . . . . . . . . . . . . . . . . 3.9.1.4 Environmental Impact Assessment . . . . . . . . 3.9.1.5 Obligations to Protect Nature . . . . . . . . . . . . 3.9.1.5.1 Obligation to Protect the Natural Foundations of Life Under the Basic Law . . . . . . . . . . . . . . . . 3.9.1.5.2 Obligations Under the Federal Nature Conservation Act . . . . . . 3.9.2 Protection of Historic Monuments . . . . . . . . . . . . . . . . State Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10.2 Liability for Breach of Official Duty (Amtshaftungsanspruch) . . . . . . . . . . . . . . . . . . . . . . . 3.10.2.1 General Requirements . . . . . . . . . . . . . . . . . 3.10.2.2 Individualized Groups of People as Third Parties and Land Use Plans . . . . . . . . . . . . . 3.10.3 Intervention of Equivalent Effect to Expropriation (Enteignungsgleicher Eingriff) . . . . . . . . . . . . . . . . . . 3.10.4 Indirect Expropriation (Enteignender Eingriff) . . . . . . . 3.10.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evaluation and Recommendations . . . . . . . . . . . . . . . . . . . . . . 3.12.1 Focus on Technical Flood Protection . . . . . . . . . . . . . .

104 105 105 106 106 107 107 108 108 109 110 111 111 111 112 112 113 114 115 116 117 117

117 118 119 120 120 120 120 122 123 123 124 124 125 126

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3.12.1.1 3.12.1.2 3.12.1.3

3.12.2

3.12.3

3.12.4

3.12.5 3.12.6

3.12.7

Reliance on Technical Solutions . . . . . . . . . Coordination of Different Actors . . . . . . . . . Limits of Technical Solutions . . . . . . . . . . . 3.12.1.3.1 Factual and Economical Limitations . . . . . . . . . . . . . . . . 3.12.1.3.2 Need for an Integrated Approach . . . . . . . . . . . . . . . . . Different Protection Standards for Different Areas? . . . 3.12.2.1 The Netherlands and the United Kingdom as Role Models? . . . . . . . . . . . . . . . . . . . . . 3.12.2.2 Implementation Possibility in Germany . . . . 3.12.2.2.1 Equality Before the Law . . . . . . 3.12.2.2.2 Protection of Legitimate Expectation (Vertrauensschutz) . . 3.12.2.2.3 Suggested Criteria . . . . . . . . . . Strengthening Adaptation in Planning Law . . . . . . . . . 3.12.3.1 Spatial Planning . . . . . . . . . . . . . . . . . . . . . 3.12.3.2 Land Use Planning . . . . . . . . . . . . . . . . . . . 3.12.3.3 Relocatable Buildings . . . . . . . . . . . . . . . . . 3.12.3.3.1 No Relocation Requirements in Land Use Plans . . . . . . . . . . 3.12.3.3.2 Temporary Building Permit . . . . 3.12.3.3.3 Relocatable Buildings on Shifting Islands . . . . . . . . . . . . Managed Retreat Strategy . . . . . . . . . . . . . . . . . . . . . . 3.12.4.1 Status quo and the Necessity for Enabling Retreat Strategies . . . . . . . . . . . . . . . . . . . . 3.12.4.2 Decision on Managed Retreat . . . . . . . . . . . 3.12.4.3 Suggested Criteria . . . . . . . . . . . . . . . . . . . . 3.12.4.4 Second Dikeline . . . . . . . . . . . . . . . . . . . . . 3.12.4.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . No Voluntary Compensation . . . . . . . . . . . . . . . . . . . . Recommended Changes for Planning and Decision-Making . . . . . . . . . . . . . . . . . . . . . . . . . 3.12.6.1 Long-Term Focus . . . . . . . . . . . . . . . . . . . . 3.12.6.2 More Flexibility for Administrative Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12.6.2.1 Coping with Uncertainties . . . . . 3.12.6.2.2 Adaptable and Flexible Instruments . . . . . . . . . . . . . . . 3.12.6.2.3 Examples . . . . . . . . . . . . . . . . . 3.12.6.3 Fixed Plan Review Intervals . . . . . . . . . . . . 3.12.6.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . Climate Proofing . . . . . . . . . . . . . . . . . . . . . . . . . . . .

126 129 130 130 130 131 132 132 133 134 135 135 136 137 138 139 139 140 140 141 142 143 144 144 144 145 145 146 146 147 148 148 149 149

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3.12.7.1 3.12.7.2

Definition and Purpose . . . . . . . . . . . . . . . . Taking into Account Climate Change in Current Instruments . . . . . . . . . . . . . . . . . 3.12.7.3 Procedural Aspects . . . . . . . . . . . . . . . . . . . 3.12.7.4 Specialist Planning on Climate Change . . . . 3.12.7.5 ‘Stress Test’ . . . . . . . . . . . . . . . . . . . . . . . . 3.12.8 Integrated Coastal Zone Management (ICZM) . . . . . . . 3.12.9 More Uniformity Through Federal or EU Legislation . . 3.13 Chapter Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Legal Framework for Coastal Adaptation to Rising Sea Levels in New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 New Zealand as a State . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Overview of the Legal System . . . . . . . . . . . . . . . . . . 4.1.3 Māori Customary Law and Its Influence on the New Zealand Legal System . . . . . . . . . . . . . . . . . . . . . 4.1.4 Climate Change Adaptation in New Zealand . . . . . . . . 4.2 Background Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 The Resource Management Act 1991 . . . . . . . . . . . . . 4.2.2 Planning Instruments Under the RMA . . . . . . . . . . . . . 4.2.2.1 Terminology . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2.2 Scope and Hierarchy of Planning Instruments Under the RMA . . . . . . . . . . . . 4.2.2.3 New Zealand Coastal Policy Statement (NZCPS) . . . . . . . . . . . . . . . . . . 4.2.2.4 Regional Policy Statements (RPS) . . . . . . . . 4.2.2.5 Regional Plans and Regional Coastal Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2.6 District Plans . . . . . . . . . . . . . . . . . . . . . . . 4.2.2.7 Interim Summary . . . . . . . . . . . . . . . . . . . . 4.2.2.8 Preparation of Policy Statements and Plans . . 4.2.2.9 Appeal to the Environment Court . . . . . . . . . 4.2.3 Resource Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3.1 Types of Resource Consents . . . . . . . . . . . . 4.2.3.1.1 Land Use Consents . . . . . . . . . . 4.2.3.1.2 Subdivision Consents . . . . . . . . 4.2.3.1.3 Coastal Permits . . . . . . . . . . . . 4.2.3.2 Required Information . . . . . . . . . . . . . . . . . 4.2.3.3 Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3.4 Conditions for Resource Consents . . . . . . . . 4.2.4 Classes of Activities . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.5 National Government Guidance for Local Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

150 151 151 152 153 154 155 156 158 169 169 169 171 171 172 173 173 176 176 176 177 180 181 182 183 183 184 185 185 185 185 186 186 187 188 190 190

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Contents

4.3

4.4

4.5

4.6

Risk Assessment and Risk Management . . . . . . . . . . . . . . . . . . 4.3.1 Risk in the NZCPS . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Guidance Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2.1 Sea Level Rise as a Dynamic Parameter . . . . 4.3.2.2 Specific Recommendations . . . . . . . . . . . . . 4.3.2.3 Flexible and Adaptive Management . . . . . . . 4.3.2.4 Transitional Sea Level Rise Values . . . . . . . 4.3.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Risk Assessment in Local Government Planning Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Levels of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4.1 Point of Reference . . . . . . . . . . . . . . . . . . . 4.3.4.2 Examples . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4.3 Decisions on Acceptable Risk by the Environment Court . . . . . . . . . . . . . . . . . . . 4.3.5 Risk Assessment and Resource Consents . . . . . . . . . . . 4.3.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Sources of Revenue of Local Government . . . . . . . . . . 4.4.2 Long-Term Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Annual Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.4 Relationship Between Long-Term and Annual Plans and the RMA Planning Instruments . . . . . . . . . . . . . . . Land Use Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.1 Planning Directives . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.2 Natural Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.3 Avoiding Development . . . . . . . . . . . . . . . . . . . . . . . . 4.5.3.1 New Development and Natural Hazards . . . . 4.5.3.2 Inappropriate Development . . . . . . . . . . . . . 4.5.3.2.1 Relevant Provisions . . . . . . . . . 4.5.3.2.2 The Meaning of ‘Inappropriate’ . . 4.5.3.2.3 Inappropriateness and Natural Hazards . . . . . . . . . . . . . . . . . . 4.5.4 Relocatable Buildings and Structures . . . . . . . . . . . . . . 4.5.5 Tsunami Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.6 Building Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.6.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.6.2 Provisions Concerning Natural Hazards . . . . 4.5.7 Information Instruments Connected to Land Use . . . . . 4.5.7.1 Land Information Memoranda . . . . . . . . . . . 4.5.7.2 Project Information Memoranda . . . . . . . . . . 4.5.8 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Coastal Setbacks and Buffer Zones . . . . . . . . . . . . . . . . . . . . . 4.6.1 Setback Lines and Coastal Hazard Areas . . . . . . . . . . .

192 193 194 194 195 195 196 197 197 198 199 200 200 201 201 201 202 203 203 204 204 205 206 206 206 208 208 208 209 209 210 211 211 212 213 214 214 215 215 215

Contents

4.7

4.8

4.9

4.10

4.11 4.12

xvii

4.6.1.1 Use of Different Setbacks . . . . . . . . . . . . . . 4.6.1.2 Setback Lines as a Controversial Issue . . . . . 4.6.2 Buffer Zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7.1 Property Rights and the Common Law Doctrine of Accretion and Erosion . . . . . . . . . . . . . . . . . . . . . . 4.7.2 Expropriation or Compulsory Acquisition . . . . . . . . . . 4.7.3 Property Rights Under the RMA . . . . . . . . . . . . . . . . . Protect Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1 Structural Protection Works . . . . . . . . . . . . . . . . . . . . 4.8.1.1 Structural Protection Works on Land . . . . . . 4.8.1.2 Structural Protection Works Within the Coastal Marine Area (CMA) . . . . . . . . . . . . 4.8.1.3 Choice, Design, and Dimensions of Structures . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1.3.1 Non-Statutory Guidelines . . . . . 4.8.1.3.2 Site-Specific Expert Reports . . . 4.8.1.4 Soil Conservation and Rivers Control Act 1941 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.2 Dunes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.3 Sand Nourishment . . . . . . . . . . . . . . . . . . . . . . . . . . . Managed Retreat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.9.1 Managed Retreat and Property Rights . . . . . . . . . . . . . 4.9.2 Implementation Strategies . . . . . . . . . . . . . . . . . . . . . . 4.9.2.1 Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.9.2.2 Existing Use Rights . . . . . . . . . . . . . . . . . . 4.9.3 Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.9.4 Planning Instruments on Managed Retreat . . . . . . . . . . Accommodation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10.1 Flood-Resistant Design . . . . . . . . . . . . . . . . . . . . . . . . 4.10.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10.2.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10.2.2 The Earthquake Commission (EQC) . . . . . . 4.10.2.2.1 Introduction . . . . . . . . . . . . . . . 4.10.2.2.2 Coverage . . . . . . . . . . . . . . . . . 4.10.2.2.3 Potential Limitations . . . . . . . . . Choosing a Strategy: The Example of Cooks Beach Coastal Erosion Management Strategy . . . . . . . . . . . . . . . . . . . . . . . . . Obligations to Protect Against Coastal Hazards . . . . . . . . . . . . . 4.12.1 Obligations Under the RMA . . . . . . . . . . . . . . . . . . . . 4.12.2 Positive Obligations Under the Local Government Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

216 217 217 219 219 220 221 222 222 223 224 226 226 227 227 228 228 230 231 232 232 233 234 234 235 236 236 237 237 238 238 239 239 240 242 242 243

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Contents

4.12.3

4.13

4.14

4.15 4.16

Positive Obligations Under the New Zealand Bill of Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intersection with Nature Conservation and Protection of Coastal Landscapes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.13.1 Intersection with Nature Conservation . . . . . . . . . . . . . 4.13.1.1 Adverse Effects on the Environment in Resource Consent Applications . . . . . . . . 4.13.1.2 Synergies: Coastal Vegetation . . . . . . . . . . . 4.13.1.3 Conservation Areas . . . . . . . . . . . . . . . . . . . 4.13.1.4 Special Areas in the Hauraki Gulf . . . . . . . . 4.13.2 Intersection with the Protection of Coastal Landscapes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14.2 Tort of Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14.2.1 Duty of Care . . . . . . . . . . . . . . . . . . . . . . . 4.14.2.1.1 Proximity and Foreseeability . . . 4.14.2.1.2 Policy Considerations . . . . . . . . 4.14.2.2 Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14.2.3 Causation and Remoteness . . . . . . . . . . . . . 4.14.3 Liability for Land Information Memoranda . . . . . . . . . 4.14.3.1 Duty of Care . . . . . . . . . . . . . . . . . . . . . . . 4.14.3.2 Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14.4 Exclusion of Liability . . . . . . . . . . . . . . . . . . . . . . . . . 4.14.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evaluation and Recommendations . . . . . . . . . . . . . . . . . . . . . . 4.16.1 Revising Responsibilities Between Central and Local Governments . . . . . . . . . . . . . . . . . . . . . . . . . . 4.16.1.1 Lack of National Guidance . . . . . . . . . . . . . 4.16.1.1.1 Existing Instruments . . . . . . . . . 4.16.1.1.2 Proposed New Instruments . . . . 4.16.1.2 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.16.1.2.1 Shared Funding Framework . . . 4.16.1.2.2 General Challenges for Funding . . . . . . . . . . . . . . . . . . 4.16.2 Strengthening Local Governments . . . . . . . . . . . . . . . . 4.16.2.1 Clear Mandate for Climate Change Adaptation . . . . . . . . . . . . . . . . . . . . . . . . . 4.16.2.2 Clear Legal Framework on Liability . . . . . . . 4.16.2.2.1 Transferrable Lessons from Australia . . . . . . . . . . . . . . . . . 4.16.2.2.2 Standardizing Land Information Memoranda . . . . . . . . . . . . . . .

244 244 244 245 246 247 247 248 249 250 250 251 251 252 253 254 254 254 255 256 256 257 258 259 259 260 260 261 262 262 263 263 263 264 264

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xix

4.16.3

Planning Instruments . . . . . . . . . . . . . . . . . . . . . . . . . 4.16.3.1 Long-Term Approach and Climate Proofing . 4.16.3.2 Dynamic and Flexible Decision-Making . . . . 4.16.3.3 Changing Jurisdictions in the Coastal Marine Area and the Coastal Environment . . 4.16.3.3.1 Coastal Marine Area . . . . . . . . . 4.16.3.3.2 Coastal Environment . . . . . . . . 4.16.3.4 Shortcomings of Implementing Plan Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 4.16.4 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.16.4.1 Transforming the Role of Insurance . . . . . . . 4.16.4.2 The Earthquake Commission’s Role . . . . . . . 4.16.5 Compensation for Managed Retreat . . . . . . . . . . . . . . . 4.16.5.1 No ‘Bailout’ . . . . . . . . . . . . . . . . . . . . . . . . 4.16.5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . 4.16.5.3 Right of First Refusal . . . . . . . . . . . . . . . . . 4.17 Chapter Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Comparative Aspects and Overall Conclusions . . . . . . . . . . . . . . . . 5.1 Notable Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Coastlines and Coastal Management . . . . . . . . . . . . . . 5.1.2 Responsibility for Coastal Adaptation . . . . . . . . . . . . . 5.1.2.1 Responsibilities in Germany . . . . . . . . . . . . 5.1.2.2 Responsibility in New Zealand . . . . . . . . . . 5.1.2.3 Coinciding and Diverging Responsibilities for Land Use Planning . . . . . . . . . . . . . . . . 5.1.2.4 Sea Level Rise As a Parameter . . . . . . . . . . 5.1.3 Planning Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3.1 Hierarchy and Interrelation of Planning Instruments . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3.2 Bindingness of Planning Instruments . . . . . . 5.1.3.3 Relevant Actors . . . . . . . . . . . . . . . . . . . . . 5.1.3.4 Impact on Individual Projects and Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.4 Local Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.4.1 Parameters for Coastal Adaptation . . . . . . . . 5.1.4.2 Reflection in the Legal Frameworks . . . . . . . 5.1.4.2.1 Devolution of Responsibility . . . 5.1.4.2.2 Theoretical Flexibility of New Zealand’s Planning Instruments . . . . . . . . . . . . . . . 5.1.4.2.3 Uniform Coastal Adaptation in Germany . . . . . . . . . . . . . . . 5.1.4.2.4 Summary . . . . . . . . . . . . . . . . .

265 265 266 267 267 267 268 269 269 270 271 271 272 272 273 274 279 280 280 281 281 281 282 282 283 283 284 285 285 286 286 287 287

288 288 289

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5.1.5

5.2

5.3 5.4

5.5

Distribution of Funding for Coastal Adaptation . . . . . 5.1.5.1 Germany . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.5.2 New Zealand . . . . . . . . . . . . . . . . . . . . . . 5.1.5.3 Linkage to Responsibility for Coastal Adaptation . . . . . . . . . . . . . . . . . . . . . . . . 5.1.6 Differences in Coastal Hazard Mapping . . . . . . . . . . . 5.1.6.1 Differences in Coastal Flood and Erosion Risk Assessment . . . . . . . . . . . . . . . . . . . . 5.1.6.2 Use in Planning Law and Judicial Review . Distinction Between Land Use Regulation and Expropriation . . 5.2.1 Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1.1 Formal Distinction and Consequences . . . . 5.2.1.2 Wide Discretion of Planning Authorities . . 5.2.2 New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2.1 Compulsory Acquisition . . . . . . . . . . . . . . 5.2.2.2 Land Use Regulation . . . . . . . . . . . . . . . . 5.2.3 Situational Characteristic of Real Property . . . . . . . . . 5.2.4 Interim Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . State Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intersection of Coastal Adaptation and Nature Conservation . . 5.4.1 Environmental Impact Assessments and Assessment of Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Synergy and Conflict . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2.1 Germany . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2.2 New Zealand . . . . . . . . . . . . . . . . . . . . . . 5.4.2.3 Untapped Potential of Multipurpose Adaptation . . . . . . . . . . . . . . . . . . . . . . . . Continued Challenges and Overall Remarks . . . . . . . . . . . . . . 5.5.1 Introduction and Section Overview . . . . . . . . . . . . . . 5.5.1.1 The Need for Long-Term As Well As Flexible Coastal Adaptation . . . . . . . . . . . . 5.5.1.2 Current Reflection in the Legal Frameworks . . . . . . . . . . . . . . . . . . . . . . . 5.5.1.3 Overview . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Coastal Adaptation As No and Low Regret Actions . . 5.5.3 Robust Decision-Making Approach for Climate Change Adaptation . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.4 Existing Instruments Not Used to Full Potential . . . . . 5.5.4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.4.2 German Particularities . . . . . . . . . . . . . . . . 5.5.4.3 The Role of Tradition and Summary . . . . . 5.5.5 Importance of Mandatory Consideration of Sea Level Rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.5.1 Specific Requirements . . . . . . . . . . . . . . . .

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289 289 290

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291 291 292 292 292 292 293 293 295 296 297 297 298

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5.5.5.2

Elected Bodies . . . . . . . . . . . . . . . . . . . . . . 5.5.5.2.1 Short-Term Perspective . . . . . . . 5.5.5.2.2 Manifold Concerns and Responsibilities . . . . . . . . . . . . 5.5.6 Controversial Decisions, Public Push-Back and the Call for Protection . . . . . . . . . . . . . . . . . . . . . 5.5.7 Paradigm Shift . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.7.1 Proactive Adaptation . . . . . . . . . . . . . . . . . . 5.5.7.2 Paradigm Shift Away from Exclusively Technical Solutions . . . . . . . . . . . . . . . . . . . 5.5.8 Opting for Retreat . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.8.1 Existing Obstacles . . . . . . . . . . . . . . . . . . . 5.5.8.2 Decision to Retreat and Compensation As Two Different Issues . . . . . . . . . . . . . . . 5.5.9 Protection Funded by Public Money . . . . . . . . . . . . . . 5.5.10 Avoiding Lock-Ins and Preserving Options for Future Generations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.11 Coastal Adaptation and Equity/Climate Justice . . . . . . . 5.6 Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

306 307 309 309 309 310 311 311 312 313 314 316 317

. . . . . . . .

321 321 322 323 323 324 324 325

Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal and State Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bremen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hamburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lower Saxony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mecklenburg-Western Pomerania . . . . . . . . . . . . . . . . . . . . . . Schleswig-Holstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutes (Satzungen) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State Wide and Regional Land Use Plans . . . . . . . . . . . . . . . . . . . Generalplans on Coastal Protection . . . . . . . . . . . . . . . . . . . . . . . .

327 327 327 327 328 328 328 328 329 329 330 330 330

6

Concluding Remarks and Outlook . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Coastal Adaptation in a Wider Context . . . . . . . . . . . . . . . . . . 6.2 Transition Towards More Resilient Communities . . . . . . . . . . 6.3 The Need for Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Remaining Need for Mitigation . . . . . . . . . . . . . . . . . . . . . . . 6.5 Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Coastal Adaptation: A Task for Generations . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

306 306

xxii

Contents

New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Planning Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Union Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . .

331 331 331 332 332 332 332 332

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Consitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Administrative Court . . . . . . . . . . . . . . . . . . . . . . . . . . . Higher Administrative Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . Administrative Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . High Court (Including Former ‘Supreme Court’) . . . . . . . . . . . . . Environment Court and Former Planning Tribunal . . . . . . . . . . . . Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Justice of the European Union . . . . . . . . . . . . . . . . . . . . European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

333 333 333 334 334 335 335 336 336 336 336 337 339 339 339 339

Annex I: Important Translated Terms . . . . . . . . . . . . . . . . . . . . . . . . .

341

Annex II: Terminology of the Main Coastal Adaptation Actions . . . . .

343

Abbreviations

BGH Bremen BVerfG BVerwG cl CMA EU EUR f ff Guidance Manual Hamburg ICZM IPCC NZCPS NZD OVG RCP RMA RPS s sch UK US VG VGH

Bundesgerichtshof (Federal Supreme Court) Freie Hansestadt Bremen (Free Hanseatic City of Bremen) Bundesverfassungsgericht (Federal Constitutional Court) Bundesverwaltungsgericht (Federal Administrative Court) Clause Coastal marine area European Union Euro And the following page or paragraph And the following pages or paragraphs Coastal Hazards and Climate Change: Guidance for Local Government Freie und Hansestadt Hamburg (Free and Hanseatic City of Hamburg) Integrated coastal zone management Intergovernmental Panel on Climate Change New Zealand Coastal Policy Statement New Zealand dollar Oberverwaltungsgericht (Higher Administrative Court) Representative Concentration Pathway Resource Management Act Regional policy statement Section Schedule United Kingdom United States Verwaltungsgericht (Administrative Court) Verwaltungsgerichtshof (Higher Administrative Court)

xxiii

Chapter 1

Introduction

Not protecting cities such as Amsterdam, Rotterdam, and London during the 21st century is not an option. On the other hand, there are coastal areas such as small islands where protecting against several meters of sea level rise in the long term is not a viable option. Failing to mitigate, thus increasingly commits us to a world where densely populated areas lock into a trajectory of increasingly costly hard defenses and rising residual risks on the one hand and less densely populated areas being abandoned on the other hand.1

1.1 1.1.1

Setting the Scene Climate Change in the Coastal Context

This citation from the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) illustrates the severity of impacts, challenges, and far-reaching decisions that coastal communities around the world face in the light of a changing climate and rising sea levels. Every part of the world is expected to experience the impacts of climate change. The range of these predicted consequences is broad and includes increasing temperatures, heat waves, droughts, extreme precipitation, and rising sea levels.2 Hence, climate change and its adverse effects are considered a “common concern of humankind.”3 Despite the recognition as a common concern, mitigation efforts are not on the top of the agendas around the world; in fact, emissions increased in 20174 and 2018.5 Present efforts to reduce

1

Wong et al. (2014), p. 395. Field et al. (2014), p. 59 f. 3 United Nations Framework Convention on Climate Change: UNFCCC, Preamble. 4 International Energy Agency (2018), p. 3 f. 5 Tollefson (2018), p. 2141. 2

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5_1

1

2

1 Introduction

greenhouse gas emissions are considered insufficient in speed and depth to meet the targets set by the Paris Agreement.6 Even if the 1.5
C goal under the Paris Agreement7 is achieved, current research suggests that the consequences of climate change would already be disruptive under this scenario.8 Recent studies discovered evidence for anthropogenic influence on extreme temperature events and, although to a more limited extent, on extreme precipitation events like droughts and storms.9 Furthermore, other research has linked partial costs related to extreme weather events to climate change. For New Zealand, costs attributable to climate change were estimated at 840 million NZD10 for a 10-year period (2007–2017). However, the scope of the assessment was limited to privately insured damages due to extreme rainfall-related floods and economic losses associated with droughts. Thus, costs caused by climate change are likely much higher than the estimate.11 Recent extreme events around the world may also have been exacerbated by climate change. For the year 2018 alone the list of extreme events includes: a heat wave in Europe,12 the Hurricanes Florence and Michael at the US coast,13 the Super Typhoon Mangkhut in the Philippines and in China,14 and the heavy rain and flooding in Italy.15 These weather-related disasters claimed lives and caused massive destruction. Since such extreme events are likely to increase as a result of climate change,16 they are sometimes considered to be ‘a glimpse into the future’.

1.1.2

The Need for Coastal Adaptation

Both the inevitability of climate change and the severity of the potential impacts make climate change adaptation increasingly important. Sea level rise is almost certain and coastal areas already experience increasing coastal erosion and higher

6

Climate Transparency (2017), pp. 6, 16 and 18. Paris Agreement, Art. 2 (1) (a). The provision sets the goal to holding the increase of global average temperature well below 2
C above pre-industrial levels and to pursue efforts to limit the increase to 1.5
C above pre-industrial levels. The latter is therefore already the more ambitious goal. 8 See for coastal areas: Nicholls et al. (2018) and Brown et al. (2018). See also below: Sect. 2.1. 9 Stott et al. (2016), especially pp. 23, 25 and 37; Baker et al. (2018), especially pp. 604 and 606. 10 This equals around 467million EUR based on the exchange rate on 10 of April 2020 (1 NZD ¼ 0.56 €). 11 New Zealand Climate Change Research Institute – Victoria University of Wellington and National Institute of Water & Atmospheric Research Ltd (2018), p. 17. The amount is split between 120 million NZD related to floods and 720 million NZD to droughts. 12 BBC (2018). 13 CNN (2018). 14 The Washington Post (2018). 15 The New York Times (2018). 16 See below: Sect. 2.2.1. 7

1.1 Setting the Scene

3

storm surges.17 Traditionally, adaptation to coastal hazards mostly took place by protecting developed areas through hard defences,18 like the extensive dikeline on the German and Dutch North Sea coast. Although coastal adaptation is nothing new, rising sea levels will question the economic or technical feasibility of coastal defences as illustrated by the introductory quote. Adapting to changes in sea level will, therefore, require coastal communities to consider and implement different strategies. This includes addressing the uncertainties of velocity and magnitude of sea level rise. Adapting to rising sea levels will entail hard decisions. Controversial questions need to be answered: who should fund coastal defences? The coastal frontages? The coastal communities? The whole state? Even more controversial seems a decision to retreat from the coast by giving up land and existing coastal development since this displaces people. Despite its disruptiveness, the importance of retreat strategies increases. In some areas retreat may be the only adequate means to guarantee the safety of a community, protecting it from even more disruptive damage, e.g. through storm surge or coastal erosion. Consequently, many coastal communities will face fundamental changes in the long-term. Decisions made today will shape the coast of tomorrow: either locking in unfavourable decisions or creating a resilient community able to cope with the impacts of rising sea levels. In addition, coastal adaptation can be a chance for other changes that improve the life quality of a city.

1.1.3

Adaptation in a Broader Sense

Adjusting to changing circumstances of the environment is nothing new as the aforementioned tradition of building dikes at the North Sea shows. In fact, changes requiring some form of adaptation are common. In a broader sense, adaptation takes place frequently on an individual basis: moving to a new city, starting a new job, or having a child are all examples of changing circumstances that require a change in behavior, which is a part of adaptation. Arguably, adapting to changing circumstances is part of our reality. Surely, adapting to rising sea levels is a much more complex task than moving into a new flat; however, it is not less necessary.

1.1.4

The Role of Law

Societies around the world need to address how to cope with a changing climate that also alters the environment. Some of the projected changes are far-reaching. Sea

17 18

See below: Sect. 2.1. Klein et al. (2001), p. 533.

4

1 Introduction

level rise, for instance, does not only put many coastal communities at risk but may submerge complete nations. Therefore, the need for an adaptation strategy could not be more evident. The European Union, for instance, recognizes the necessity to start adapting to climate change.19 Law as a core instrument of society not only governs all state action but also sets the framework for private individuals. Hence, law plays a key role in any adaptation to climate change. Binding regulations can enforce, enable or impede adaptation. Successful implementation of coastal adaptation, therefore, requires a facilitating environment set by the legal framework. For this reason, the purpose of this research is to analyze if and to what extent coastal adaptation is already enabled by current legal frameworks, taking Germany and New Zealand as examples.

1.2

Definitions

Before engaging in a detailed analysis of the two legal systems chosen as examples, the following section clarifies some of the key terms and concepts for coastal adaptation to climate change.

1.2.1

Climate and Climate Change

Climate in a narrow sense refers to the average weather (e.g. temperature, precipitation, and wind) over a longer period of time, e.g. 30 years. In a wider sense, climate is used to describe the state of the climate system, consisting of the atmosphere, hydrosphere, cryosphere, lithosphere, and biosphere. The climate system is influenced by internal dynamics and external impacts like volcanic eruptions or changing compositions in the atmosphere. The latter is also influenced by greenhouse gases.20 In accordance with the United Nations Framework Convention on Climate Change (UNFCCC), the thesis uses the term climate change to refer to anthropogenic climate change. Article 1 of the aforementioned convention contains the following definition: “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.”

19 20

Commission of the European Communities (2009), p. 3. Intergovernmental Panel on Climate Change (IPCC) (2013), p. 1450 f.

1.2 Definitions

1.2.2

5

Climate Change Mitigation and Adaptation

While mitigation refers to the reduction of greenhouse gases causing climate change,21 adaptation can be defined as “the process of adjustment to actual or expected climate and its effects”.22 In other words: mitigation reduces the impacts of climate change, adaptation reduces their severity.23 Adaptation includes increasing robustness and resilience. While robustness is the ability to cope with a broader range of events, resilience refers to the ability to respond and recover from events.24 Options and means to adapt can vary significantly. The ability of a state or a community to respond to the impacts of climate change is called adaptive capacity.25 However, some adaptation actions may increase the vulnerability to the impacts of climate change in the future. This is referred to as maladaptation.26 Post-disaster funding programs that help to rebuild communities without promoting adaptation or resilience are one example since the rebuilt community remains at the same risk as before the catastrophe.27 Maladaptation can be reduced through low-regret strategies. This term refers to measures that provide benefits under current climate change and a range of future climate change scenarios. An example is the restoration of coastal wetlands that serves nature conservation and enhances coastal adaptation.28

1.2.3

Vulnerability and Resilience

The terms of vulnerability and resilience relate to risks and hazards in general. Vulnerability is the “predisposition to be adversely affected” and reflects the sensitivity to harm as well as the (lack) of capacity to adapt.29 While vulnerability relates to risk exposure, resilience refers to the ability to address the risk. Resilience can be defined as “the capacity of social, economic, and environmental systems to cope with a hazardous event or trend or disturbance, responding or reorganizing in ways that maintain their essential function, identity,

21

Intergovernmental Panel on Climate Change (IPCC) (2013), p. 1458. Intergovernmental Panel on Climate Change (IPCC) (2014), p. 1758. 23 Field et al. (2014), p. 94. 24 Farber (2011), p. 360. 25 Intergovernmental Panel on Climate Change (IPCC) (2014), p. 1758. 26 Intergovernmental Panel on Climate Change (IPCC) (2014), p. 1769. 27 Glavovic and Smith (2014), p. 4. 28 Lal et al. (2012), p. 342. 29 Field et al. (2014), p. 39. 22

6

1 Introduction

and structure, while also maintaining the capacity for adaptation, learning, and transformation.”30

1.2.4

Hazard, Risk and Hazard Risk

Hazards can be described as physical events, trends or impacts that can have negative consequences like the loss of life or property.31 Coastal erosion and coastal floods are hazards specific to coastal areas.32 Risk, on the other hand, is the probability of occurrence of hazardous events resulting from the interaction of vulnerability, exposure, and hazard.33 The severity of a storm surge, for instance, is an important but not the only parameter for coastal flood risk. Other determining factors include: proximity to the coast, land elevation, and the existence of protection works. The combination of both terms—hazard risk—is used to define the source of a risk.34 Thus coastal hazard risk refers to risk attributed to coastal hazards, i.e. coastal flood risk and coastal erosion risk.

1.2.5

Coastal Zone

Rising sea levels will affect coastal zones around the world. However, defining the coastal zone as the spatial scope of this thesis is not straightforward. Although the “coast” can be defined as “the land adjoining or near the sea”35 this definition is too vague to identify the extent of the coastal zone. The definition, however, suggests that the coast is more than the area where land and sea directly intersect by using the term “near the sea”. Similarly, the definition of coastal ecosystems refers to the areas where land is influenced by the sea and vice versa, e.g. beaches or estuaries.36 Since ecological processes extend beyond the narrow zone of direct land-sea influence, a definition of coastal zone based on coastal ecosystems includes parts of the coastal hinterland and the sea.37 For the purpose of this thesis, the coastal zone includes all areas that are influenced by the tides or would be influenced by them if it were not for coastal defences. Using such a wide definition ensures that all areas that are

30

Field et al. (2014), p. 40. Intergovernmental Panel on Climate Change (IPCC) (2014), p. 1766. 32 See below: Sect. 2.2. 33 Intergovernmental Panel on Climate Change (IPCC) (2014), p. 1772. 34 Lawrence et al. (2018), p. 100. 35 Oxford Living Dictionaries English ‘Coast’. 36 Iglesias-Campos et al. (2015), p. 30. 37 Glavovic et al. (2014), p. 5. 31

1.3 On the Comparative Aspect

7

potentially affected by coastal hazards are included in the analysis. Due to the dynamic interaction of land and the impact of rising sea levels, the boundaries of the coastal zone will change in the future, in most places moving further landward.38

1.2.6

Coastal Hazards

The coastal hazards of coastal flooding and coastal erosion are expected to be exacerbated by rising sea levels and hence play an important role in coastal adaptation. Coastal flooding occurs when normally dry land is temporarily inundated by sea water.39 While coastal flooding is a temporary, abrupt event, coastal erosion is more gradual. Coastal erosion can be defined as “the encroachment upon the land by the sea”, resulting in loss of land and undermining coastal defences like dunes or dikes.40 Climate change is expected to change parameters that influence coastal erosion, such as the sea level, currents, winds, and waves.41

1.3

On the Comparative Aspect

1.3.1

Reasons for Choosing Germany and New Zealand As Examples

Coastal countries around the world are facing rising sea levels, and accordingly, coastal adaptation is an important issue for all of them. Germany and New Zealand were chosen as examples because they share enough similarities to make a parallel analysis feasible. At the same time, the existing differences between both countries promise valuable insights by contrasting the two legal systems.

1.3.1.1

Factual Similarities and Differences

Apart from the fact that both countries have a coastline and face challenges because sea levels are rising, Germany and New Zealand are both industrialized nations. Due to their financial resources, technical knowledge, and existing efficient institutions, they are in a better position to cope with climate change than poorer nations.42 In

38

Wong et al. (2014), p. 376. Definition in Federal Water Act: WHG, § 72 cl. 1. 40 European Commission, p. 4. 41 Wong et al. (2014), p. 376. 42 Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU) (2006), p. 54. 39

8

1 Introduction

other words, their adaptive capacity is higher. Unlike some countries like the Maldives, both states are not threatened to be completely submerged as a result of rising sea levels. Both countries have extensive higher, even mountainous areas, which are not influenced by the sea. Hence, the adaptation context and possibilities are also different from the mainly flat, low-lying Netherlands, where relocating to higher areas away from the coast, for example, is less likely to be an option. The differences between both countries relate to the coastline. In New Zealand, the coast varies from steep cliffs to low-lying areas. While New Zealand’s diverse coastline is sparsely protected, the low-lying German North Sea coast is characterized by a continuous dike line. The German Baltic Sea coast is in between the two extremes with its variable, not entirely protected coastline. Furthermore, the density of population within the countries varies greatly. In 2018, Germany had a population density of 232 people per km2,43 while New Zealand had a significantly less population density of 18 people per km2.44 As a result, the factual and social setting of adaptation in both countries is different.

1.3.1.2

Institutional Differences

More important than topographic or demographic differences are the divergent political structures and responsibilities for coastal management and coastal adaptation for a legal analysis. Responsibilities in New Zealand are characterized by devolution to the local authorities with almost no involvement of the central government. On the contrary, in Germany, the states are the main actors but they receive substantial funding from the federal government. Moreover, New Zealand has a much stronger focus on land use planning in order to cope with coastal hazards than Germany, which can be described as a strongly protective state. In addition, because of its young history of settlement, New Zealand does not have a tradition of building defences as it exists at the German North Sea coast. This also creates different preconditions for adaptation. Another distinction that makes a comparison interesting relates to the protection of fundamental rights, in particular the protection of property rights, which play an important role in the context of the thesis. German law offers strong constitutional protection of fundamental rights, which is binding for all state powers, including the legislative. In New Zealand, on the other hand, fundamental rights are not protected by a supreme statute and Parliament is not bound by any constitution. Hence, the restrictions on state action are different, which also impacts adaptation action and adaptation regulation. Due to the aforementioned differences, looking at how both countries and their legal systems currently enable and address coastal adaptation to rising sea levels

43

This results from an estimated population of 83 million people living on 357,582 km2 of land. See: Statistische Ämter des Bundes und der Länder (2020). 44 This results from an estimated population of 4.9 million people living on 271.000 km2. See: Statistics New Zealand Population.

1.3 On the Comparative Aspect

9

promises valuable insights. Furthermore, some challenges like the uncertainty of magnitude and velocity of sea level rise, the flexibility of adaptation decisions and long-term planning for adaptation, are comparable, if not identical in both jurisdictions.

1.3.2

Comparative Aspects of This Thesis

Despite the focus on two different legal systems, this thesis does not aim to provide a classic comparative analysis. Neither does it take a narrow view on one legal institution in particular nor does it look at the general characteristics of the law of both countries as a macro-comparison would do. Differences in geology and settlement structure make a classic comparative study unfeasible since the physical geographical conditions are not alike enough. In a more general context, however, similarities like the need for adaptation become apparent. Responding to these circumstances, this work aims to analyze the overall concept of coastal adaptation in Germany and New Zealand. Henceforth, the analysis focuses on solutions to rising sea levels rather than conducting scrutinized research on a single adaptation action. The fact that rising sea levels will have many different impacts on the coasts around the world and adaptation to it does not have a uniform solution, supports taking a broader approach. Looking at coastal adaptation in response to rising sea levels is, therefore, the common point of reference. In the terminology of comparative law, this is the tertium comparationis.

1.3.2.1

The Functional Method and the Presumption of Similarity

Without going into detail on the methods of comparative law,45 this work uses the functional method under the assumption that where problems are universal, the function can serve as tertium comparationis.46 The thesis, therefore, looks at how adaptation strategies are reflected in the laws of Germany and New Zealand (or why not), bearing in mind that sometimes provisions can assume a function that was not originally intended. The latter reflects one of the main assumptions of the functional method: determining the function of a legal institution objectively, not by the purpose of its creators, i.e. understanding law in terms of the needs it meets. By focusing on how different elements respond to the same problem, the functional method enables a comparison of civil and common law despite their doctrinal difference.47

45

See generally on comparative law and its methods: Samuel (2014). Esser (1974), pp. 356–359. 47 Michaels (2008), pp. 350 and 356 f. 46

10

1 Introduction

Comparative works in the field of private law often work with the concept of praesumptio similitudinis, the presumption of similarity of practical results.48 Most of the analyzed regulations, however, fall into the area of public law. Except for matters like epidemic control or maintenance of roads, public law, on the other hand, is often governed rather by political issues than by practical considerations. Therefore, the aforementioned presumption cannot apply.49 There is also no assumption that similar factual problems exist since issues related to the creation of institutions or state organs, the judicial review of decisions and supremacy of constitutional law are not self-evident.50 Although some topics covered by this analysis, like the construction and maintenance of protection works, arguably fall into the category of issues determined by practical considerations, this does not apply to e.g. land use planning or restricting property rights. Therefore, the presumption of similarity is not used.

1.3.2.2

Comparison of Overall Concepts

In a comparative work, the last chapter usually compares the analyzed legal systems. To a limited extent, this work will address some of the differences and similarities and provide explanations with regard to the political, institutional and legal traditions of both examined countries. The focus, however, lies on the overall concepts for coastal adaptation rather than specific aspects or comparing regulations addressing a particular adaptation action, e.g. the law relevant for building a seawall or restricting land use in coastal areas. For the reasons given above, a more general view promises better insights than a detailed comparison. Contrasting the two systems reveals the underlying characteristics of each system and provides a more comprehensive view of the two legal systems. In the sense of getting insights that an analysis of each legal system would not have allowed to gain,51 this work is a comparative one. On the other hand, the thesis takes a more extensive approach and incorporates issues that are not considered at all or not to the extent or in the way necessary in either of both legal frameworks.

48

Zweigert and Kötz (1996), p. 39; Zweigert and Kötz (1998), p. 40. Bernhardt (1964), p. 432. 50 Strebel (1964), p. 420. 51 Samuel (2014), p. 11. Interestingly, the author applies a definition taken from comparative literature to comparative law. 49

1.4 Scope of the Thesis

1.4 1.4.1

11

Scope of the Thesis Purpose of This Work

The importance of law as an enabling framework for coastal adaptation was established above. Thus, the main purpose of this investigation is to examine whether and to what extent the laws of Germany and New Zealand currently enable coastal adaptation to rising sea levels. To facilitate this analysis, some key definitions were introduced. Before exploring if and to what extent both legal systems already enable coastal adaptation, an introduction to the scientific background on sea level rise and its impacts is given, followed by an overview of different coastal adaptation strategies and actions. The chapter on the scientific background also summarizes general challenges and illustrates the importance of law. The two main chapters focus on the respective legal regulations of Germany and New Zealand concerning coastal adaptation. Part of these two chapters is an analysis of the effect of coastal adaptation on nature conservation, examining colliding interests as well as the potential for synergy. Furthermore, potential liability for insufficient coastal adaptation is addressed as determining factor for adaptation action of both states. Apart from the analysis of the current legal framework, each chapter includes a summary and recommendations on how the framework could be improved. Although both chapters address the same issues, they are not entirely congruent due to existing differences. Finally, a (partly) comparative analysis presents the key findings and illustrates the differences, similarities and the insights gained by exploring both legal systems. This also includes challenges that both countries still have to address. The last chapter will address how coastal adaptation relates to overarching issues like the transition towards resilient communities and climate change mitigation.

1.4.2

Limitations

Although the scope of the thesis is a broad one, it cannot cover every possible aspect of climate change adaptation at the coast. Climate change will have many different impacts on coastal regions, like rising temperatures and changes in rainfall patterns. Considering all those potential impacts in depth would be beyond the scope of this thesis. Limiting the scope to rising sea levels and the adaptation to this particular consequence provides the opportunity for a more thorough analysis. Yet, this thesis does not claim to be a comprehensive assessment of all possible adaptation options to rising sea levels since the options are manifold. The focus lies on sea level rise exacerbating coastal flooding and coastal erosion and does not address other consequences like rising groundwater tables or increasing drainage problems. Furthermore, this study does not address coastal adaptation with regards to agriculture in particular but concentrates on development. These issues are important but beyond the scope of this Ph.D. thesis.

12

1 Introduction

Clearly, the defined scope also excludes fluvial floods. This is also due to the fact that coastal regions experience different impacts, e.g. storm floods and short-term changes of the water level and have different safety systems than systems only concerned with fluvial floods.52 Since the topic is transversal, the thesis provides an overview highlighting the most important aspects of coastal adaptation to climate change rather than analyzing every legal instrument in depth. Moreover, some important overall issues cannot be addressed at all, like the participation of stakeholders or issues concerning the management of coastal catastrophes. Lastly, this thesis does not provide a final or universal answer about how to adapt to rising sea levels at the coast or how to provide an adequate legal framework for this. Trying to give such an answer would not only be pretentious but impossible to do because coasts around the world differ greatly from one another. However, the thesis aims to encourage discussions about coastal adaptation strategies, which will become necessary for the future of coastal communities in the long-term.

References Baker, H. S., Millar, R. J., Karoly, D. J., Beyerle, U., Guillod, B. P., Mitchell, D., et al. (2018). Higher CO2 concentrations increase extreme event risk in a 1.5
C world. Nature Climate Change, 8, 604–608. BBC. (2018). Europe heatwave: High temperatures but respite expected. Retrieved March 19, 2020, from https://www.bbc.com/news/world-europe-45089709 Bernhardt, R. (1964). Eigenheiten und Ziele der Rechtsvergleichung im öffentlichen Recht. ZaöRV, 24, 431–452. Brown, S., Nicholls, R. J., Goodwin, P., Haigh, I. D., Lincke, D., Vafeidis, A. T., et al. (2018). Quantifying land and people exposed to sea-level rise with no mitigation and 1.5
C and 2.0
C rise in global temperatures to year 2300. Earth’s Future, 6, 583–600. Climate Transparency. (2017). Brown to green: The G20 transition to a low-carbon economy, Berlin. CNN. (2018). 2018 Atlantic Hurricane season fast facts. Retrieved March 19, 2020, from https:// edition.cnn.com/2018/05/10/us/2018-atlantic-hurricane-season-fast-facts/index.html Commission of the European Communities. (2009). Adapting to climate change: Towards a European framework for action: White Paper, Brussels. Esser, J. (1974). Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts: Rechtsvergleichende Beiträge zur Rechtsquellen- und Interpretationslehre, Untersuchungen zur vergleichenden allgemeinen Rechtslehre und zur Methodik der Rechtsvergleichung. Tübingen: Mohr. European Commission Living with Coastal Erosion in Europe: Sediment and Space for Sustainability. Eurosion, Luxembourg. Farber, D. A. (2011). The challenge of climate change adaptation, learning from national planning efforts in Britain, China, and the USA. Journal of Environmental Law, 23, 359–382. Field, C. B., Barros, V. R., Mach, K.J., Mastrandrea, M. D., van Aalst, M., Adger, W. N., et al. (2014). Technical summary. In C. B. Field et al. (Eds.), Climate change 2014 – Impacts,

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adaptation, and vulnerability: Working group II contribution to the fifth assessment report of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press. Glavovic, B. C., & Smith, G. P. (2014). Introduction: Learning from natural hazards experience to adapt to climate change. In B. C. Glavovic & G. P. Smith (Eds.), Adapting to climate change: Lessons from natural hazards planning. Dordrecht: Springer. Glavovic, B. C., Kelly, M., Kay, R., & Travers, A. (2014). Introduction. In B. C. Glavovic et al. (Eds.), Climate change and the coast: Building resilient communities (pp. 3–28). Boca Raton: CRC Press. Iglesias-Campos, A., Meiner, A., Bowen, K., & Ansong, J. O. (2015). Coastal population and land use changes in Europe, challenges for a sustainable future. In J. Baztan et al. (Eds.), Coastal zones: Solutions for the 21st century (pp. 29–49). Burlington: Elsevier Science. Intergovernmental Panel on Climate Change (IPCC). (2013). Annex III: Glossary. In IPCC, 2013: Climate change 2013: The physical science basis.: Contribution of working group I to the fifth assessment report of the intergovernmental panel on climate change. Cambridge: Cambridge University Press. Intergovernmental Panel on Climate Change (IPCC). (2014). Annex II, glossary. In V. R. Barros et al. (Eds.), Climate change 2014: Impacts, adaptation, and vulnerability. Part B: Regional aspects. Contribution of working group II to the fifth assessment report of the intergovernmental panel on climate change (pp. 1757–1776). Cambridge: Cambridge University Press. International Energy Agency. (2018). Global Energy & CO2 Status Report 2017. Klein, R. J., Nicholls, R. J., Ragoonaden, S., Capobianco, M., Aston, J., & Buckley, E. N. (2001). Technological options for adaptation to climate change in coastal zones. Journal of Coastal Research, 17, 531–543. Lal, P. N., Mitchell, T., Aldunce, P., Auld, H., Mechler, R., Miyan, A., et al. (2012). National systems for managing the risks from climate extremes and disasters. In Managing the risks of extreme events and disasters to advance climate change adaptation: A special report of working groups I and II of the intergovernmental panel on climate change (pp. 339–392). Cambridge: Cambridge University Press. Lawrence, J., Bell, R., Blackett, P., Stephens, S., & Allan, S. (2018). National guidance for adapting to coastal hazards and sea-level rise, anticipating change, when and how to change pathway. Environmental Science Policy, 82, 100–107. Michaels, R. (2008). The functional method of comparative law. In M. Reimann & R. Zimmermann (Eds.), The Oxford handbook of comparative law (pp. 339–382). Oxford: Oxford University Press. New Zealand Climate Change Research Institute – Victoria University of Wellington and National Institute of Water & Atmospheric Research Ltd. (2018). Estimating financial costs of climate change in New Zealand: An estimate of climate change-related weather event costs. Nicholls, R. J., Brown, S., Goodwin, P., Wahl, T., Lowe, J., Solan, M., et al. (2018). Stabilization of global temperature at 1.5
C and 2.0
C, implications for coastal areas. Philosophical Transactions. Series A, Mathematical, Physical, and Engineering Sciences, 376, 20160448. Oxford Living Dictionaries English ‘Coast’. Retrieved March 19, 2020, from https://en. oxforddictionaries.com/definition/coast Samuel, G. (2014). An introduction to comparative law theory and method, European Academy of legal theory monograph series. Oxford: Hart Publishing. Schüttrumpf, H., Grimm, C., Bachmann, D., Fortmann, J., & Kutschera, G. (2014). HoRisK-A Schlussbericht Hochwasserrisikomangement für den Küstenraum: Versagen von Küstenschutzanlagen und Schäden, Aachen. Statistics New Zealand Population. Retrieved March 19, 2020, from https://www.stats.govt.nz/ topics/population Statistische Ämter des Bundes und der Länder. (2020). Gebiet und Bevölkerung – Fläche und Bevölkerung. Retrieved March 19, 2020, from https://www.statistikportal.de/de/bevoelkerung/ flaeche-und-bevoelkerung

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Stott, P. A., Christidis, N., Otto, F. E., Sun, Y., Vanderlinden, J. P., van Oldenborgh, G. J., et al. (2016). Attribution of extreme weather and climate-related events. Wiley Interdisciplinary Reviews: Climate Change, 7, 23–41. Strebel, H. (1964). Vergleichung und vergleichende Methode im öffentlichen Recht. ZaöRV, 24, 405–430. The New York Times. (2018). Venice flooding is worst in a decade, severe weather in Italy kills at least 11. Retrieved March 19, 2020, from https://www.nytimes.com/2018/10/30/world/europe/ venice-floods-italy.html The Washington Post. (2018). Typhoon Mangkhut was the strongest storm this year, It ravaged Hong Kong and the Philippines. Retrieved March 19, 2020, from https://www.washingtonpost. com/weather/2018/09/19/typhoon-mangkhut-was-strongest-storm-this-year-it-ravaged-hongkong-philippines/?noredirect¼on&utm_term¼.bf027ca2a5b3 Tollefson, J. (2018). Global industrial carbon emissions to reach all-time high in 2018. Nature, 10. https://www.nature.com/articles/d41586-018-07666-6 Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU). (2006). Die Zukunft der Meere - zu warm, zu hoch, zu sauer: Sondergutachten, Berlin. Wong, P. P., Losada, I. J., Gattuso, J. P., Hinkel, J., Khattabi, A., McInnes, K. L., et al. (2014). Coastal systems and low-lying areas. In Climate change 2014: Impacts, adaptation, and vulnerability. Cambridge: Cambridge University Press. Zweigert, K., & Kötz, H. (1996). Einführung in die Rechtsvergleichung, auf dem Gebiete des Privatrechts. Tübingen: Mohr. Zweigert, K., & Kötz, H. (1998). Introduction to comparative law. Oxford/New York: Clarendon Press/Oxford University Press.

Chapter 2

Scientific Background

Before looking at how and to what extent current legal frameworks enable coastal adaptation to rising sea levels, it is necessary to first understand the scientific evidence for climate change, sea level rise, and the entailed consequences. Thus, this chapter provides necessary background information, including specific information on Germany and New Zealand. Subsequently, the importance of coastal adaptation is illustrated before giving a brief overview of existing coastal adaptation strategies and actions. After summarizing key challenges for coastal adaptation in general, the chapter closes with a reference to intersecting areas like nature conservation and the impact of rising sea levels on the role of the state.

2.1 2.1.1

Climate Change and Rising Sea Levels Changing Climate

Anthropogenic climate change is not a myth, but a reality. Evidence for this is given for instance by the 5th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). Their report communicates the analysis of observational records of the atmosphere, land, ocean, and cryosphere systems as well as the instrumental observation of increasing land and sea surface temperatures, and satellite observations of a reduction of glaciers and ice-coverage.1 If the current warming rate continues, global warming could reach 1.5
C above pre-industrial levels already in 2040.2 Accurate prognosis of climate change and its impacts are, however, impossible to make. Future climate change depends on different

1 2

Chen et al. (2013), p. 129. Allen et al. (2018), p. 81.

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5_2

15

16

2 Scientific Background

parameters. Some of these parameters are highly uncertain, like, for instance, the variability and uncertainty of greenhouse gas emission rates in the future and the climate’s response to these emissions. Furthermore, earth and climate are complex systems with natural variabilities, e.g. in the interactions between ocean, atmosphere, and land.3 Therefore, the IPCC and other studies on future climate change use different scenarios to understand how the climate system reacts to different emission rates of greenhouse gases. Using scenarios also helps to comprehend the role of natural variables. The IPCC report in 2013 uses, inter alia, four different representative concentration pathway (RCP) scenarios.4 RCPs usually refer to the emissions and concentration of greenhouse gases, aerosols, chemically active gases, and land use/land cover up to the year 2100.5 Since these scenarios are based on very specific parameters, they create the image of a potential future that is unlikely to take place exactly as described. Nevertheless, they provide important information about possible, changes, impacts, and vulnerabilities.6 Commonly, a low emission scenario (RCP 2.6), two intermediate scenarios (RCP 4.5 and 6.0), and a high emissions scenario (RCP 8.5) are used in the IPCC’s reports.7 Furthermore, important terms used by the IPCC and others are “confidence” and “likelihood”. Confidence is based on a combination of the quality of evidence (robust, medium or limited) and agreement (high, medium or low). Likelihood is used to express the probability of the occurrence of a single event or an outcome like an observed trend or a projected change. The likelihood scale reaches from a 99–100% probability (virtually certain) to a 0–1% probability (exceptionally unlikely).8 According to the IPCC,9 • sea levels will continue to rise during and after the twenty-first century (virtually certain) • the rate of global mean sea level rise in the twenty-first century will exceed the average rate during the twentieth century (very likely) Hence, rising sea levels are one of the most certain consequences of climate change.

3

Intergovernmental Panel on Climate Change (IPCC) (2013b), FAQ 1.1. p. 5 ff. See for an overview of different scenario data: Prather et al. (2013). 5 Intergovernmental Panel on Climate Change (IPCC) (2013a), p. 1461. 6 The IPCC defines scenario as “a plausible description of how the future may develop based on a coherent and internally consistent set of assumptions about key driving forces [. . .] and relationships.” See: Intergovernmental Panel on Climate Change (IPCC) (2013a), p. 1461. 7 See for more information on these RCPs: Intergovernmental Panel on Climate Change (IPCC) (2013a), p. 1461. 8 Chen et al. (2013), pp. 139 and 142. 9 Church et al. (2013), p. 1205. 4

2.1 Climate Change and Rising Sea Levels

2.1.2

17

Global Mean Sea Level Rise

The main reason for global mean sea level is the thermal expansion of water and melting ice. Both processes require a long time to respond to increasing temperatures10 and will, therefore, continue even after surface air temperatures may stabilize. This is sometimes referred to as ‘commitment to sea level rise.’11 Therefore, even if effective mitigation measures would be taken now, sea level rise would still continue, although its implications would be less serious. As a consequence of inevitable sea level rise, coastal adaptation is necessary regardless of mitigation efforts.12 However, the exact rate and magnitude of global mean sea level rise are uncertain due to the dependency on increasing temperatures and thus future emissions. Hence, the IPCC uses different RCP scenarios. In their report on climate change 2007, the IPCC estimated that the global sea level would rise up to ~60 cm by 2100 due to climate change.13 For the 1.5
C and 2.0
C stabilization scenarios stipulated by the Paris Agreement, sea levels are expected to rise 39  9 cm and 49  10 cm until 2100, respectively.14 Under a high emissions scenario (RCP 8.5), global mean sea level rise could surpass 1 m by 2100.15 Other studies suggest that sea levels could even exceed these values for global mean sea level rise under high-emission scenarios. For instance, Pfeffer et al. estimate that sea levels could rise up to 2 m until 2100.16 The German Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie) considers a (global mean) sea level rise of up to 1.7 m until 2100 as possible. In case the Arctic and Antarctic ice sheets melt, even beyond that mark.17

2.1.3

Tipping Points and Abrupt Changes

The disappearance of the Arctic summer sea ice extent would constitute a so-called ‘abrupt change’.18 Not all climate conditions will change gradually but some may change abruptly when passing a certain threshold or ‘tipping point’.19 Abrupt climate change occurs when “a large-scale change in the climate system that 10 This is because the deep ocean temperatures respond slowly to surface warming and large ice sheets take time to adjust to hotter air temperatures. 11 Nicholls et al. (2018), p. 3. 12 See for instance: Church et al. (2013), p. 1205.; Wong et al. (2014), p. 394 f. 13 Meehl et al. (2007), p. 820. 14 Nicholls et al. (2018), p. 6. 15 IPCC (2019), p. 20. 16 Pfeffer et al. (2008), p. 1340. 17 Norddeutscher Rundfunk (2017b). 18 National Research Council (2013), p. 3. 19 National Research Council (2013), p. 1.

18

2 Scientific Background

takes place over a few decades or less, persists (or is anticipated to persist) for at least a few decades and causes substantial disruptions in human and natural systems.”20 Tipping elements like the disintegration of ice sheets are difficult to reverse.21 Another example of a potential tipping point is the destabilization of glaciers in Antarctica and Greenland, which are sensitive to changes in atmospheric and oceanic temperatures. If these glaciers melt, sea levels could rise several times faster than observed today. In consequence, coastal communities would be severely affected if such an abrupt change occurs.22 Melting ice caps in Antarctica alone could lead to more than a meter of sea level rise by 2100 and more than 15 m by 2500 if emissions do not decrease.23 In general, the probability of abrupt climate changes that would (among other impacts) result in accelerated sea level rise24 is estimated as low up to 2100 and highly probable after 2100.25 For instance, global warming of 1–2
C relative to 1980–1999 could reach the tipping point for the Greenland ice sheet and result in a sea level rise of 2–7 m. The West Antarctic Ice sheet would reach its tipping point later (3–5
C warmer world) leading to a 5 m rise in global mean sea level.26 Should any of those abrupt changes take place, sea levels would not only rise dramatically but also entail severe consequences on coastal communities. In addition, if a warmer climate activates a tipping element this could trigger other tipping elements, leading to a ‘domino-like cascade.’ This could result in a significantly warmer world, a ‘Hothouse Earth’ where even adaptation to climate change could become impossible, making our planet uninhabitable.27 However, the probability of abrupt climate change impacts only adds further challenges and uncertainties to the already gradually occurring climate changes.

2.1.4

Different Types of Sea Level

2.1.4.1

Overview

‘Sea level’ as used above relates to the global mean sea level. However, there are different types of sea levels. Therefore, Table 2.1 provides an overview. 20

Intergovernmental Panel on Climate Change (IPCC) (2013a), p. 1448. Steffen et al. (2018), p. 6. 22 National Research Council (2013), p. 7. 23 DeConto and Pollard (2016), p. 591. This study also concluded that the atmospheric warming will be the dominant driver of ice loss and that ice recovery will be delayed by thousands of years because of prolonged ocean warming. 24 E.g., destabilization of ice sheets, thermal expansion of the sea and, disruption to the Atlantic Meridional Overturning Circulation. 25 National Research Council (2013), p. 14, Table 1. 26 Lenton et al. (2008), p. 1788. 27 Steffen et al. (2018), pp. 3 and 5. 21

2.1 Climate Change and Rising Sea Levels

19

Table 2.1 Types of sea levels Geocentric sea level/absolute sea level Relative sea level Global mean sea level Regional sea level Local sea level

Height of the ocean surface with respect to a geocentric reference, e.g. the center of the Earth Height of the ocean surface with respect to the surface of the solid Eartha The surface level of the ocean at a particular point averaged over an extended period of time such as a month or yearb Offset or departure from the global mean sea level for a regional sea, e.g. sea around New Zealandc or the Baltic Sea Net rise from absolute, regional-sea offsets and local vertical land movement, measured relative to the local landmass,d may be influenced by human-induced changes like coastal defencese

a

Church et al. (2013), p. 1142; Stammer et al. (2017), p. 4 Intergovernmental Panel on Climate Change (IPCC) (2013a), p. 1457 c Ministry for the Environment (2017), p. 76 d Ministry for the Environment (2017), p. 76 e Nicholls and Cazenave (2010), p. 1518 b

Since the relative sea level relates to the land surface, it is also influenced by land subsidence or uplift.28 Subsidence can be caused by natural events like earthquakes29 or anthropogenic actions like ground fluid withdrawal.30 Due to changes in the sea surface and the ocean floor height, local relative sea level changes can differ significantly from the global mean sea level.31 However, the IPCC estimates that it is “very likely”32 that regional relative sea levels will rise in over 95% of the ocean.33 Therefore, in most places regional and local sea levels will rise as well. For the assessment of sea level rise impacts on coasts and thus for adapting to those impacts, relative local sea levels are the relevant ones.34 Thus, the next section addressed regionalized projections for the German and New Zealand coastlines.

28

Church et al. (2013), p. 1148. Due to the Canterbury earthquakes sequence in 2010/11 some suburbs in Christchurch experienced subsidence. See: Ministry for the Environment (2017), p. 85. 30 Linham and Nicholls (2012), p. 96. 31 Church et al. (2013), pp. 1142 and 1148 f. Furthermore, shifting surface winds, the expansion of ocean water due to warming water and melting ice influence ocean currents and can lead to changes in local sea level. 32 The term “very likely” reflects a 90–100% probability. See: Chen et al. (2013), p. 142. 33 Church et al. (2013), p. 1195. 34 Church et al. (2013), p. 1142; Zhu et al. (2010), p. 3. 29

20

2 Scientific Background

2.1.4.2

Regional Sea Level Rise Projections for Germany and New Zealand

For the North Sea, a sea level rise of about 25 cm per 50 years was estimated to be the most realistic scenario.35 Regional sea level rise for the Baltic Sea is estimated to be around 80% of the global mean sea level rise for the mid-range scenario of 70 cm  30 cm. For the German Baltic Sea coast, the regional sea level is estimated to rise about 50 cm under a moderate scenario until the end of the twenty-first century. Under an extreme scenario, the regional sea level could rise up to 1 m during the same timeframe.36 The offshore regional sea level in New Zealand is expected to exceed the global trend and might rise up to 10% more compared to the global sea level rise.37 Sea levels around New Zealand are excepted to rise at least 46 cm until 2100 under a low emission scenario (RCP 2.6). Under a high emission scenario (RCP 8.5 H+) sea levels could rise up to 1.05 m until 2100.38

2.2

Consequences of Rising Sea Levels

Sea level rise has numerous impacts, the primary ones being inundation and displacement of wetlands and low-lying areas, increased coastal erosion, and coastal flooding, as well as saltwater intrusion.39 There is very high confidence that coastal systems and low-lying areas will increasingly be affected by coastal flooding and coastal erosion due to sea level rise.40 This is partly because of the contribution of sea level rise to a significant increase in the return frequency of sea level extremes which is “very likely” to continue during the twenty-first century.41 Thus, sea levels that historically occurred only once per century will become annual events in most locations.42

35

Common Wadden Sea Secretariat (2001), p. 8. The BACC II Author Team (2015), p. 261; Deutscher Wetterdienst (2018), p. 37. 37 Reisinger et al. (2015), p. 1381. 38 Ministry for the Environment (2017), p. 106. 39 Mcleod et al. (2010), p. 507; Hoegh-Guldberg et al. (2018), p. 231 (‘high confidence’). 40 Wong et al. (2014), p. 68. 41 Church et al. (2013), p. 1205; Nicholls (2018), p. 18. 42 IPCC (2019), p. 20. 36

2.2 Consequences of Rising Sea Levels

2.2.1

21

Coastal Flooding

Severe coastal flooding is often caused by storm events. Although it is highly uncertain whether storm events will increase in frequency and/or strength,43 rising sea levels alone increase the risk from storm induce coastal flooding by raising extreme or storm-tide water levels.44 For the East Coast of the United States (US) a clear correlation of the acceleration in rising sea levels and the acceleration in minor flood durations was found.45 A similar trend was observed for the North Sea, where the regional sea level has risen about 20 cm during the last hundred years. As a consequence of the higher base level, the storm-tide water level also rose about 20 cm compared to the last hundred years.46 Due to a higher water level, wave-induced inundation is usually greater and the consequences more severe if the storm event coincides with high tide. This was, for example, the case during Hurricane Katrina in 2005.47 In case a storm surge occurs during extreme high tides, so-called ‘king tides’ the effect is even greater.48 Therefore, extreme events like tsunamis are also expected to increase in height as a consequence of sea level rise.49 Coastal floods can lead to direct consequences like the death or injury of people, damage and destruction of property, as well as indirect consequences. Examples of the latter are economic losses due to the stop of production processes or the costs for managing the flood catastrophe.50 Increasing coastal flood risk is expected to exacerbate both types of consequences. Apart from increasing damages, adaptation costs for building and maintaining defences are likely to grow as well.51 Infrastructure situated in low-lying coastal areas, for instance, will face increasing damages and more frequent disruptions of services.52

43

Storm events may increase about 13% from the mid of this century accrding to Schirmer (2016), p. 21. The overall numbers of cyclones are expected to decrease while extreme cyclones may increase, see: Lehmann et al. (2014), p. 1. who sum up the studies and provide further references. 44 Hofstede (2007), p. 103. 45 Ezer and Atkinson (2014), p. 380. The term “minor flood” used in the study relate to the water level above a known high tide reference level. 46 Norddeutsches Klimabüro [ed.], p. 4. 47 Ministry for the Environment (2017), p. 124; Andersen (2007), p. 14. 48 Griggs (2017), p. 114. 49 Parliamentary Commissioner for the Environment (2015), p. 23. 50 Müller (2010), p. 37. 51 Hinkel et al. (2014) and Boettle et al. (2016). 52 Wong et al. (2014), p. 383.

22

2.2.2

2 Scientific Background

Coastal Erosion

With regard to coastal erosion, the prediction of shoreline retreat is difficult. Storms, one of the major causes of shoreline retreat, are infrequent and random in their return period as well as in their variability. Hence, predictions on coastal erosion are complicated. Usually, current annual erosion rates are projected into the future to estimate future shoreline retreat.53 Beaches and dunes are already affected by erosion and there is high confidence that this will continue to be the case with rising sea levels.54 Both coastal features might even disappear entirely. As a consequence of eroding natural buffers and barriers, coastal flood risk is expected to increase further.55

2.2.3

Coastal Squeeze and Other Impacts

Coastal habitats and ecosystems are not only threatened by coastline retreat but also by saltwater intrusion.56 Saltmarshes, in particular, are expected to migrate landward, be submerged or; in case of urbanized coasts, to experience ‘coastal squeeze’ as a consequence of rising sea levels.57 The latter occurs were coastal systems cannot retreat landwards due to hard structures like man-made seawalls or natural cliffs. Since they cannot migrate, the coastal systems erode.58 In addition, rising sea levels also impact land drainage by decreasing the capabilities of drainage into the ocean, especially in low-lying coastal areas.59 With regard to New Zealand, an indirect impact of sea level rise that can have severe consequences is liquefaction,60 which is influenced by raising the groundwater level.61 Both aspects, however, are not addressed further due to the limited scope of this project.

53

Pilkey (2016), p. 28. Wong et al. (2014), p. 376. 55 Nicholls (2007), p. 6. 56 European Environment Agency (2017), p. 123. Saltwater intrusion also has adverse effecs on freshwater supply and agriculture. 57 Wong et al. (2014), p. 377 f. 58 Wong et al. (2014), p. 375. 59 Rotzoll and Fletcher (2012), p. 477 f. Results adapted by: Ministry for the Environment (2017), p. 121. 60 Liquefaction occurs, if water-saturated soil experiences shakes caused by an earthquake causing the transformation of the soil into a liquid state which results in a decrease of the soils bearing capacity. See: Sen (2009), p. 323. 61 Quilter et al. (2015), p. 6. Furthermore: Risken et al. (2015), p. 7. 54

2.2 Consequences of Rising Sea Levels

2.2.4

23

Need for Adaptation

In the light of the expected impacts and illustrated consequences, it is no surprise that sea level rise is perceived as the most important risk to human systems in coastal and low-lying areas.62 In Europe, coastal flood risk is seen as a key challenge for cities, ports and other infrastructure.63 On the opposite side of the globe, rising sea levels are considered a ‘game changer’ for decisions in coastal areas taken from now on.64 All in all, for coastal flood protection and thus for coastal adaptation, it is no longer a question whether sea levels will rise but with which velocity and to what extent.65 In particular, with regard to land use and infrastructure at the coast, rising sea levels are expected to have irreversible impacts. Thus, planning for adaptation at the coast has to start immediately.66

2.2.5

Predictions for Germany

As already mentioned, changing coastal hazard risk is not only determined by the magnitude of rising sea levels but also coastal topography and the development located in the coastal zone. The next paragraphs, therefore, explore the coastal setting and the predicted consequences of rising sea levels for Germany and New Zealand. In 2013, approximately 6.7 million people lived in coastal regions in Germany, which is not even 10% of the whole population.67 Around 12.000 km2 of the coastal regions is low-lying land, mostly at the North Sea coast, with a population of about 2.4 million people.68

2.2.5.1

North Sea

The extensive low-lying German North Sea Coast is considered to be one of the especially vulnerable areas in Europe69 and already protected by a continuous,

62

Wong et al. (2014), p. 366. Kovats et al. (2014), p. 1279 f. 64 Ministry for the Environment (2017), p. 64. 65 Schirmer (2016), p. 21. 66 Ministry for the Environment (2017), p. 18. 67 Iglesias-Campos et al. (2015), p. 35. 68 Schüttrumpf et al. (2014), p. 1. 69 Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU) (2006), p. 41. 63

24

2 Scientific Background

uninterrupted dike line.70 In particular, sea level rise is expected to affect the distinctive intertidal flats of the Wadden Sea. Even increased accumulation of sediment may not be able to compensate rising sea levels beyond a certain magnitude. A regional sea level rise of about 50 cm could change the Wadden Sea ecosystem into a lagoon-like environment.71 Permanent submerging of the tidal flats would lead to habitat loss and detriment its wave dissipating function. This, in turn, would leave coastal defences more exposed to storm surges and thus increase the probability of defence failure.72 Additionally, coastal flood risk is exacerbated by the subsidence of the coast73 as well as the dredging of the rivers Elbe and Weser. The effect of dredging on coastal flooding can be illustrated by the river Weser: before the first dredge (1887–1895) the city of Bremen only build dikes for the protection from fluvial floods. After the dredging, the tidal range and coastal floods extended to Bremen and beyond.74

2.2.5.2

Baltic Sea

In contrast to the almost uniform low-lying North Sea coast, the German Baltic Sea coast is more diverse: low-lying areas vary with soft-cliffs, steep cliffs and in large parts of the Mecklenburg-Western Pomeranian coastline the ‘Bodden’ coast.75 As a result, only about 27% of the German Baltic Sea coastline is protected.76 In Mecklenburg-Western Pomerania, ring dikes are built around settlements while uninhabited areas are left unprotected.77 About 1.400 km2 of the German Baltic coast is flood-prone low-lying land.78 Since coastal areas in the German part of the Baltic Sea are subsiding, the region is expected to notably be affected by relative sea level rise79 and the entailed increase in flood risk.80 In addition, approximately 70% of the German Baltic Sea coastline is currently retreating due to coastal erosion.81

70

Generalplan Küstenschutz Niedersachsen/Bremen—Festland, p. 13; Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 85. 71 Common Wadden Sea Secretariat (2001), p. 31; Becherer et al. (2018). 72 Hofstede and Stock (2018), p. 200; Schirmer (2007), p. 103. 73 See above for the impact of subsidence on the relative sea level: Sect. 2.1.4.1. 74 Reise (2015b), p. 160. 75 The BACC II Author Team (2015), p. 385. The bodden coast is characterized by shallow bays, see for a definition: Martin-Luther-Universität Halle-Wittenberg (2009). 76 Rupp-Armstrong and Nicholls (2007), p. 1420. 77 Fachausschuss für Küstenschutzwerke (2009), p. 37. 78 Hofstede (2011), p. 94 f. 79 Fröhle et al. (2011), p. 107. 80 The BACC II Author Team (2015), p. 391; Sterr (2008), p. 389. 81 Fröhle et al. (2011), p. 105.

2.2 Consequences of Rising Sea Levels

25

From the analysis above it has become clear that the German North Sea coast as well as the country’s Baltic Sea coast are vulnerable to rising sea levels and increasing coastal hazard risks.

2.2.6

Predictions for New Zealand

New Zealand’s coastline varies in nature and extent of the coastal environment.82 Most parts of the coast are characterized by steep cliffs, but about a third of the coastline are beaches.83 Sea level rise is expected to lead to erosion, landslips, and flooding, which will affect coastal habitats with ‘high confidence’.84 Besides exacerbated coastal erosion and coastal flooding, higher storm surges are expected as a consequence of climate change.85 For New Zealand’s coasts, sea level rise since 1900 increased the frequency of extreme sea levels and thus the potential for coastal inundation. With continuing sea level rise, the frequency of extreme sea levels is expected to rise even faster.86 Additional beach erosion attributed to sea level rise is estimated at about 15–20 m within the next 100 years in some areas.87 Moreover, since a substantial part of New Zealand’s coastal land is experiencing subsidence, coastal hazard risk increases, particularly in low-lying areas.88 These areas are therefore also likely to experience the consequences of sea level rise more severely. Furthermore, sea level rise is seen as a significant risk for New Zealand with a ‘very high confidence’ because of augmenting coastal development,89 as this increases the number of assets exposed. Since New Zealand’s population, as well as important infrastructure like main roads, are mostly located in coastal areas,90 sea level rise is an important issue to be addressed.

82

New Zealand Coastal Policy Statement 2010, p. 5. Officials’ Committee for Domestic and External Security Coordination (2007), p. 56. 84 Reisinger et al. (2015), p. 1392. 85 Climate Change Adaptation Technical Working Group (2017), p. 25. 86 Stephens (2015), p. 6. 87 Environment Waikato (2002), p. 4. 88 Peart (2005), p. 90. 89 Reisinger et al. (2015), p. 1384. 90 The Royal Society of New Zealand (2016), p. 5; Ministry for the Environment (2017), p. 17. 83

26

2.3

2 Scientific Background

Examples of Past Coastal Hazard Events

Historic events show the disastrous impact that storm surges and coastal floods can have on the coast, the hinterland and the settlements close to the coast. The examples given below illustrate the need for coastal adaptation to rising sea levels and exacerbating coastal hazards.

2.3.1

Storm Surge 1962 at the North Sea

In February 1962 the German North Sea coast was hit by a storm surge that resulted in one of the most disastrous hazards in post-war German history. The storm surge led to the bursting of dikes and the flooding of the protected land behind. As a consequence, homes were damaged, cattle drowned and, most sadly, 340 people lost their lives.91 In Hamburg alone, the dikes burst over 60 times and major parts of the city were flooded, resulting in the death of 315 people.92 The main reasons for the catastrophe were the insufficient height of the dikes as well as destabilization of the dikes by buildings constructed and trees planted on the dikes.93 Furthermore, adverse dike profiles and the bad state of the dikes due to a lack of maintenance contributed to the dike failures.94 This example illustrates the catastrophic consequences in case of defence failure as well as the need for adequate design and maintenance. During a severe storm in the Baltic Sea in January 2017, for instance, newly built flood protection defences proved their value95 and even though some dikes were overwashed by the storm surge, no person was hurt.96

2.3.2

New Zealand Flood Events in February 2018

In New Zealand, storms often cause damage to private and public assets. In February 2018, for instance, the country was hit by two storms, ex-tropical cyclones Fehi and Gita. Ex-tropical cyclone Fehi caused extensive damage throughout the country due to wind, rain and coastal storm surges. The storm especially hit the Nelson area and the west coast of the South Island, flooding and destroying properties there as well as the main road, State Highway 6.97 The combination of heavy rain brought by 91

Rohde and Petersen (1977), p. 62 f. Norddeutscher Rundfunk (2020); Freie und Hansestadt Hamburg Chronologie der Katastrophe. 93 Norddeutscher Rundfunk (2017a). 94 Kramer (1993), p. 73. 95 Staatskanzlei Schleswig-Holstein (2017). 96 Die ZEIT (05 January 2017). 97 National Institute of Water and Atmospheric Research Ltd (NIWA) (2018a) and Lee (2018). 92

2.4 Coastal Adaptation Strategies

27

ex-tropical cyclone Gita and high tide caused flooding of low-lying land and State Highway 1, which had to be closed north of Wellington.98 According to the Insurance Council of New Zealand, Cyclone Fehi caused damage that resulted in about 45.9 million NZD of insurance cost while ex-cyclone Gita resulted in 35.6 million NZD insurance costs.99 This illustrates that even were no casualties incur, storms can result in high costs.

2.3.3

A Worldwide Problem: The Example of Hurricane Katrina

Rising sea levels and coastal hazards are not limited to Germany or New Zealand but concern every coastal state. In 2005, Hurricane Katrina hit the US-state of Louisiana, causing the loss of over 1000 lives and damage to properties and infrastructure worth billions of US-Dollars. Dikes and floodwalls were overtopped or breached by the storm, flooding over 80% of the City of New Orleans.100

2.4

Coastal Adaptation Strategies

Despite limited evidence, there is high agreement among the IPCC members that coastal protection can considerably reduce the potential impacts of coastal flood damage and land loss.101 With regards to Europe and New Zealand, there is even high confidence that adaptation to rising sea levels can effectively prevent most of the projected damages.102 Adaptation can take place in numerous ways. Coastal adaptation strategies are usually divided into 3–4 groups, since “Avoidance” is sometimes seen as a separate strategy and sometimes as an integral part of retreat:103 Here, avoidance is addressed separately since the law treats regulation of future land use different from relocating existing development (Table 2.2). Although adaptation to rising sea levels can be implemented reactively and proactively, accommodation and retreat strategies are considered to be best

98

National Institute of Water and Atmospheric Research Ltd (NIWA) (2018b). Insurance Council of New Zealand The costs of Natural Disasters in New Zealand. This equals 25.5 million € and 19.8 million €. 100 Andersen (2007), pp. V and 1. 101 Wong et al. (2014), p. 382. 102 Field et al. (2014), p. 77 f. 103 Glavovic (2014), p. 64; Wong et al. (2014), p. 387; Klein et al. (2001), especially pp. 531 and 537; Ministry for the Environment (2017), p. 190. 99

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2 Scientific Background

Table 2.2 Adaptation strategies Strategy Accommodation/ Limited intervention

Protection/ Hold the line

Retreat

Avoidance

Explanation Continuing use and development in at-risk coastal areas but no attempt to defend the current coastline. Adjusting existing assets by using measures that anticipate hazard risks to increase resilience Defence of the current coastline and protection of (continued) use of coastal development Reducing the risk by decreasing the probability of occurrence Moving away people and assets located in at-risk coastal areas Reducing the risk by limiting its potential effects People and assets located away from at-risk coastal areas

Examples Flood-resistant design, relocatable buildings, elevated buildings, insurance programs, flood warning systems

Hard- and soft-engineering approaches, e.g. dikes, seawalls, dunes, sand nourishments

Spatial planning, relocation (voluntary and involuntary), shoreline setbacks Spatial planning

implemented in an anticipatory manner.104 For all approaches, a proactive implementation that takes into account climate change, e.g. through a safety margin, is recommendable. Technologies from different approaches are usually combined, e.g. hard defences like dikes are often combined with flood warning systems. Using a combination of different protection strategies is valuable since it reduces the risk of catastrophic failure.105 Another example of a combined or ‘portfolio’ approach is to protect economically important cities while giving up smaller settlements.106

2.5

Overview of Coastal Adaptation Actions

As mentioned in the paragraph above, many different coastal adaptation strategies exist. The following overview therefore does and cannot claim to be an exhaustive one due to the broad variety of adaptation options to rising sea levels. Furthermore, the focus of the overview is on the adaptation actions used or considered in Germany and New Zealand, as the two countries are investigated in this thesis.

104

Klein et al. (2001), p. 538. Zhu et al. (2010), p. 16 f. 106 Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU) (2006), p. 56. 105

2.5 Overview of Coastal Adaptation Actions

2.5.1

29

Risk Assessment and Hazard Mapping

Although it seems self-evident that in order to adapt to rising sea levels and increasing coastal hazards, a risk evaluation is necessary as a starting point, the following example illustrates the importance of risk evaluation further. Prior to the disastrous Hurricane Katrina, the risks of the city’s hurricane protection system in New Orleans were never quantified. The approximate risk of a catastrophic failure107 is estimated to have been once in 40 years of operation. Since neither the people nor the planners and policy-makers were aware of the actual risk, the protection works as well as evacuation plans were inadequate.108 This example shows that in order to provide an adequate safety standard against coastal flooding, a risk evaluation is needed to determine which areas require protection and to what extent. Furthermore, the assumption that action should be taken on the basis of knowing the extent of risk is transferable to coastal erosion risk. Thus, assessing coastal hazard risk and its potential changes due to rising sea levels should be the first necessary step to adaptation in coastal zones—no matter which adaptation approach is chosen. In order to respond to coastal hazard risks, defining which coastal areas are at risk of flooding under extreme conditions is important. Hazard maps can either relate to flood or to erosion risk. They often constitute the basis for land use planning in hazard prone areas. As coastal hazard risk will change due to rising sea levels, these changes need to be accounted for, e.g. through periodic updates109 or using simulations of future risk. In addition, hazard maps can increase risk awareness among the public and the responsible authorities. They can also be used to identify at-risk locations and support suitable planning decisions, like for instance, avoiding further development or to determine insurance premiums in these areas.110

2.5.2

Structural “Hard” Defences

Up to now, Germany, as well as New Zealand, have focused on a protective approach using mostly hard defences.111 Hard defences (Table 2.3) are solid structures that constitute a barrier that impedes the natural dynamic interaction of land and sea and holds the coastline in the position at the time of construction (Table 2.3).112

107

Catastrophic failure in this report meant an event that results in approximately 1000 casualties. Andersen (2007), p. 61 f. 109 Zhu et al. (2010), p. 87. 110 Rosendahl Appelquist et al. (2016), p. 40 f. 111 Hofstede (2007), p. 103; Hart (2011), p. 31; Manning and Reisinger (2011), p. 23; Rouse et al. (2016), p. 197. 112 Zhu et al. (2010), p. 21. 108

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2 Scientific Background

Table 2.3 Major hard defences Dikes/ stopbanks

Flood protection walls Seawalls

Definition Artificial, ridge-type earth bank with paved slopes, which is built for protecting areas from flooding caused by storm surges or draining surface watera Vertical constructions that usually consist of sheet piles or concrete walls and aim at the protection from floodsc Built directly at the shore and aim at its protection by reducing the wave energy and preventing the undermining of the coast by watere

Groynes

Perpendicular to the shore to retain sand and hamper erosiong

Groynes for land reclamation

Groyne-like dams, consisting of two rows of piles with shrubberies in between. They facilitate sediment deposition and thus enable land reclamationi

Revetments

Armored slopes that reduce the energy of waves, usually consist of boulders, concrete or riprapk

Further information Dikes are the main coastal flood protection works in Germany. The state of Bremen would not exist without dikesb Mostly built in areas where space is limitedd, e.g. in cities There is a variety of different types of seawalls, one example is a sheet pile wall. Seawalls can incorporate promenades and thus also serve recreational purposesf Locally influence the longshore sediment transport and protect sandy beaches; often combined with sand nourishmenth Land reclamation can have the purpose to gain new land for settlements and agricultural use or enhance the foreshore as a coastal protection measurej Revetments are often used to protect dikes that do not have a foreshorel, eroding shores or dunesm

Wassergesetz des Landes Schleswig-Holstein: LWG SH, § 64 (1). A very similar definition of a dike is given by Lüders and Leis (1964), p. 134 b Generalplan Küstenschutz Niedersachsen/Bremen—Festland, p. 11 c Hochschule Bremen d Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 49 e Generalplan Küsten-und Hochwasserschutz Mecklenburg-Vorpommern, p. 44 f Zhu et al. (2010), p. 38 f g Watson and Adams (2011), p. 161 h Weichbrodt (2008), p. 241 i Lüders and Luck (1976) j Lüders and Luck (1976) k Watson and Adams (2011), p. 161 l In German this type of dike is called “Schardeich” or “scharliegender Deich”, see: Vollmer (1973), p. 209 m Lüders and Luck (1976), p. 39 a

Structural protection works often create a false sense of security and further demands for protection thus locking in exposure to risk over the long term.113 Lock-ins can create difficulties to implement other, more effective or economical, adaptation strategies. Another disadvantage of relying on a protection strategy is the

113

Climate Change Adaptation Technical Working Group (2017), p. 18.

2.5 Overview of Coastal Adaptation Actions

31

always remaining residual risk of defence failure.114 The severity of defence failure was illustrated by the examples of the storm surge 1962 and Hurricane Katrina.115 Further limitations of structural defences are technical or economical. Raising dikes, for instance, requires broadening the dike foot as well. Hence, this is only possible where the ground is stable enough to endure the increased weight and sufficient building material (clay) is available.116 Broadening the dike foot can be impossible due to settlement areas or the destruction of buffer zones and habitats, where conflicting environmental concerns may impede dike enhancement.117

2.5.3

“Soft” Defences

In contrast to “hard defences,” “soft defences” do not hinder natural processes like sediment transport but adapt to and supplement them. Since they are more flexible, they avoid lock-in effects, leaving more options for future coastal management decisions.118

2.5.3.1

Dunes

Dunes are accumulations of sand above the beach, usually, build by the influence of the wind.119 They constitute a barrier, protecting the hinterland. Dunes also provide a temporary storage of sediment and therefore allow short-term adjustments of the beach during storm events. Stabilizing vegetation is used to preserve dunes.120 For coastal protection purposes, dunes are often nourished with sand, restored or even created artificially.121 However, dunes cannot withstand prolonged wave attacks when sea levels are elevated for a long time. Hence, their effectiveness is limited.122 Moreover, dunes need sufficient space, in particular, to avoid coastal squeeze.123 Dunes are estimated to cover about 300.000 hectares of New Zealand’s coast but in most cases, the dunes have been significantly altered124 and in the past often

114

On dikes which e.g. may fail due to erosion or overflowing: Schüttrumpf et al. (2014), p. 7. On seawalls: Watson and Adams (2011), p. 161. 115 See above: Sect. 2.3. 116 Schirmer (2007), p. 70. 117 Schuchardt and Schirmer (2005), p. 244 f. 118 Linham and Nicholls (2012), p. 97. 119 Wassergesetz des Landes Schleswig-Holstein: LWG SH, § 64 (10). 120 Reeve and Fleming (2004), p. 358. 121 Zhu et al. (2010), p. 31. 122 Griggs (2017), p. 70. 123 Zhu et al. (2010), p. 34. 124 Peart (2005), p. 56.

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2 Scientific Background

removed to improve views.125 In Germany, dunes are the dominating coastal protection defence in Mecklenburg-Western Pomerania.126

2.5.3.2

Sand Nourishment

Sand nourishments are measures to balance sediment erosion along recessive coastlines, i.e. where the sediment budget is negative. They can be used to increase the volume of beaches, shorefaces, and dunes as well as to create additional sand depots. While nourished beaches and shorefaces reduce the wave energy reaching the dunes and coastal protection works, dune reinforcements are necessary to ensure their protection of the hinterland against flooding.127 Example On the west coast of the North Frisian Island Sylt, wind, and waves erode approximately one million cubic meters of sand each year. The sand lost due to these natural processes is compensated by regular sand nourishments. Between 1972 and 2017 approximately 49.5 millions of cubic meters of sand were deposited by sand nourishment.128 Sand nourishment does not only serve coastal protection but also creates or maintains the beach as an amenity, thus providing benefits for tourism and recreation.129 However, sand nourishment may change the ecosystem and the habitat in the nourished area (target site) as well as in the area where the sand was extracted from (borrow site). Despite the fact that it is widely regarded as more ecologically sound than hard protection structures like dikes or seawalls, it is not devoid of negative impacts on the environment and natural processes.130 The amount of sand and the frequency of nourishments can be adapted in the short term, making sand nourishment a more flexible measure than dikes, for instance.131 The disadvantage of this limited timeframe is the need for regular re-nourishments and thus further dredging132 since beaches and dunes continue to erode. Furthermore, storms can cause

125

Environment Waikato (2002), p. 12. Fachausschuss für Küstenschutzwerke (2009), p. 35. 127 Ausschuß für Küstenschutzwerke der Deutschen Gesellschaft für Erd- und Grundbau e.V. sowie der Hafenbautechnischen Gesellschaft e.V (1993), pp. 284 and 287; Zhu et al. (2010), p. 23. 128 Landesbetrieb für Küstenschutz, Nationalpark und Meeresschutz Schleswig-Holstein (LKN) Sandaufspülungen (2018). 129 WWF Deutschland (2015), p. 21. 130 Speybroeck et al. (2006), p. 421. 131 Nicholls (2007), p. 13. 132 Crowe et al. (2016), p. 886. 126

2.5 Overview of Coastal Adaptation Actions

33

massive erosion that makes further sand nourishments necessary.133 With rising sea levels, the erosion rate of replenished sand is considered to accelerate and thus nourishments would be necessary more frequently and therefore become more costly.134 As more coastal communities are expected to compete for diminishing sand resources, this is also likely to increase costs.135 Among other issues, costs and thus the feasibility of sand nourishments depend on whether there is a suitable sediment source within proximity of the nourishment site.136 When nearby sediment sources are depleted, sand nourishment will become more expensive. Sand nourishment is not only used for Sylt and the other Frisian Islands in the North Sea but also at the Baltic Sea. In Mecklenburg-Western Pomerania, protective sand nourishment in front of coastal dunes is an integral part of the coastal protection strategy since dunes are the most important defences.137 In New Zealand, beach nourishment has been conducted, for instance, in the Tauranga Harbour area.138

2.5.3.3

Buffer Zones

Wetlands and other buffer zones help to reduce coastal flooding and erosion. They also provide a habitat for many species.139 Saltmarshes, for instance, reduce wave energy and erosion and therefore protect the coast and defence structures, like dikes.140 Wave dissipating foreland can also reduce the required coastal defence height.141 Saltmarshes and mangroves are the most common wetland ecosystems restored or protected for coastal protection interests.142 In Germany, the Wadden Sea is the most important buffer zone for the North Sea. At the Mecklenburg-Western Pomeranian Baltic Sea coast, the foreland between dike and dune is reforested for coastal protection.143 In New Zealand, mangroves functions as wave and erosion protection, in the Firth of Thames, for example, they

133

At the German island of Wangerooge storms destroyed a major part of the beach in 2019 as well as in 2020, see: Hanz (10 January 2019) and Weser-Kurier (13 February 2020). 134 Pilkey (2016), p. 9. 135 Keeler et al. (2018). 136 Zhu et al. (2010), p. 28. 137 Fachausschuss für Küstenschutzwerke (2009), p. 35. 138 Environment BOP (2002), p. 47. 139 Zhu et al. (2010), p. 76. 140 Cheong et al. (2013), p. 788; Seiberling and Stock (2009), p. 185. 141 Approximately a 100 m of foreland reduces the required dike height about 1 m. Personal communication by Michael Schirmer (Bremischer Deichverband am rechten Weserufer, on 22 September 2016). 142 Zhu et al. (2010), p. 77. 143 Fachausschuss für Küstenschutzwerke (2009), p. 44.

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2 Scientific Background

protect stopbanks.144 Furthermore, esplanade reserves or esplanade strips serve as buffer zones.145

2.5.4

Risk Avoidance

Spatial and land use planning can make an important contribution to coastal adaptation, particularly with regards to avoid further exposure of development. Spatial planning instruments can support climate change adaptation, for instance by setting requirements for hazard mitigation. They can also be used to voluntary or compulsory acquire hazard prone land.146 Apart from this, spatial planning reconciles ecological, social and economic conflicts, which are expected to exacerbate due to climate change.147 Limiting settlements and infrastructure in hazard prone areas can reduce risks from coastal flooding and coastal erosion.148 Such restrictions can be combined with directing new development further landwards and/or towards higher ground—where possible. Avoidance is crucial for adaptation since decisions permitting urbanization and further development are difficult to reverse and might underestimate future risks.149 Existing development has a great impact on adaptation on a factual as well as a legal basis. In particular, the protection of property rights can be a significant obstacle to state action.150 Limiting development in areas prone to coastal hazards could, on the other hand, be a no-regret (or low-regret151) action if it already reduces vulnerability to present coastal hazards.152 A co-benefit would be safeguarding space for future protection works or to provide buffer zones, which could complement a protection as well as a retreat strategy. Additionally, spatial planning instruments can communicate risk to prospective purchasers of properties as well as land use regulations that restrict or even prohibit developments.153

144

Environment Waikato (1999), p. 12. Ministry for the Environment (2017), p. 241. 146 Foerster et al. (2013), p. 484. 147 Meyer (2014), p. 85. 148 Andersen (2007), p. 77. 149 Hallegatte (2009), p. 244. 150 See below: Sects. 3.5.2, 3.5.3, 4.7.2 and 5.2. 151 These are options that are overall beneficial under current climate and a range of future climate change scenarios. See: Intergovernmental Panel on Climate Change (IPCC) (2013a), p. 1769. 152 Hallegatte (2009), p. 244. 153 McDonald (2010), p. 14. 145

2.5 Overview of Coastal Adaptation Actions

2.5.5

35

Accommodation

Accommodation strategies can reduce vulnerability to coastal hazards without using additional land often needed for defences or relocation while also avoiding the entailed social disruption. The broad range of accommodation actions includes simple and affordable actions like moving valuable objects to higher ground.154 Accommodation strategies include technologies that involve physical changes to accommodate the effects of flooding or erosion (e.g. flood-resistant design) as well as enhancing knowledge of coastal hazard risk (e.g. flood warnings).155 The thesis will examine risk assessment, flood-resistant design, and insurance as examples for this strategy.

2.5.5.1

Flood-Resistant Design

Flood-resistant structures avoid or at least reduce the impacts of coastal flooding. While flood proofing only reduces damage caused by high-velocity flood flow and wave action to a limited extent, it is very effective where the flood depth is low.156 Examples include elevated buildings, e.g. on stilts or artificial mounds, floating houses157 or a design of buildings or infrastructure that can temporarily be flooded without any damage.158 Walls of buildings can, for instance, be sealed by waterproof coatings, combined with movable barriers to seal doors and windows.159 In Hamburg, the traditional method of constructing houses on elevated dwelling mounds (Warften)160 was used to turn an old port area into a business and residential area located outside the dike line. The artificially created elevation of the district area guarantees a comparable safety standard to the dikes.161

2.5.5.2

Insurance

Insurance is a risk spreading instrument underpinning the modern economy.162 Although insurance does not reduce hazard risks, its role in redistribution and 154

Linham and Nicholls (2012), p. 103. Zhu et al. (2010), p. 69. 156 Zhu et al. (2010), pp. 69 and 72. 157 Watson and Adams (2011), p. 171; Deltacommissie (2008), p. 52. One example of floating houses can be found in IJburg, a suburb of Amsterdam. 158 European Environment Agency (2016), p. 35. 159 Zhu et al. (2010), p. 71. 160 Dwelling mounds were common at the low-lying North Sea coast and still exist on the Halligen (islands regularly flooded by the tides). See: Reise (2015a), pp. 71 and 132 f. 161 Hofstede (2007), p. 104. 162 Michalik and Boys (2015), p. 1. 155

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2 Scientific Background

transfer of risks can be an important component for coastal hazard management. Insurance premiums, excesses, and availability of insurance can send important signals to homeowners and buyers if they adequately reflect the risk., e.g. that a property is at risk from coastal erosion.163 Thus, insurance can function as a risk communication instrument. Risk reduction can further be encouraged by e.g. reducing the premium.164 However, most insurance policies rebuild the ‘status quo ex ante” and thus preserve the same level of risk instead of promoting resilience and adaptation—an example of maladaptation.165

2.5.6

Retreat Strategies

Upgrading coastal defences and adapting buildings will not always guarantee sufficient protection against rising sea levels in the long-term. Hence retreat strategies are likely to become necessary in some locations.166 Apart from moving people and assets out of the hazard prone area, retreat also creates a buffer zone. This reduces or entirely avoids protection structures and decreases the reliance upon those defences.167 In addition, managed retreat can enable natural defences like beaches or dunes to migrate landwards and avoid ‘coastal squeeze’.168

2.5.6.1

Managed Retreat

Retreat can involve deliberately giving up defended areas and allowing them to flood, hereby creating new intertidal habitats like salt marshes.169 The existing defence line is either moved further inland, removed or its maintenance is discontinued.170 Moving the defence line further inland may not be feasible in some locations, e.g. if the ground in the new location is not stable enough to build a dike there.171 With regards to development, property rights can be linked to sea level rise. An example is the requirement to remove a building when the sea reaches a previously specified distance from it.172 Part of a managed retreat strategy can be a policy that combines incentives to leave the coastal hazard area with discouraging

163

Boston and Lawrence (2017), p. 11 f. The Geneva Association (2009), p. 64. 165 Schuster (2013), p. 138. 166 Kovats et al. (2014), p. 1305; Griggs (2017), p. 94 f. 167 Linham and Nicholls (2012), p. 103. 168 Abel et al. (2011), p. 280. 169 Then referred to as ‘managed realignment’. Zhu et al. (2010), p. 102. 170 La Vega-Leinert et al. (2018), p. 586. 171 Dikes build on unsuitable soil may sink into the ground. Hesse (2001), p. 44. 172 Abel et al. (2011), p. 285. 164

2.5 Overview of Coastal Adaptation Actions

37

people and investments to move there.173 Managed retreat can occur on different scales, depending for instance on the number of settlements and infrastructure that are relocated. Furthermore, relocation can take place within a property’s boundary or to a different site.174 Benefits entailed by a retreat strategy include allowing the natural retreat of the coast and the coastal habitats as well as the preservation of the natural character of the coast. Furthermore, retreat options avoid costly protection measures,175 since they constitute a one-time investment and provide a long-term or even permanent risk reduction.176 However, managed retreat can be a very controversial strategy since it collides with property rights and landowners may not want to move away. This is shown, for instance, by very low participation numbers in buyout programs offering to buy coastal properties for the market value.177 Managed retreat can fail because of public resistance, e.g. against laws prohibiting any rebuilt of a beach house destroyed in a storm.178 Ideally, the relocation—whether on a small or large scale—should not only move the relocated assets out of the coastal hazard zone but also to a location that is not at risk from other hazards. Therefore, this approach is likely to require a risk assessment for the designated location within the coastal community or the new settlement area. Clearly, this should be part of the original assessment when considering relocation. Managed retreat strategies are protection measures that are not considered in Germany. Up to now, retreating from the coastline is not seen as an option at all.179 In New Zealand, managed retreat is expected to become a fundamental and common strategy within the next few decades.180

173

Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU) (2006), p. 55. 174 Ministry for the Environment (2008), p. 70. In the Ministry’s previous Guidance Manual managed retreat includes elevating the building floor or building on piles as ‘micro-retreat’. For the definitions used in this thesis these cases do not fall under ‘managed retreat’ but are considered as forms of flood resistant design. 175 Peart (2005), p. 92. 176 Freudenberg et al. (2016), p. 8. 177 Field et al. (2017), p. 5. The study examined this issue for the US Federal buyout programs in the north east of the US. The conclusion seems nevertheless to be generally applicable. Moreover, a study on the US, Australia and New Zealand found that existing development and property rights hamper managed retreat policies: Abel et al. (2011), p. 280. 178 Pilkey (2016), p. 5. Concerning a case in North Carolina, US. 179 Eckstein and Strunz (2017). 180 Ministry for the Environment (2008), p. 70.

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2.5.6.2

Coastal Setbacks

Coastal setbacks can be defined as a prescribed distance to a coastal feature, e.g. the line of permanent vegetation within which development is entirely or partially prohibited.181 Setbacks either establish a minimum distance from the coastline (usually to address erosion) or a minimum elevation level above sea level (usually to address coastal flood risk).182 Setbacks can, therefore, provide a development-free buffer zone that avoids further risk from coastal hazards and minimizes property damage.183 Hence, setbacks can play an important role in foresighted planning. Due to rising sea levels, setbacks will have to be reviewed in order to ensure a sufficiently broad buffer zone, e.g. every 10 years. However, such reviews may cause opposition if existing structures or land purchased because of development plans are included in the buffer zone.184

2.6

General Challenges for Coastal Adaptation to Rising Sea Levels

Although coastal adaptation to rising sea levels needs to occur locally,185 some challenges are universal.

2.6.1

Complexity of Coastal Adaptation

As apparent from the examples given above, coastal adaptation can take place through various different strategies and adaptation actions, which differ, for instance, in intended effect of protection and unintended side effects on other coastal processes.186 Taking into account that the coast itself is above all not standardized,187 determining which protection strategies and actions are suitable therefore depends on various parameters, like the construction material188 or the location of a coastal

181

UNESCO (1997), p. 1 Rosendahl Appelquist et al. (2016), p. 16. 183 Zhu et al. (2010), p. 109f. 184 Rosendahl Appelquist et al. (2016), p. 18. 185 See above for the different predictions for the coastal zones investigated: Sects. 2.2.5 and 2.2.6. 186 See for advantages and disadvantages of several different coastal works: Reeve and Fleming (2004), Figure 9.1 (p. 320) and Table 9.3 (p. 321). 187 Coasts can e.g. consist of sandy or gravel beaches or steep cliffs; see also above: Sects. 2.2.5 and 2.2.6. 188 See for groyne construction materials: Reeve and Fleming (2004), Table 9.5 (p. 331). 182

2.6 General Challenges for Coastal Adaptation to Rising Sea Levels

39

defence as well as beach material, coastal vegetation or local wave climate.189 Furthermore, existing coastal development is also a determining factor. Hence, there is no standardized answer to rising sea levels. Additionally, often coastal flood protection concepts combine several different protection measures, e.g. a dike may be combined with the preservation of the foreshore and/or groynes. Hence, effective coastal adaptation usually requires a combination of strategies and measures working together in a complementary fashion.190

2.6.2

Long-Term Perspective

Coastal adaptation decisions like flood defences, spatial planning or flood-resistant buildings and infrastructure have a long investment time scale, usually 30 years or longer.191 Most coastal defence structures are designed to last at least 50 years, sometimes up to 100 years.192 Apart from the long design life of coastal defences, the implementation of coastal (flood) protection programs often requires a long time as well.193 Even more importantly, decisions on adaptation to sea level rise taken today will impact adaptation capacity in the future,194 in particular were ‘lock-ins’ are created. As a consequence of the aforementioned factors, coastal adaptation decisions need to be foresighted and take a long-term perspective. In particular, coastal adaptation must take into account future coastal hazard risk over the entire lifetime of new development or new major infrastructure, for instance with regard to their location and design.195 Notably, where a paradigm shift, e.g. from a mainly protective strategy to a retreat strategy is necessary, planning needs to start early to include stakeholders and solve potential litigation issues.

2.6.3

Coping with Uncertainty

Coastal adaptation has to deal with the uncertainties of climate change in general and rising sea levels in particular. Climate models cannot provide certainty about how

189

Environment BOP (2002), pp. 3 and 37. Tobey et al. (2010), p. 330. 191 Wong et al. (2014), p. 389. 192 Nicholls (2007), p. 3. 193 Gönnert et al. (2009), p. 252 estimate 25–30 years. Hallegatte (2009), p. 240 mentions an implantation period of 30 years or more with regard to coastal protection infrastructure, e.g. the Thames Barrier in the UK. 194 Ministry for the Environment (2017), p. 64. 195 Ministry for the Environment (2017), p. 188. Hallegatte (2009), p. 240 with regard to buildings. 190

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climate change and its impacts will develop.196 Thus, the decision-making197 frameworks need to adapt to be able to cope with the unchangeable uncertainties.198 Consequently, legal frameworks for coastal adaptation to rising sea levels should to not only promote long-term strategies but also robustness. Flexibility to readjust decisions and strategies can enable coping with different sea level rise scenarios.

2.6.4

Avoiding Maladaptation

Maladaptive actions increase risk and vulnerability to climate change and its impacts instead of reducing them.199 One example of maladaptation is the redevelopment of flood-damaged properties,200 at least if no adaptation action is taken. Another thing to bear in mind is that protection structures might sometimes only shift the problem to adjacent areas.201 Furthermore, coastal protection measures like groynes and beach nourishment can impact the sediment processes and contribute to coastal erosion.202 Coastal defences can also be maladaptive since they create the impression of safety and thus encourage coastal development in vulnerable areas.203 As a result, potential damages increase.204 Increasing population and rising property values in at risk-areas then lead to pressure on policymakers to address coastal hazards and economically justify further engineering of protection measures.205 This is also an example of the already mentioned ‘lock-in effect’.

2.7

Intersection with Other Areas and Demands

Notwithstanding the differences between the aforementioned coastal adaptation strategies, all of them take place in a broader context, involving other issues often unrelated to climate change.206 Conflicting ecological demands, for example, can set

196

See above: Sect. 2.1.1. Decision-making is used for decisions made by institutions not judicial decisions. 198 Hallegatte (2009), p. 242. 199 Intergovernmental Panel on Climate Change (IPCC) (2014), p. 1769. 200 Linham and Nicholls (2012), p. 99. 201 Choi et al. (2016), p. 1066. This study focus on two areas in South Korea which were manly protected by breakwaters and groynes. 202 Ministry for the Environment (2008), p. 115. 203 See e.g. for this criticism concerning beach nourishment: Pilkey and Young (2005), p. iv. 204 McInnes (2006), Chapter 3, p. 39. 205 Smith et al. (2015), p. 108. 206 Klein et al. (2001), p. 532. 197

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limitations to the extent of coastal protection measures207 or deem them inadequate, like land reclamation.208 Coastal defences, for instance, can have adverse effects on the coastal ecosystem as they reduce or even eliminate the sediment supply, prevent energy attenuation and alter habitats. Building defences interferes with the natural processes of coastal erosion and periodic flooding, which supply wetlands like the Wadden Sea with fresh inputs of sediments and nutrients.209 The fact that defences can cause coastal squeeze was already mentioned.210 In other areas, coastal protection and nature conservation have parallel interests. Both aim, for example, to preserve salt marshes211 since sea level rise may otherwise drown habitats and species.212 Example213 The Wadden Sea saltmarshes reduce wave energy and therefore protect other coastal defences behind like dikes or seawalls. Saltmarshes have a high ecological value and are part of the national parks in the Wadden Sea area. They constitute an important biotope for numerous flora and fauna species, some of them endemic to the Wadden Sea. Dunes are another example of a coastal defence that is also an ecologically valuable habitat and can be used for recreational purposes.214

2.8 2.8.1

Impact on the State, Its Responsibilities and the Role of Law The State’s Role in Coastal Adaptation

The need for adaptation to rising sea levels and increasing coastal hazard risks entails new challenges for society in general and the state as its main institution. Although

207

Kunz (2004), p. 39. Behnen (2000), p. 115 with regards to Germany. 209 Cooper et al. (2016), pp. 1 and 9. 210 See regarding the Wadden Sea: Umweltbundesamt (2015), p. 67. See in general: above Sect. 2.2.3. 211 Kunz (2004), p. 47. 212 Wong et al. (2014), p. 374. 213 Common Wadden Sea Secretariat (2001), p. 22 ff. This report was prepared by a trilateral expert group representing the coastal as well as the nature protection authorities in the Netherlands, Denmark and Germany. 214 Zhu et al. (2010), p. 34. 208

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not directly referring to adaptation, the UN Sendai Framework for Disaster Risk Reduction acknowledges the primary responsibility of states to prevent and reduce disaster risk.215 Reducing disaster risks from coastal hazards is, however, an integral part and the purpose of adaptation. Furthermore, since the coast is usually seen as a shared resource, coastal adaptation is often realized and financed by the state.216 Climate change adaptation has a significant political dimension and adaptation actions can collide with other interests. Land use restrictions or the implementation of a retreat strategy, for instance, are usually contrary to the property owner’s interests. Existing conflicts between different coastal land uses, like coastal protection, coastal properties, nature conservation, tourism, and agriculture, are expected to exacerbate due to climate change and the need to adapt to it.217 Arguably, weighing and reconciling those different interests and demands is the task of the state.218 Fundamental decisions on how to cope with climate change and its impacts need to be made by society and its appointed decision-makers. In particular, decisions with regard to government funding of coastal protection works can be highly political as the interests of at-risk property owners and those of the taxpayers need to be balanced. While coastal property owners usually advocate funding for protection works, the rest of the community may want to spend the money on other projects.219 Implications for climate justice issues will be discussed at a later stage.220

2.8.2

Human Risk Perception

Further challenges for coastal adaptation relate to the misconception of risks. Sufficient information does not guarantee that long-term risks are adequately addressed since everyday concerns may be perceived as more important.221 When confronted with probabilities, people often “replace the laws of chance by intuitive heuristics”, which can result in large systematic biases.222 One example is the human tendency to overestimate small while underestimating large probabilities or sometimes entirely ignoring risks with a low probability. When evaluating risk, people tend to give more weight to recent events. Since it is less likely that rare events have 215

United Nations Office for Disaster Risk Reduction (UNISDR) (2015), 19 (a). Although adaptation and disaster risk reduction are not the same, both concepts overlap and complement each other, see: O’Brian et al. (2012), p. 443. 216 Nicholls (2007), p. 8. 217 Spiekermann and Franck (2014), p. 77; Mason & Keall v Bay of Plenty Regional Council (EnvC), A098/07 on 30.11.2007, especially see at [59]. 218 Reconciling different interests is sometimes also seen as the purpose of law: Pound (1968), p. 64 f. 219 McDonald (2010), p. 241. 220 See below: Sect. 5.5.11. 221 Lavell et al. (2012), p. 45. 222 Slovic et al. (2011), p. 9.

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occurred lately, they have a smaller impact on the risk perception and the decisions made due to that perception than their objective probability would justify.223 Moreover, affected residents, e.g. people living on a floodplain, often ignore the uncertainty of natural hazards and e.g. see floods as repetitive, cyclical phenomena. These misconceptions, as well as the impression to be safe because of protection works, can be detrimental for coastal adaptation.224 Similarly, decision-makers usually do not take additional steps after taking one action (independent what type of action is taken or if it is the most effective one) which is likely due to the first action reducing the feeling of worry or vulnerability.225 People in general also value post-disaster recovery over pre-event risk reduction, which makes it harder to politically justify spending public money on the latter.226 However, coastal adaptation should provide objective not subjective safety. Besides the above mentioned misconceptions, concrete, immediate benefits are usually hard to sacrifice for the sake of abstract, distant goals. Events in the distant future like the occurrence of coastal flooding in 50 years or more are an example of the latter.227 In order to overcome these challenges, effective adaptation to climate change needs a legal framework that requires planning and decision-making processes to adequately consider coastal hazard risks over a long timeframe and to pursue risk reduction beyond one action.

2.8.3

The Role of Law

Hence, a legislative framework that enables adaptation and provides legitimacy and enforceability of adaptation action228 is essential for effective coastal adaptation.229 Another reason for this is that stakeholder’s decisions are highly influenced by the relevant legal framework, in particular concerning property rights, compensation, liabilities and development controls.230 One of the former presidents of the German Federal Constitutional Court even describes law as the crucial instrument of power of the state to regulate, shape and transform society.231 Legislation should determine the responsibility for coastal adaptation and strategies to cope with rising sea levels as well as provide clear rules on crucial issues like

223

Weber (2006), pp. 107 and 114. Slovic et al. (2011), p. 7. 225 Weber (2006), p. 115. 226 Boston and Lawrence (2018), p. 42. 227 Weber (2006), p. 110. 228 McDonald (2013), p. 126. 229 Klein et al. (2001), p. 538. 230 Abel et al. (2011), p. 280. The study included the US, Australia, and New Zealand. 231 Papier (2011), p. 189. 224

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liability and compensation.232 Existing coastal regulations that may have been apt to deal with coastal hazards in the past may not guarantee adequate protection in the future.233 They may need to be amended e.g. in order to adequately take into account increasing coastal hazard risks.234 The legal framework is a key instrument for coastal adaptation to rising sea levels since it determines which adaptation actions are allowed to be taken and thus constitutes the basis to implement adaptation actions and can either support or deter adaptation. The relevant law should, therefore, give a strong mandate and the necessary action framework for the responsible state agencies. Enabling the key actors to make suitable decisions is necessary for effective adaptation to rising sea levels. This does not only require to take into account the regional and local variability of climate change impacts but also the need to cope with uncertainty and rapid changes.235 The following two chapters examine how the legal frameworks in Germany and New Zealand currently provide for and enable coastal adaptation to rising sea levels.

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C, implications for coastal areas. Philosophical Transactions. Series A, Mathematical, Physical, and Engineering Sciences, 376, 20160448. Nicholls, R. J., & Cazenave, A. (2010). Sea-level rise and its impact on coastal zones. Science, 328, 1517–1520. http://science.sciencemag.org/content/sci/328/5985/1517.full.pdf Norddeutscher Rundfunk. (2017a). Leben mit dem Wasser, So schützt sich Hamburg. Retrieved March 19, 2020, from https://www.ndr.de/kultur/geschichte/chronologie/ hochwasserschutzhamburg101_page-1.html Norddeutscher Rundfunk. (2017b). Meeresspiegel könnte schneller steigen. Retrieved March 19, 2020, from http://www.tagesschau.de/inland/meeresanstieg-101.html Norddeutscher Rundfunk. (2020). Die Nacht, in der das Wasser kam. Retrieved March 19, 2020, from https://www.ndr.de/geschichte/chronologie/Sturmflut-1962-Als-Hamburg-im-Wasserversank,grossesturmflut2.html Norddeutsches Klimabüro [ed.] Nordseesturmfluten im Klimawandel: Wissenschaftlicher des Helmholtz-Zentrums Geesthacht fassen aktuellen Forschungsstand zusammen, Geesthacht. O’Brian, K., Pelling, M., Patwardhan, A., Hallegatte, S., Maskrey, A., Oki, T., et al. (2012). Toward a sustailable and resilient future, managing the risks of extreme events and disasters to advance climate change adaptation: A special report of working groups I and II of the intergovernmental panel on climate change (pp. 437–486). Cambridge, UK and New York, NY, USA. Officials’ Committee for Domestic and External Security Coordination. (2007). National hazardscape report. Wellington. Papier, H.-J. (2011). Veranlassung und Verantwortung aus verfassungsrechtlicher Sicht. Deutsches Verwaltungsblatt, 126, 189–196. Parliamentary Commissioner for the Environment. (2015). Preparing New Zealand for rising seas: Certainty and uncertainty. Peart, R. (2005). The community guide to coastal development under the Resource Management Act 1991. Auckland: Environmental Defence Society. Pfeffer, W. T., Harper, J. T., & O’Neel, S. (2008). Kinematic constraints on glacier contributions to 21st-century sea-level rise. Science, 321, 1340–1343. Pilkey, O. H. (2016). Retreat from a rising sea: Hard choices in an age of climate change. New York: Columbia University Press. Pilkey, O. H., & Young, R. S. (2005). Will Hurricane Katrina impact Shoreline Management?, Here’s why it should. Journal of Coastal Research, 21, iii–ix. Pound, R. (1968). Social control through law. Archon. Prather, M., Flato, G., Friedlingstein, P., Jones, C., Lamarque, J.-F., Liao, H., et al. (2013). Annex II, Climate system scenario tables. In IPCC, 2013: Climate change 2013: The physical science basis.: Contribution of working group I to the fifth assessment report of the intergovernmental panel on climate change. Cambridge: Cambridge University Press. Quilter, P. W., van Ballegooy, S., & Reinen-Hamill, R. (2015). The effect of sea level rise on liquefaction vulnerability, a case sutdy for consideration of development on coastal plains and reclamations. The effect of sea level rise on liquefaction vulnerability: A case study for consideration of development on coastal plains and reclamations, Australasian coasts & ports conference 2015. Reeve, D., & Fleming, C. (2004). Coastal engineering, process, theory and design practice. London: Spon Press. Reise, K. (2015a). Kurswechsel an der Nordseeküste, Warum und wieso schon jetzt? In K. Reise & A. S. MacLean (Eds.), Kurswechsel Küste: Was tun, wenn die Nordsee steigt?, Hanse-Thesen zur Klimaanpassung (pp. 63–74). Kiel: Wachholtz. Reise, K. (2015b). Tideflüsse und Hafenstädte. In K. Reise & A. S. MacLean (Eds.), Kurswechsel Küste: Was tun, wenn die Nordsee steigt?, Hanse-Thesen zur Klimaanpassung (pp. 151–192). Kiel: Wachholtz. Reisinger, A., Kitching, R. L., Chiew, F., Hughes, L., Newton, P. C., Schuster, S. S., et al. (2015). Australaisa. In Intergovernmental Panel on Climate Change (IPCC) (Ed.), Climate change

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2014: Impacts, adaptation and vulnerability, volume 2, regional aspects: Working Group II contribution to the IPCC fifth assessment report (pp. 1371–1438). Cambridge: Cambridge University Press. Risken, J. L., Fraser, J. G., Rutter, H., & Gadsby, M. (2015). Implications of sea level rise on liquefaction vulnerability in Christchurch. Christchurch. Rohde, H., & Petersen, M. (1977). Sturmflut. Neumünster: Wachholtz. Rosendahl Appelquist, L., Balstrøm, T., & Halsnæs, K. (2016). Managing climate change hazards in coastal areas: The Coastal hazard wheel decision-support system. Catalogue of hazard management options. Rotzoll, K., & Fletcher, C. H. (2012). Assessment of groundwater inundation as a consequence of sea-level rise. Nature Climate Change, 3, 477–481. Rouse, H., Bell, R. G., Lundquist, C. J., Blackett, P. E., Hicks, D. M., & King, D. N. (2016). Coastal adaptation to climate change in Aotearoa-New Zealand. New Zealand Journal of Marine and Freshwater Research, 51, 183–222. Rupp-Armstrong, S., & Nicholls, R. J. (2007). Coastal and Estuarine retreat, a comparison of the application of managed realignment in England and Germany. Journal of Coastal Research, 236, 1418–1430. Schirmer, M. (2007). Land unter?, Klimawandel, Küstenschutz und Risikomanagement in Nordwestdeutschland: die Perspektive 2050. München: oekom verlag. Schirmer, M. (2016). Küstenschutz im 21. Jahrhundert, Niederländische und deutsche Konzepte im Vergleich. Geographische Rundschau, 4, 18–25. Schuchardt, B., & Schirmer, M. (2005). Klimawandel und Küste: Die Zukunft der Unterweserregion. Heidelberg: Springer. Schuster, S. S. (2013). Natural hazards and insurance. In J. Palutikof et al. (Eds.), Climate adaptation futures (pp. 133–140). Chichester: Wiley-Blackwell. Schüttrumpf, H., Grimm, C., Bachmann, D., Fortmann, J., & Kutschera, G. (2014). HoRisK-A Schlussbericht Hochwasserrisikomangement für den Küstenraum: Versagen von Küstenschutzanlagen und Schäden. Aachen: Rheinisch-Westfälische Technische Hochschule (RWTH). Seiberling, S., & Stock, M. (2009). Renaturierung von Salzgrasländern bzw. Salzwiesen der Küste. In S. Zerbe & G. Wiegleb (Eds.), Renaturierung von Ökosystemen in Mitteleuropa (pp. 183–208). Heidelberg: Spektrum, Akademischer Verlag. Sen, T. K. (2009). Fundamentals of seismic loading on structures. Chichester: Wiley. Slovic, P., Kunreuther, H., & White, G. F. (2011). Decision processes, rationality and adjustment to natural hazards. In P. Slovic (Ed.), The perception of risk, risk, society and policy series (pp. 1–31). London: Earthscan. Smith, M. D., Murray, A. B., Gopalakrishnan, S., Keeler, A. G., Landry, C. E., & McNamara, D. (2015). Geoengineering coastlines?, From accidental to intentional. In J. Baztan et al. (Eds.), Coastal zones: Solutions for the 21st century (pp. 99–122). Burlington: Elsevier Science. Speybroeck, J., Bonte, D., Courtens, W., Gheskiere, T., Grootaert, P., Maelfait, J. P., et al. (2006). Beach nourishment: an ecologically sound coastal alternative?, A review. Aquatic Conservation: Marine and Freshwater Ecosystems, 16, 419–435. Spiekermann, J., & Franck, E. (2014). Anpassung an den Klimawandel in der räumlichen Planung: Handlungsempfehlungen für die niedersächsiche Planungspraxis auf Landes- und Regionalebene, Hannover. Staatskanzlei Schleswig-Holstein. (2017). Sturmflut an der Ostseeküste. Stammer, D., Nichols, R., & van de Wal, R. (2017). Regional sea level change and coastal impacts: Science and implementation plan. Steffen, W., Rockström, J., Richardson, K., Lenton, T. M., Folke, C., Liverman, D., et al. (2018). Trajectories of the Earth system in the anthropocene. Proceedings of the National Academy of Sciences of the United States of America, 115, 8252–8259. Stephens, S. (2015). The effect of sea-level rise on the frequency of extreme sea levels in New Zealand. Prepared for Parliamentary Commissioner for the environment. Hamilton.

References

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Sterr, H. (2008). Assessment of vulnerability and adaptation to sea-level rise for the coastal zone of Germany. Journal of Coastal Research, 242, 380–393. The BACC II Author Team. (2015). Second assessment of climate change for the Baltic Sea Basin. Cham: Springer. The Geneva Association. (2009). The insurance industry and climate change: Contribution to the global debate. Geneva. The Royal Society of New Zealand. (2016). Climate change implications for New Zealand. Wellington: Royal Society of New Zealand. Tobey, J., Rubinoff, P., Robadue, D., Jr., Ricci, G., Volk, R., Furlow, J., et al. (2010). Practicing coastal adaptation to climate change, lessons from integrated coastal management. Coastal Management, 38, 317–335. Umweltbundesamt. (2015). Monitoiringbericht 2015: zur Deutschen Anpassungsstrategie an den Klimawandel. Bericht der Interministeriellen Arbeitsgruppe Anpassungsstrategie der Bundesregierung. Dessau. UNESCO. (1997). Planning for coastline change: Guidelines for construction setbacks in the Eastern Caribbean Islands. Paris. United Nations Office for Disaster Risk Reduction (UNISDR). (2015). Sendai framework for disaster risk reduction 2015–2030. Geneva. Vollmer, E. (1973). Lexikon für Wasserwesen, Erd- und Grundbau, Uni-Taschenbücher. Stuttgart: Fischer. Watson, D., & Adams, M. C. (2011). Design for flooding: Architecture, landscape, and urban design for resilience to flooding and climate change, Engineering case studies online. Hoboken: Wiley. Weber, E. U. (2006). Experience-based and description-based perceptions of long-term risk, why global warming does not scare us (Yet). Climatic Change, 77, 103–120. Weichbrodt, F. (2008). Coastal Groynes in Germany. Die Küste, 74, 241. Weser-Kurier. (2020, February 13). Wangerooge: 80 Prozent des Badestrandes sind verschwunden. Weser-Kurier. Retrieved April 02, 2020, from https://www.weser-kurier.de/ region/niedersachsen_artikel,-wangerooge-80-prozent-des-badestrands-sind-verschwunden-_ arid,1897100.html Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU). (2006). Die Zukunft der Meere - zu warm, zu hoch, zu sauer: Sondergutachten. Berlin. Wong, P. P., Losada, I. J., Gattuso, J. P., Hinkel, J., Khattabi, A., McInnes, K. L., et al. (2014). Coastal systems and low-lying areas, Climate change 2014: Impacts, adaptation, and vulnerability. Cambridge: Cambridge University Press. WWF Deutschland. (2015). Klimaanpassung an weichen Küsten, Fallbeispiele aus Europa und den USA für das schleswig-holsteinische Wattenmeer, Klimaanpassung an weichen Küsten: Fallbeispiele aus Europa und den USA für das schleswig-holsteinische Wattenmeer, Husum. Zhu, X., Linham, M. M., & Nicholls, R. J. (2010). Technologies for Climate Change Adaptation Coastal Erosion and Flooding, Danmarks Tekniske Universitet, Risø Nationallaboratoriet for Bæredygtig Energi. TNA Guidebook Series

Chapter 3

Legal Framework for Coastal Adaptation to Rising Sea Levels in Germany

The purpose of this chapter is to analyze if and to what extent the current legal framework in Germany enables adaptation to rising sea levels. The regulations examined mostly relate to either flood protection or climate change adaptation. The chapter begins with a brief introduction to Germany’s legal system, before moving on to risk assessment and funding. After exploring these general issues, the chapter’s focus shifts towards the different coastal adaptation strategies, starting with the dominating ‘protect’ strategy. First of all, this includes regulations on protection structures, primarily on dikes that characterize the mainland coast of the German North Sea. In this context, the role of property rights is examined with regard to expropriation. The investigation then continues by addressing flood-resistant design and insurance as examples of an accommodation strategy. Legal instruments of spatial and land use planning on limiting further development are subsequently explored. Afterwards, the thesis addresses whether a retreat strategy could be implemented under the existing law, particularly with regards to property rights. The chapter continues with an examination of intersecting areas like nature conservation that impact coastal adaptation. In this context, state liability for inadequate coastal adaptation is explored since this also constrains state action. As a final step, the current regulations are evaluated and suggestions for improvement made.

3.1 3.1.1

Introduction Overview of Germany’s Legal System

The following section will provide some basic information about Germany as a state and its legal system. The overview is limited to the information necessary to understand the German regulations relevant for coastal adaptation to rising sea levels. © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5_3

53

54

3.1.1.1

3 Legal Framework for Coastal Adaptation to Rising Sea Levels in Germany

Germany as a Federal State

Climate change adaptation to rising sea levels impacts regulations on all state levels: federal, state and municipal. From the sixteen states (Länder) that form the Federal Republic of Germany, six states have a coastal zone1 and are therefore subject to this investigation. These are: • North Sea coast: Lower Saxony, Schleswig-Holstein • Tidally influenced rivers (North Sea): Hamburg, Bremen • Baltic Sea coast: Schleswig-Holstein, Mecklenburg-Western Pomerania As apparent from the table, Schleswig-Holstein is the only state that has coastline at the North and the Baltic Sea. Hamburg and Bremen are small (city) states since Hamburg only consists of the city of Hamburg and the small island Neuwerk in the North Sea and Bremen of the two cities Bremen and Bremerhaven. Although from an institutional point of view the municipalities (Städte und Gemeinden) and counties (Landkreise) are part of the executive of the states and do not have legislative powers,2 they still play an important role for coastal adaptation. This is due to the constitutionally guaranteed right to self-government with regard to local affairs,3 which traditionally includes the responsibility for land use planning. Federal laws, as well as state laws, are executed by the states.4 In some cases, federal administration exists, like with regards to the federal waterways.5

3.1.1.2

German Basic Law

Germany has a civil law system, i.e. its legal system is almost entirely based on codified law.6 The German Basic Law (Grundgesetz) as the German Constitution, is the foundation of the whole legal system and every law, whether federal or state law, has to be coherent with it. Incoherent law can be declared unconstitutional and therefore void by the Federal Constitutional Court (Bundesverfassungsgericht).7 Or in the terminology of common law: the legislation is ultra vires the Basic Law.8

See above for a definition of ‘coastal zone’: Sect. 1.2.5. Hellermann (as of 15.05.2018) Art. 28 GG, paragraph no. 20 ff. 3 German Basic Law: GG, Art. 28 (2). 4 German Basic Law: GG, Art. 83. 5 German Basic Law: GG, Art. 87 (1) cl. 1. 6 Robbers (2016), p. 15. 7 German Basic Law: GG, Art. 93 (1) No. 2 and No. 4a, Art. 100 (1) cl. 1, Federal Constitutional Court Act: BVerfGG, §§ 78 cl. 1 and 95 (3). 8 See for this conclusion concerning the judicial review of delegated legislation: Singh (2001), p. 54. 1 2

3.1 Introduction

55

Furthermore, the Basic Law regulates the distribution of legislative power, which lays with the states9 unless the Basic Law transfers this power to the federal state.10 As the legislative powers are governed by the Basic Law, enacting a law beyond the legislative power assigned by the Basic Law makes the law unconstitutional.11 In case of conflicting regulations, federal law takes precedence over state law.12 Most legislative powers relevant for coastal adaptation to rising sea levels, are matters under the concurrent legislative power and are thus distributed between the states and the federal state. Concurrent legislative power means that the states may legislate until and to the extent that the Federal legislator has not exercised its legislative power by enacting a law.13 Relevant matters listed by Art. 74 (1) of the Basic Law include: coastal protection (No. 17),14 spatial planning (No. 13), land law (No. 18), waterways (No. 21) and nature conservation and landscape management (No. 29). Regarding the aforementioned matters, the federal legislator has only partially exercised its legislative power, thus federal as well as state law applies. Since there is no federal legislation on coastal protection, this matter is exclusively governed by state law. Consequently, federal and state legislation both play a role for coastal adaptation to climate change induced sea level rise.

3.1.1.3

European Union Law

The European Union (EU) is a supranational organization formed by 27 European States,15 which have transferred some of their legislative competences to the EU. The (legal) foundations of the EU are the Treaty on the European Union and the Treaty on the Functioning of the European Union.16 Unlike public international law, EU law has direct effect and supersedes domestic law (principle of direct effect and principle of supremacy or primacy).17 According to the principle of direct effect, the EU is not just an organization of states which created mutual obligations among themselves, but also a union of its citizens, imposing obligations on and granting

9

German Basic Law: GG, Art. 70 (1). Most, but not all, of these federal legislative powers are established by German Basic Law: GG, Art. 71–74. 11 An exemplary case is the decision of the Federal Constitutional Court on the State Liability Act, which was declared void because the Federal State had no legislative power, BVerfG, Urteil on 19.10.1982, NJW (1983) 25 (Verfassungswidrigkeit des Staatshaftungsgesetzes). 12 German Basic Law: GG, Art. 31. 13 German Basic Law: GG, Art. 72 (1). 14 Coastal protection is understood as the conservation of the mainland against the sea through technical protection measures. (“die Erhaltung des Festlandes gegenüber dem Meer durch technische Schutzmaßnahmen”), Maunz (as of August 2018) Art. 74 GG, paragraph no. 198. 15 As of April 2020. 16 Treaty on European Union: TEU, Art. 1 (3). 17 See for more information on both principles: Dashwood and Wyatt (2011), p. 235 ff. 10

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Table 3.1 Main legal instruments EU • Floods Directive • Habitats Directive • Birds Directive

Federal state • Federal Water Law • Spatial Planning Act • Water Associations Act • Federal Waterways Act • Joint Task Act • Federal Building Code • Federal Mining Act • Federal Administration Act

State • State Water Acts • Lower Saxonian Dike Act • State Planning Acts • State Nature Conservation Acts • State Construction Regulations • National Park Acts • State-wide land use plans • Regional land use plans

Municipalities • General municipal land use plan • Specific municipal land use plan

rights to them.18 Therefore, the law of the EU is enforceable within the Member States.19 The principle of supremacy or primacy refers to the precedence of EU law over domestic law.20 Due to the two aforementioned principles, EU law fundamentally impacts the German legal system. Among the different forms of legal acts of the EU,21 regulations are most important since they are entirely binding and directly applicable. Directives also play a strong role. Different from regulations, directives are only binding with regard to the result to be achieved. They require implementation by the Member States, leaving form and methods at their discretion. EU law relevant for coastal adaptation is mainly the Floods Directive.

3.1.1.4

Overview Main Legal Instruments

Table 3.1 summarizes the main laws and legal instruments concerning coastal adaptation to rising sea levels in Germany that will be subsequently analyzed in this chapter.

18

Court of Justice of the European Union on 05.02.1963, C-26/62 (Van Gend en Loos v. Administratie der Belastingen). 19 Dashwood and Wyatt (2011), p. 237. 20 Court of Justice of the European Union on 15.07.1964, C-6/64 (Costa v. E.N.E.L.). 21 Treaty on the Functioning of the European Union: TFEU, Art. 288 This article lists all legal acts of the EU.

3.1 Introduction

3.1.2

57

Climate Change Adaptation in Germany (General Overview)

Like all climate change adaptation actions, coastal adaptation to rising sea levels depends on the commitment of the state to enable these changes—at least to a certain degree. Hence, a government that is aware of the potential impacts and challenges of climate change, as well as the necessity to adapt, is more likely to take action than a less concerned one. Germany’s federal government has published a statement on its adaptation strategy to climate change which briefly states general intentions. Although the paper is not very detailed, it acknowledges the need for climate change adaptation.22 Based on this strategic paper, an “action plan for adaptation” was developed, introducing an approach based on four “pillars.” Providing a legal framework that promotes adaptation is one of these pillars. Above all, this includes planning law.23 Regional conferences organized by several states (e.g. those having a coastal zone) and federal institutions are part of the action plan’s adaptation concept.24 Adaptation strategies also exist on a more regional level, developed by some of Germany’s states. Schleswig-Holstein, for instance, addresses rising sea levels as an adaptation challenge for coastal protection.25 Similarly, Bremen’s strategy states adaptation of coastal protection works to rising sea levels as an important issue.26 Moreover, official bodies publish information and guidance on climate change adaptation. Publications by the Standing Conference of Ministers for Spatial Planning (Ministerkonferenz für Raumordnung), the Federal Ministry of Transport (Bundesverkehrsministerium) or the German Environment Agency (Umweltbundesamt), for instance, address climate change adaptation.27 Some of the advice and guidance published by those state institutions is aimed at climate change adaptation by the municipalities.28 Other projects address regional climate change adaptation, e.g. through studying the impacts in several model regions or a screening tool.29 In addition, several research programs are funded by the German state to, for example, investigate climate change impacts at a regional level.30

22

Bundesregierung (2008). Bundesregierung (2011), especially p. 24 ff. The other pillars are: information, adaptation of federally owned infrastructure and buildings, and international cooperation. 24 Bundesregierung (2011), p. 46. 25 Ministerium für Energiewende, Landwirtschaft, Umwelt, Natur und Digitalisierung SchleswigHolstein (2017). 26 Freie Hansestadt Bremen (2018), p. 20. 27 E.g. Bundesministerium für Verkehr, Bau und Stadtentwicklung (2013a) and Umweltbundesamt (2013, 2015b, 2019). 28 E.g. Umweltbundesamt ‘Klimalotse’. 29 KlimaMoro ‘Raumentwicklungsstrategien zum Klimawandel’. 30 Examples are KLIMZUG-NORD Umweltbundesamt (2016) KLIMZUG-NORD and RADOST. 23

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Another important player in the German context, the European Union, also acknowledges the need to adapt to the impacts of climate change, including rising sea levels and increasing coastal erosion risk. Furthermore, the European Commission’s White Paper recommends developing European guidelines on adaptation in coastal and marine areas.31 Generally, those different initiatives and institutions show that the German governments and institutions are aware of climate change adaptation. The German government also considers an enabling legal framework as a cornerstone for adaptation.

3.1.3

General Plans on Coastal Protection (Generalpläne Küstenschutz)

Detailed information on the coastal (flood) protection concepts of each state can be found in the general plans on coastal protection.32 These general plans contain general information on the coastal area, the organization of coastal protection and detailed information on existing coastal defences. They also set out where defences will be enhanced or sand nourishments conducted. The plans mention sea level rise as a driving factor for coastal protection, although only Schleswig-Holstein addresses this more comprehensively. All plans have a strong focus on technical protection works, which is not surprising given that protection is the dominant strategy.33 These plans are non-statutory documents and thus not legally binding34 and cannot serve as a legal basis for state action. Notwithstanding, the general plans on coastal protection are highly important in practice.35 Thus, they are key documents for coastal adaptation to rising sea levels. Hence, decisions on protection strategies are made on the state level. Another key point is that the factual circumstances on which the general plans are based are the same for spatial planning and as such the plans provide expert opinion for the weighing process.36

31

Commission of the European Communities (2009), pp. 3 and 12. Generalplan Küstenschutz Niedersachsen/Bremen - Festland; Generalplan Küstenschutz Niedersachsen - Ostfriesische Inseln; Generalplan Küsten-und Hochwasserschutz MecklenburgVorpommern; Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012. 33 See above: Sect. 2.5.2. 34 The general coastal (and flood) protection plans are considered to be special water management plans, see: Bosecke (2005), p. 424. 35 Czybulka (2000), p. 690. 36 Bosecke (2005), p. 421. 32

3.2 Risk Assessment and Hazard Mapping

3.2

59

Risk Assessment and Hazard Mapping

First of all, adaptation decisions need to be based on information about coastal hazard risks, knowing the nature and extent of the challenges ahead. Coastal erosion risk is only sparsely addressed by the non-statutory general plans on coastal protection, which only address erosion risk with respect to counteracting measures like sand nourishments or groynes.37 This is not surprising since Germany mainly focuses on a ‘holding the line’ strategy. While coastal erosion risk is not subject to legal regulations, coastal flood risk is regulated in detail by the Floods Directive of the European Union (Directive 2007/ 60/EC)38 and its implementation by the Federal Water Act of Germany.39 To a large extent the German implementation paraphrases or directly references the provisions of the Floods Directive. The purpose of the aforementioned directive is to reduce the adverse consequences of floods for human health, the environment, cultural heritage, and economic activity.40 Before the implementation of the Floods Directive, flood risks were only evaluated for flood events that may occur once in a hundred years.41 Since the Floods Directive defines ‘flood risk’ as the combination of the probability of a flood event and of the potential adverse consequences for the subjects of protection established by Art. 1 of the directive, less frequent flood events have to be considered as well.42

3.2.1

Staged Process Under the EU Floods Directive

The Floods Directive uses a staged process involving the creation of different documents (Fig. 3.1). The risk assessment has to comply with Art. 4 (2) of the Floods Directive which establishes detailed requirements of sources to be used, such as descriptions of

37

See e.g. Generalplan Küsten-und Hochwasserschutz Mecklenburg-Vorpommern, p. 36 f; Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 51 ff; Generalplan Küstenschutz Niedersachsen - Ostfriesische Inseln, p. 22 f. 38 A directive of the European Union is only binding upon the Member States as to the result to be achieved, but leaves the choice of form and methods to the national authorities, Treaty on the Functioning of the European Union: TFEU, Art. 288 (3) Directives therefore need to be implemented into national law. See also above: Sect. 3.1.1.3. 39 See for a detailed description and analysis with respect to fluvial floods: Jablonski (2014), p. 120 ff. 40 Directive 2007/60/EC on the assessment and management of flood risks, Art. 1. 41 Wagner (2008), p. 774. 42 According to Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 No. 3 (a) floods with a low probability have to be considered for the flood hazard maps. Therefore, it is necessary to include less probable floods also in the previous step of assessing the flood risks. See for the same conclusion although for different reasons: Wagner (2008), p. 775.

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Art. 4 Floods Directive / § 73 Federal Water Act Preliminary flood risk assessment

Art. 6 Floods Directive / § 74 Federal Water Act Flood hazard maps

Flood risk maps

Art. 7 Floods Directive / § 75 Federal Water Act Flood risk management plans Fig. 3.1 Instruments under the Floods Directive

previous floods or assessments of potential adverse consequences of future floods.43 The Floods Directive requires the Member States to identify those areas for which they conclude that potential significant flood risks exist or might be considered likely to occur.44 Hence, this regulation introduces an explicit legal obligation of the responsible agencies45 to assess flood risks in a formalized and uniform procedure.46 Risk assessments also need to include long-term developments like the impacts of climate change on the occurrence of flood events.47 With regard to the potential consequences of climate change impacts, the European Commission recommends to investigate and consider several climate change scenarios, including a ‘worst case scenario’ and take into account the latest available information on climate change.48

3.2.2

Flood Hazard and Flood Risk Maps

Following the preliminary risk assessments, flood hazard maps (Gefahrenkarten) and flood risk maps (Risikokarten) are prepared.49 While flood hazard maps Federal Water Act: WHG, § 73 (2). Federal Water Act: WHG, § 73 (1) cl. 1 implementing Directive 2007/60/EC on the assessment and management of flood risks, Art. 5. 45 The responsibility for flood protection is determined by State law, usually the water authorities. 46 Czychowski and Reinhardt (eds) (2014), § 73 WHG, p. 1080 f. paragraph no. 4. 47 Federal Water Act: WHG, § 73 (2) in conjunction with Directive 2007/60/EC on the assessment and management of flood risks, Art. 4 (2). 48 European Commission (2009), p. 77. 49 Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 implemented by Federal Water Act: WHG, § 74. 43 44

3.2 Risk Assessment and Hazard Mapping

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concentrate on the geographical area which might be flooded, the flood risk maps focus on the potential adverse consequences.50 Flood hazard maps have to cover the geographical areas that could be flooded according to one of three scenarios:51 • Floods with a low probability, or extreme event scenarios • Floods with a medium probability (likely return period
100 years) • Floods with a high probability (where appropriate). In Germany, flood hazard maps for coastal areas with an adequate level of protection are limited to floods with low probability or extreme event scenarios.52 Coastal protection works, in particular, can grant the required level of protection,53 and therefore this applies to the defended German coastal zones. Flood hazard maps have to include the flood extent, water depths or water levels and where appropriate the flow velocity or the relevant water flow.54 Whereas, flood risk maps show the potential adverse consequences of the different flood scenarios taking into account e.g. the number of inhabitants potentially affected and the type of economic activity potentially affected.55 Based on the flood hazard and flood risk maps, the Member States need to prepare flood risk management plans56 that establish appropriate objectives for the management of flood risks.57 They further include measures to achieve these objectives and address all aspects of flood risk management focusing on prevention, protection, and preparedness.58

3.2.3

Periodic Review

In the light of rising sea levels, Art. 14 of the Floods Directive59 is also important. The provision requires the review and, if necessary, updating of the preliminary

Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 No. 3 and No. 5. Federal Water Act: WHG, § 74 (2) cl. 1 which incorporates Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 (3). 52 Federal Water Act: WHG, § 74 (2) cl. 2. The possibility is granted by Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 (6). 53 Czychowski and Reinhardt (eds) (2014), § 74 paragraph no. 12, p. 1093. 54 Federal Water Act: WHG, § 74 (3) The provision implements Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 (4). 55 Federal Water Act: WHG, § 74 (4) implementing Directive 2007/60/EC on the assessment and management of flood risks, Art. 6 (5). 56 Federal Water Act: WHG, § 75 (1) cl. 1 implementing Directive 2007/60/EC on the assessment and management of flood risks, Art. 7 (1). 57 Federal Water Act: WHG, § 75 (2) cl. 2 implementing Directive 2007/60/EC on the assessment and management of flood risks, Art. 7 (2). 58 Federal Water Act: WHG, § 75 (3) implementing Directive 2007/60/EC on the assessment and management of flood risks, Art. 7 (3). 59 Implementation into German law by Federal Water Act: WHG, § 73 (6), § 74 (6) and § 75 (6). 50 51

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flood risk assessment, the flood hazard maps, the flood risk maps, and the flood risk management plans. Hereby, the likely impact of climate change on the occurrence of floods is taken into account. The time interval set by the directive is every six years. Due to this review interval, all stages of flood risk assessment under the Floods Directive can deal with changing risks and uncertainties and reflect increasing risks e.g. related to rising sea levels. Although the reflected level of risk is always the current one without taking into account future changes, at least regular reviews ensure that the levels of risk are up to date.

3.2.4

Summary and Judicial Review

Due to these regulations, flood risk identification and assessment are quite comprehensive60 and incorporate an apt method to enable coastal adaptation with the fixed review interval of six years. However, it has been criticized that the factual analysis and evaluation of risks that lead risk management have not been used to reduce flood risks yet.61 Spatial planning authorities, for instance, currently do not take into account flood risk assessments and thus neglect other factors like vulnerability.62 Furthermore, judicial review of all of the four instruments under the Floods Directive is restricted in two ways. First of all, they are internal matters of the administration and can therefore only incidentally be reviewed, for instance when particular measures based on § 75 (3) or §78 of the Federal Water Act are judicially reviewed.63 Second, since the assessment of flood risks is always a prognosis, the competent authority has a margin of appreciation (Beurteilungsspielraum)64 that is only subject to limited judicial review. However, the assessment must not be arbitrary and has to use scientific methods.65

60

Similarily: Dohmen (2014), p. 150. Müller (2017), p. 66 f. 62 Greiving et al. (2018), p. 195. 63 This is the opinion of the vast majority, see e.g. Dohmen (2014), pp. 125, 129 and 139 ff. (with further references). With regard to flood risk management plans some authors, however, consider a direct effect on the citizens and thus direct judicial review as possible: Czychowski and Reinhardt (eds) (2014), § 75 WHG, p. 1099, paragraph no. 5. 64 German law distinguishes between Ermessen (discretion) and Beurteilungsspielraum (margin of appreciation) for administrative decisions. ‘Margin of appreciation’ is used in context of interpretation of undefined legal terms. The concept of ‘discretion’ is thus narrower in German than in common law where the term includes both. See: Brinktrine (1998), p. 478 ff. on English common law. 65 Rossi (as of June 2018) § 73 WHG, paragraph no. 7. 61

3.3 Funding

3.3

63

Funding

Since the protect strategy is dominant in Germany, most coastal adaptation funding is allocated to traditional coastal defences like dikes. Concerning those coastal flood protection measures, the cost is usually shared by different legal persons. Costs of building and maintaining coastal protection measures are part of the obligation to carry out these works. They are paid for by the legal person responsible for the building and maintenance,66 for instance, an association for dike maintenance or the states themselves. The associations for dike maintenance finance their expenses partly by fees paid by their members according to their advantage gained by the tasks of the entity.67 However, financial contributions by either the state and/or the federal state are usual. Federal financial contributions are regulated by their own statute, the Act on the Joint Task of the Improvement of the Agrarian Structure and Coastal preservation. On the basis of this statute, the federal state pays 70% and the respective state 30% of the costs for coastal protection measures that enhance the safety level.68 In more detail, the financial contributions are regulated by the Framework for the Joint Task of the Improvement of the Agrarian Structure and of Coastal Preservation.69 Funding is limited to technical flood protection that aims at ‘holding the line’, for instance, enhancing flood protection works or sand nourishments.70 Hence, alternative strategies like accommodation or retreat, are not fundable through this framework. Maintenance costs are explicitly excluded from funding by the framework71 but the state law sometimes establishes the obligation of the state to contribute to the maintenance costs.72 To ensure enough funding to cope with the challenges of climate change at the coast, a special framework was established for the timeframe of 2009 to 2025 which provides up to 25 million Euro of additional federal financial contributions each year. The funding is based on the same principles as the regular framework.73 Furthermore, coastal protection measures can partly be financed by the European Regional Development Fund or the Agriculture and Rural Development Fund, both being programs of the European Union.74 EU funding is also available for adaptation

See for example Bremen State Water Act: BremWG, § 71 (1) cl. 1. Federal Act on Water Associations: WVG, § 30 (1) cl. 1. 68 Joint Task of the Improvement of the Agrarian Structure and of Coastal Preservation: GAKG, § 10 (1) No. 2; Bundesministerium für Ernährung und Landwirtschaft (2017), p. 96; Generalplan Küstenschutz Niedersachsen/Bremen - Festland, p. 33. 69 Bundesministerium für Ernährung und Landwirtschaft (2017). 70 Bundesministerium für Ernährung und Landwirtschaft (2017), p. 96. 71 Bundesministerium für Ernährung und Landwirtschaft (2017), p. 96. 72 Lower Saxonian Dike Act: NDG, § 8; Schleswig-Holstein State Water Act: WasG SH, § 61 (1) cl. 1; Bremen State Water Act: BremWG, § 72 (3). 73 Bundesministerium für Ernährung und Landwirtschaft (2017), p. 114. 74 Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 25. 66 67

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action, the European Regional Development Fund, for instance, explicitly includes funding for climate change adaptation.75 As well as by the LIFE Programme, a funding instrument for environment and climate action.76 Consequently, the financing of coastal adaptation is characterized by its diversity. Up to now, adequate funding does not seem to be an issue in Germany, at least not with regards to coastal defences.

3.4

Protect Strategies

As already mentioned, Germany mainly pursues a protection strategy, thus these are addressed before examining other coastal adaptation strategies. The section on protection strategies starts with clarifying the responsible actors and the permits required for constructing coastal protection works. In particular, the project approval as a special procedure is addressed. Furthermore, the thesis explores how sea level rise is taken into account when calculating the dimensions of the dominating coastal defence, dikes. Afterwards provisions on safeguarding space for future enhancements of protection works and regulations on maintenance as an important part of a protection strategy are investigated before addressing dunes, buffer zones and sand nourishments as soft defences.

3.4.1

Responsible Agencies for Coastal Protection

For coastal protection, the states and the self-governed associations for dike maintenance (Deichverbände) are the main actors. The states’ responsibilities are manifold. Apart from direct responsibilities for protection works, they are the supervision authority of the associations for dike maintenance and exercise their administrative function when granting project approvals. In all states, the administration in this field is organized hierarchical, except for Hamburg, which has no hierarchical administration in general and thus only one competent authority.77 In Lower Saxony and Schleswig-Holstein, the responsibilities are horizontally divided between the water authorities and the dike authorities (Lower Saxony) or the coastal protection authorities (Schleswig-Holstein). Dike and

75 Regulation (EU) No 1301/2013 on the European Regional Development Fund and on specific provisions concerning the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006, Art. 5 (5). 76 European Commission LIFE Programme. 77 The water authority is either the Agency for Environment and Energy, a district office (Bezirksamt) or the Hamburg Port Authority.

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coastal protection authorities are responsible for protection works, while the water authorities carry out more general tasks like the assessment of flood risk.78

3.4.1.1

The Associations for Dike Maintenance (Deichverbände)79

In Germany, the associations for dike maintenance (Deichverbände) have a long history and still play an important role in coastal flood protection nowadays. Dike cooperatives were formed at the North Sea coast in the thirteenth century, where they built, maintained and improved dikes and the tide gates in order to protect settlements from the sea.80 Associations for dike maintenance are self-governed public bodies,81 with the purpose to protect land from storm events and floods.82 The membership is usually compulsory for landowners within the associations’ jurisdictions.83 All members need to contribute either financially or otherwise, e.g. through services.84 The extent of the contributions is determined by the benefit obtained through the tasks of the association.85 These contributions reflect the historical obligation to take part in protecting the land owned. Moreover, this self-governed organization is also expected to ensure the risk awareness of the people living in flood-prone areas awake.86 Delegating the task of flood protection to the associations for dike maintenance does, however, not relieve the state completely of its responsibility. The states retain supervision and influence rights as well as financial commitment.87 The supervision of the associations for dike maintenance is limited to the legality of administrative acts (Rechtsaufsicht).88 Therefore, the suitability of the administrative acts of the associations is not subject to the control exercised by the higher authorities.

78

See e.g. Legal ordinance on the Competences of the Water and Coastal Protection Authorities: WaKüVO. 79 The names of the bodies vary. Some are called water associations. For the purpose of this thesis the term ‘association for dike maintenance’ is used for all self-governed public bodies entrusted with coastal flood protection tasks. 80 Rapsch (1989), Einleitung, paragraph no. 8. 81 Federal Act on Water Associations: WVG, § 1 (1) and (2). 82 Federal Act on Water Associations: WVG, § 2 No. 5. 83 Federal Act on Water Associations: WVG, § 4 (1) 9. The traditional cooperatives for dike maintenance have always been compulsory ones. See: Arenstorff (1972), p. 1. 84 Federal Act on Water Associations: WVG, § 28 (1) and (2). 85 Federal Act on Water Associations: WVG, § 30 (1). 86 This was one of the reasons why Lower Saxony decided to keep the associations for dike maintenance as responsible and not assign these tasks to a public body when enacting the Lower Saxonian Dike Act in 1963. See: Hangen (2013), p. 49 f. 87 Lüders and Leis (1964), § 7, p. 42, comment 1. 88 Federal Act on Water Associations: WVG, § 72 (1).

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Lower Saxony, Schleswig-Holstein, Mecklenburg-Western Pomerania, and Bremen

The water and coastal protection authorities are organized hierarchically with either two or three tiers of administrative bodies.89 Even though the responsibilities are organized differently, numerous similarities exist. The supreme authority (oberste Behörde), for instance, is always assigned to the highest administrative body, usually the competent ministry.90 Higher water authorities (obere Behörden) are state agencies subordinated to a ministry. In Schleswig-Holstein and Mecklenburg-Western Pomerania, these are the state agencies (Landesämter) responsible for the environment.91 Similarly, the Lower Saxonian State Agency for Water Management, Coastal Protection, and Nature Conservation carries out Lower Saxony’s responsibility for coastal and flood protection structures (e.g. on the islands) and exercises of powers arising from the Water or Dike Act.92 The lower authorities (untere Behörden) are mostly the counties (Landkreise) and major cities.93 Additionally, in Mecklenburg-Western Pomerania the State Offices (Staatlichen Ämter) for agriculture and environment are responsible. In SchleswigHolstein, the State Agency for Coastal Protection, National Park and Marine Protection is the lower coastal protection authority.94 Since Bremen consists only of two cities, the competent senator is also the lower water authority for the city of Bremen as is the magistrate of the city of Bremerhaven for his city.95

89

Three levels exist in Schleswig-Holstein concerning the water authorities and MecklenburgWestern Pomerania while Lower Saxony, Bremen and the coastal protection authorities in Schleswig-Holstein have two administrative levels. 90 Lower Saxonian Dike Act: NDG, § 30 (1) for the dike authority and Lower Saxonian State Water Act: NWG, § 127 (1) for the water authority; for Schleswig-Holstein: Legal ordinance on the Competences of the Water and Coastal Protection Authorities: WaKüVO; Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 106 No. 1; Bremen State Water Act: BremWG, § 92 (3). 91 Schleswig-Holstein State Water Act: WasG SH, § 101 (1) No. 2; Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 106 No. 2. 92 These task are assigned by Operating Instruction for the state agency for water management, coastal protection and nature conservation (Betriebsanweisung für den Niedersächsischen Landesbetrieb für Wasserwirtschaft, Küsten- und Naturschutz), § 2. 93 Lower Saxonian Dike Act: NDG, § 30 (2) cl. 1; Lower Saxonian State Water Act: NWG, § 127 (2) cl. 1; Schleswig-Holstein State Water Act: WasG SH, § 101 (1) No. 3; Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 106 No. 3. 94 Schleswig-Holstein State Water Act: WasG SH, § 102 (2) in conjunction with Legal ordinance on the Establishment of the State Agency for Coastal Protection, National Parks and Marine Protection: LKNVO, § 2 (1) No. 1. 95 Bremen State Water Act: BremWG, § 92 (1).

3.4 Protect Strategies

3.4.1.3

67

Special Responsibilities of the Federal State

Although most responsibilities lie with the states, some exceptions exist with regards to the federal waterways. Where coastal protection structures stabilize navigation channels, the Federal Administration of Waterways and Navigation (Wasserstraßenund Schifffahrtsverwaltung des Bundes) is responsible for the maintenance of the Federal waterways, including the protection structures.96 This is, for instance, the case on the East Frisian Islands Borkum and Wangerooge.97 The maintenance of the Federal waterways avoids effects on flood protection that are more than marginal.98 Other federal responsibilities include the protection of the harbor of the island Helgoland and the protection of the base of the island (Inselsockel)99 as well as the operation of tidal barriers that are part of the federal waterway.100

3.4.1.4

Conclusion

To summarize, the administrative structure in the field of coastal protection is not organized differently, but similar to the general administrative structure in the respective states.

3.4.2

Project Approval Procedure (Planfeststellungsverfahren)

The project approval procedure is a special feature in German administrative law,101 usually required for complex projects like infrastructure, landfill sites or flood defences.102 Among other, the procedure includes public participation. In case of impacts on nature and landscape, nature conservation associations also have the right to participate.103 The project approval (Planfeststellungsbeschluss) replaces all administrative permits that would otherwise be required,104 like for instance a

Federal Waterways Act: WaStrG, § 7 (1). Thorenz (2008), p. 165. 98 Federal Waterways Act: WaStrG, § 8 (1) cl. 4 “Unterhaltungsmaßnahmen [. . .] werden so durchgeführt, dass mehr als nur geringfügige Auswirkungen auf den Hochwasserschutz vermieden werden”. 99 Bednarczyk et al. (2008), p. 143; Wasserstraßen- und Schiffahrtsamt Tönning, ‘Der Außenbezirk Helgoland’. 100 Fachausschuss für Küstenschutzwerke (2009), p. 17. 101 Federal Administration Act: VwVfG, §§ 72–78. 102 Kämper (as of 01.10.2018b) § 72 VwVfG, paragraph no. 15 ff. 103 Federal Nature Conservation Act: BNatSchG, 63 (2) No. 6. 104 Federal Administration Act: VwVfG, § 75 (1) cl. 1, so called “concentration effect” (Konzentrationswirkung). 96 97

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building permit or a waiver from nature conservation law. The project approval also takes into account the follow-up measures of the project.105

3.4.2.1

Necessity of a Project Approval Procedure

Any construction, removal or substantial modification of the water body or its watersides are as ‘river works’106 subject to a project approval procedure.107 Flood defences are sometimes qualified as river works108 and are therefore subject to the project approval procedure according to this provision, this e.g. applies to polders.109 Although not all coastal defences fall under the term ‘river works’, the distinction is irrelevant since dikes, dams and coastal protection structures are treated equally to river works.110 Hence, they are subject to the project approval procedure in any case. In case an environmental impact assessment is not necessary, the project approval procedure can be substituted by the simplified project approval procedure (Plangenehmigungsverfahren).111

3.4.2.2

The Procedure

In some cases, a regional planning procedure (Raumordnungsverfahren)112 may be required before initiating a project approval procedure.113 Both, the regional planning procedure and the project approval procedure, enable foresighted planning.114 This aspect will be addressed further in the context of spatial planning.115 In most cases, an environmental impact assessment of the project is part of the procedure.116

Federal Administration Act: VwVfG, § 75 (1) cl. 1. Federal Water Act: WHG, § 67 (2) cl. 2 “Gewässerausbau ist die Herstellung, die Beseitigung und die wesentliche Umgestaltung eines Gewässers oder seiner Ufer.” This includes coastal waters, see: Reffken (as of June 2013) § 107 NWG, § 107 NWG, p. 1, paragraph no. 2. 107 Federal Water Act: WHG, § 68 (1). 108 VG Bremen, Urteil on 30.04.2014, (Planfeststellung für die Erhöhung von Hochwasserschutzanlagen), paragraph no. 19. This case dealt with the enhancement of a dike and the building of a new sheet pile (Spundwand). 109 Schenk (as of February 2017) § 67 WHG, paragraph no. 18; Riese (as of July 2018a) § 67 WHG, paragraph no. 64. 110 Federal Water Act: WHG, § 67 (2) cl. 3. 111 Federal Water Act: WHG, § 68 (2) cl. 1 See for the differences of project and simplified project approval: Leist and Tams (2007), p. 1000. 112 Spatial Planning Act: ROG, § 15 (1) cl. 1 113 Maus (2017), p. 1423, paragraph no. 26. 114 See for the perception of ‘planning’ as foresighted establishment of goals and their realization: Maurer and Waldhoff (2017), p. 480, § 16, paragraph no. 14. 115 See below: Sect. 3.7.1.2.3. 116 Kämper (as of 01.10.2018b) § 72 VwVfG, paragraph no. 53. 105 106

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This includes the investigation, description, and evaluation of significant effects of a project on, among others, human health, water, and climate.117 Moreover, a project approval can already determine issues regarding expropriation.118 Project approvals and simplified project approvals can only be rescinded if either the weighing process had significant shortcomings or procedural requirements were violated. Additionally, recission is restricted to cases where these faults cannot be remedied by amending the plan or by an additional procedure.119 Therefore, in many cases the plan itself will be preserved despite its shortcomings—the reason behind this regulation is to safeguard the plan since it was drafted after a complex project approval procedure.120 With regard to flood protection, for example, the Federal Administration Court explicitly stated that a rescission of a project approval is only possible if the flood situation was completely misjudged. The court emphasized the term ‘completely’.121 Project approval procedure (as required by §§ 68 (1), 67 (2) cl.3 of the Federal Water Law) is summarized in Fig. 3.2.

3.4.2.3

Judicial Review

In 2017, the Code of Administrative Court Procedure was amended and the first instance for project approval procedures concerning public coastal or flood protection measures was assigned to the Higher Administrative Courts.122 The usual three levels of jurisdiction—administrative court, higher administrative court, federal administrative court123—is therefore reduced to only two levels.124 Since the appeal to the Federal Administrative Court must be based on points of law,125 the facts of a case are only examined by the Higher Administrative Courts. The aforementioned amendment aims126 at accelerating the planning and implementation process of coastal and flood protection through abridging the process of judicial review.127

Environmental Impact Assessment Act: UVPG, § 3 in conjunction with § 2 (1). This will be addressed further at Sect. 3.5.2.2. 119 Federal Administration Act: VwVfG, § 75 (1a) cl. 2. 120 Kämper (as of 01.04.2018a) § 75 VwVfG, paragraph no. 23. 121 BVerwG, Beschluss on 05.03.2003, NuR 26 (2004) 520, p. 521. (“völlige [!] Verkennung der Hochwassersituation”). 122 Code of Administrative Court Procedure: VwGO, § 48 (1) No. 10. 123 Code of Administrative Court Procedure: VwGO, § 2. 124 Code of Administrative Court Procedure: VwGO, § 49 No 1 establishes the jurisdiction of the Federal Administrative Court for appeals against judgments of the Higher Administrative Courts. 125 Code of Administrative Court Procedure: VwGO, §§ 49 No 1, 132 and 137 (1). 126 Bundesregierung (2017), p. 33 f. 127 See generally on the abridging function of assigning jurisdiction to the Higher Administrative Court: Bier and Panzer (as of June 2017) § 48 VwGO, paragraph no. 2 f. 117 118

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1. Plan development by the body responsible for the project (Projektträger) e.g. an association for dike maintenance

2. Plan submission to the hearing authority (Anhörungsbehörde) Call for statements of other authorities

Availability for inspection by the public

3. Discussion hearing (Erörterungstermin) Statements by other authorities

Objections by private parties e.g. citizens

4. Weighing (Abwägung) Project plan

Statements

Objections

5. Project approval Fig. 3.2 Project approval procedure

3.4.2.4

Deviating State Provisions

Despite the irrelevance of the distinction between river works and coastal protection structures with regards to the necessity of a project approval,128 the distinction matters with regard to § 68 (2) cl. 2 of the Federal Water Act. According to this provision, state law can exempt coastal protection structures that do not require an environmental impact assessment from the necessity of a project approval procedure.129 Instead, a simpler type of permit may be required, e.g. for the construction or (substantial/minor) modifications of coastal protection works.130 State law may

128

See above: Sect. 3.4.2.1. Which projects require an Environmental Impact Assessment is determined Environmental Impact Assessment Act: UVPG, §§ 6 ff. According to Environmental Impact Assessment Act: UVPG, Annex I No. 13.16 coastal protection structures are subject to a general preliminary test unless State Law makes deviating provisions. With the exception of Bremen, every state has enacted such deviating provisions. 130 Schleswig-Holstein State Water Act: WasG SH, § 63 (2) Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 84 (1) cl. 1. 129

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also only impose a mere obligation to inform the responsible authorities about, for instance, the removal of coastal protection works.131 Without the concentration effect of a project approval, all other permits, e.g. building permits, need to be obtained separately. To sum up, coastal protection works mostly require some kind of permission for construction, substantial modification, and removal. For works on a greater scale, i.e. requiring an environmental impact assessment, a project approval is necessary. Moreover, to speed-up the lengthy planning and implementation process, the State Water Acts privilege coastal protection works in several ways. In Lower Saxony, coastal protection structures can be executed immediately since the suspensive effect of objections and rescissory action is suspended.132

3.4.3

Calculation of Dike Dimensions

The dimensions of a dike (Deichbemessung), above all the height, are crucial factors for determining the safety standard. The dimensions are determined by the states, which use different calculation methods for the storm tide water level for dike design, resulting in some discrepancies. The selection of a calculation method is only subject to judicial review on a limited basis, restricted to its plausibility. In other words, the court's review is restricted to assess whether the calculation was made using an apt method, whether the facts of the case were identified correctly and if the outcome was plausible.133 However, Hamburg, Lower Saxony, and SchleswigHolstein recently agreed to harmonize the calculation methods for dikes at the tidally influenced part of the river Elbe. The calculations for the storm tide water level were made by the Federal Waterways Engineering and Research Institute and include 50 cm of sea level rise (Klimazuschlag).134 The storm tide water level as a parameter shows the importance of considering rising sea levels when calculating dike heights. Although there is no statutory obligation to consider sea level rise, all states do incorporate this parameter for determining the storm tide water level, as apparent from Table 3.2. Moreover, Schleswig-Holstein builds its dikes broader than necessary to enable easy future dike enhancements which are estimated to cope with a sea level rise of 1.5 m.135 Similarly, in Lower Saxony and Bremen, all dikes are designed and constructed in a way that they can be enhanced by another 75 cm later on.136

Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 84 (1) cl. 3. Lower Saxonian State Water Act: NWG, § 109 (4) This suspends the suspensive effect established by Code of Administrative Court Procedure: VwGO, § 80 (1). 133 OVG Lüneburg, Beschluss on 16.07.2012, BeckRS (2012) 53915. 134 Bundesanstalt für Wasserbau (2018), pp. 21 and 24. 135 Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 45 f. 136 Personal communication by Axel Mohr (Senator für Umwelt, Bau und Verkehr, Referat 32 Wasserwirtschaft, Hochwasserschutz, Wasserbau, on 25 January 2017). 131 132

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Table 3.2 Dike heights and sea level rise Lower Saxony and Bremen Mecklenburg-Western Pomerania

Schleswig-Holstein Tidally influenced parts of the Elbe

Sea level rise as a parameter for storm tide water level Sea level rise of 50 cma 15–25 cm of sea level rise per century, structures that will last up to 2070 are required to take into account sea level rise over two centuries, thus 30–50 cm. Dike height shall be between 3.5 m and 4.5 m above sea levelb Sea level rise of 50 cmc Sea level rise of 50 cm

a

The general plan on coastal protection only includes a sea level rise of 25 cm since only after publishing the plan the estimated sea level rise was raised to 50 cm. See: Generalplan Küstenschutz Niedersachsen/Bremen - Festland, p. 26 f.; Spiekermann and Franck (2014), p. 51 b Generalplan Küsten-und Hochwasserschutz Mecklenburg-Vorpommern, p. 29 f c Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 44 f

These designs make future enhancements cheaper and technically easier. Hence, this is an example of existing adaptation measures that take into account future developments. In addition, the storm tide water levels for dike design have to be reassessed in certain time periods: every ten years Hamburg,137 and in Bremen every fifteen years.138 There is no such provision for Lower Saxony, Mecklenburg-Western Pomerania or Schleswig-Holstein.139

3.4.4

Safeguarding Space for Future Enhancements

All State laws restrict buildings close to dikes or other flood protection works. The hereby created protective strip has two main purposes. First, it secures space for future dike enhancements and second, it ensures the accessibility for the protection work for maintenance works or defending the dikes during a storm surge.140 Safeguarding space through mandatory protective strips furthermore ensures enhancing protection works is possible in the future. Henceforth, these provisions enable prospective adaptation. Although this example is limited to one specific adaptation action of one specific coastal defence, it shows that specific provisions can still contribute to coastal adaptation to climate change impacts.

Legal ordinance on Public Flood Protection Works: DeichO, § 4 (1) cl. 2. Bremen State Water Act: BremWG, § 63 (1). 139 Until recently, Schleswig-Holstein State Water Act: WasG SH, § 65 (5) established a ten year review period. The requirement was removed when introducing a new State Water Law in 2020. 140 Mohr (as of February 2020e) § 82, paragraph no. 2. 137 138

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Safety distances of structures or buildings can relate to flood protection works or coastal features. In Lower Saxony and Schleswig-Holstein, the construction or substantial modification of structures within 50 m of the landside of a dike is prohibited.141 In Bremen, any building is prohibited within 20 m of the landside of flood protection work.142 In Hamburg, the width of the protective strip varies between 1 and 15 m depending on the flood protection work.143 Hence, the required safety distances are more extensive in the territorial states than in Hamburg and Bremen. It is likely that this is due to the higher density of population in cities and the spatial boundaries. An example of safety distances relating directly to the coast is the prohibition of buildings within a distance of at least 150 m of the sea under Schleswig-Holstein law.144 In Mecklenburg-Western Pomerania, the water authority must prohibit all buildings within 200 m of the average waterline if it is not compatible with coastal protection.145 Exemptions from these prohibitions can usually be obtained if the structures are compatible with the interest of coastal and flood protection and if the prohibition would either be especially hard in the particular case or if an urgent public interest is given.146 In Lower Saxony and Bremen the exemptions are revocable by law and thus ensure future flexibility.

3.4.5

Maintenance

Coastal protection works are subject to the forces of nature and can be damaged by storms and floods,147 thus their maintenance is an indispensable part of a protection strategy using hard defences. The example of the storm surge 1962 has illustrated the severe consequences of insufficient maintenance.148 All states have therefore established obligations to maintain coastal defences. Lower Saxonian Dike Act: NDG, § 16 (1); Schleswig-Holstein State Water Act: WasG SH, § 82 (1) No. 1. In Schleswig-Holstein this applies for main dikes. For dike providing a lower level of protection, so called “regional dikes” only require a distance of 25 m. 142 Bremen State Water Act: BremWG, § 76 (1). 143 Legal ordinance on Public Flood Protection Works: DeichO, § 6 and 8. 144 Schleswig-Holstein State Water Act: WasG SH, § 82 (1) No. 3; Schleswig-Holstein State Nature Conservation Act: LNatschG SH, § 35 (2) cl. 2. This also aims at safeguarding space and the accessibility of a dike e.g. for maintenance, see: Mohr (as of February 2020e) § 82, paragraph no. 1. 145 Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 89 (1) and (2). The provision also establishes an obligation to inform for the construction, substantial modification or removal of a building. 146 Schleswig-Holstein State Water Act: WasG SH, § 82 (3) cl. 1: “Ausnahmen von dem Verbot des Absatzes 1 sind zulässig, wenn sie mit den Belangen des Küstenschutzes und des Hochwasserschutzes vereinbar sind und wenn das Verbot im Einzelfall zu einer besonderen Härte führen würde oder ein dringendes öffentliches Interesse vorliegt.” Simiarly: Lower Saxonian Dike Act: NDG, § 16 (2); Bremen State Water Act: BremWG, § 76 (2). 147 See for dikes: Lüders and Leis (1964), § 5, p. 35, comment 3. 148 See above: Sect. 2.3.1. 141

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Responsiblity for Maintenance

Responsibilities for maintenance can vary from the responsibility for first construction and between the states. In Lower Saxony, the associations for dike maintenance are responsible for maintaining the dikes and flood barriers on the mainland. On the East Frisian Island, the State of Lower Saxony is responsible.149 Similarly, in Schleswig-Holstein, the state builds and maintains dikes with high protective effect, all dikes on the islands and Halligen and the flood barriers. The associations for dike maintenance, on the other hand, are responsible for all other dikes and all dams,150 including the second dikeline.151 In Mecklenburg-Western Pomerania, the obligation to maintain is assigned to the public bodies—either the associations for dike maintenance or the maintenance collectives (Unterhaltungsverbände).152 In Bremen, the responsibilities fall on the two associations for dike maintenance for the city of Bremen153 and for the city of Bremerhaven to the bremenports GmbH & Co. KG,154 a corporation under private law, owned by the city of Bremen.155 In Hamburg, the water authority is responsible for maintaining those flood protection works that are public property, a particularity of Hamburg law. With regard to all other flood protection works, either the proprietors or the person exercising the factual control over the defence is responsible for its maintenance.156

3.4.5.2

Regulations Concerning the Extent of the Obligation to Maintain

The extent of the maintenance required is very similar among the state laws and only varies with regards to the detailedness of the regulation. In general, the regulations on the obligation to maintain the flood protection works focus on the aim to preserve their protective function.157 More detailed obligations are usually made for the maintenance of dikes in contrast to other protection works. Some State laws explicitly require the enhancement of dikes that are too low or that damages of a dike must

Lower Saxonian Dike Act: NDG, §§ 6 and 7. Schleswig-Holstein State Water Act: WasG SH, § 60 (1). 151 Mohr (as of February 2020c) § 60, paragraph no. 4. 152 Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 73 (1). 153 Bremen State Water Act: BremWG, § 66 (1). 154 bremenports GmBH&Co.KG and Der Senator für Wirtschaft Arbeit und Häfen, p. 6; Der Senator für Wirtschaft Arbeit und Häfen and bremenports GmBH&Co.KG, p. 2. 155 bremenports GmBH&Co.KG ‘Welthafen in guten Händen’. 156 Hamburg State Water Act: HWaG, § 56. 157 Lower Saxonian Dike Act: NDG, § 5 (1) for dikes and protection work of the dike or § 5a for flood barriers; Schleswig-Holstein State Water Act: WasG SH, § 69 (1) cl. 1 for dikes; MecklenburgWestern Pomeranian State Water Act: LWaG MV, § 72 (2) for flood protection works in general; Bremen State Water Act: BremWG, § 65 (2) cl. 1; Legal ordinance on Public Flood Protection Works: DeichO, § 3 (public flood protection works); Legal ordinance on Private Flood Protection Works: PolderO, § 20 (1) cl. 1 (private flood protection works). 149 150

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be repaired.158 Even more specific are requirements to maintain the turf or combat pests.159 Furthermore, all state laws except Mecklenburg-Western Pomerania establish that dikes have to be inspected in a defined interval, e.g. once in spring and once in autumn every year.160 However, those maintenance obligations only relate to ensuring that the dikes are safe in their status quo but do not incorporate adaptation options. Since maintenance refers to the conservation of a predetermined nominal condition,161 an additional obligation to build a dike for the first time is imposed by Schleswig-Holstein and Mecklenburg-Western Pomeranian law if necessary for the public good.162 Since Lower Saxony already has an uninterrupted dike line,163 such an obligation is not necessary. Neither the building nor the maintenance obligations confer individual rights and cannot be enforced in court.164

3.4.6

Dunes

In all three territorial states, dunes are part of the coastal protection concept but the existing regulations on dunes are not as extensive as those on dikes examined above. In order to preserve dunes, all states prohibit or restrict their use.165 Apart from the regulations in the State Water Acts, coastal dunes in Schleswig-Holstein and Mecklenburg-Western Pomerania are additionally regulated by the State Nature Conservation Acts. Both acts, for instance, prohibit driving and camping on coastal dunes outside the marked paths.166 Moreover, dunes can be designated special areas of conservation according to Art. 4 of the Habitats Directive.167 Consequently, 158 Lower Saxonian Dike Act: NDG, § 5 (2) and (3); Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 72 (4); Bremen State Water Act: BremWG, § 65 (2) cl. 2 and cl.3 No. 1 and 2; Legal ordinance on Public Flood Protection Works: DeichO, § 7 (1). 159 Schleswig-Holstein State Water Act: WasG SH, § 69 (2); Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 72 (3); Legal ordinance on Public Flood Protection Works: DeichO, § 7 (4) and (5). 160 Lower Saxonian Dike Act: NDG, § 18; Bremen State Water Act: BremWG, § 63 (2); Hamburg State Water Act: HWaG, § 60 (1) cl. 1; Legal ordinance on Public Flood Protection Works: DeichO, § 10; Legal ordinance on Private Flood Protection Works: PolderO, § 22 cl. 1. 161 Mohr (as of February 2020c) § 60, paragraph no. 2. 162 Schleswig-Holstein State Water Act: WasG SH, § 60 (1) cl. 1; Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 73 (1). 163 Generalplan Küstenschutz Niedersachsen/Bremen - Festland. 164 See also: Mohr (as of February 2020c) § 60, paragraph no. 13 and 14. 165 Lower Saxonian Dike Act: NDG, § 20a (3) in conjunction with § 14 (1); Schleswig-Holstein State Water Act: WasG SH, § 81 (1); Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 87 (1). 166 Schleswig-Holstein State Nature Conservation Act: LNatschG SH, § 33 (1) No. 3; MecklenburgWestern Pomeranian State Nature Conservation Act: NatSchAG M-V, § 27 (2). 167 Examples for Schleswig-Holstein are dunes on Sylt and Amrum, Schleswig-Holstein State Nature Conservation Act: LNatschG SH, Annex I.

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dunes are one of the areas in which coastal protection and nature conservation have the same interest. All in all, the provisions aim at protecting the integrity of the dunes. For adaptation to rising sea levels, it will be important to provide enough space to avoid coastal squeeze168 and to guarantee dune stability e.g. through sand nourishments.169 The dimensions of dunes are calculated by numerical models.170

3.4.7

Buffer Zones

Dunes are also important in their function as buffer zones. Other buffer zones related to coastal protection are the Wadden Sea, the foreshore of dikes, and beaches. Except for Mecklenburg-Western Pomerania, where only usages of the foreland that are inconsistent with coastal protection are prohibited,171 all other state laws regulate the conservation of the dike foreshore.172 Conservation of wetlands like the Wadden Sea and as well as the preservation of the dike foreshores aims to sustain their wave dissipating features. This protects coastal defences and reduces the height required,173 thus these provisions complement the protection strategy. Equally important is the wetland’s significance as a habitat, in particular the Wadden Sea.174 For this reason, the conservation of wetlands and saltmarshes is in the interest of nature conservation and coastal adaptation.

3.4.8

Sand Nourishment

Sand nourishments are regularly used to enhance and preserve beaches and dunes affected by erosion to maintain their functions as buffer zones and natural defences. In Mecklenburg-Western Pomerania, sand nourishments are subject to a permit if they do not require an environmental impact assessment.175 In Schleswig-Holstein, sand nourishments are equal to “other flood defences” if they are conducted in order to protect the coastline and not e.g. to promote tourism.176 Hence, they are subject to

168

See above: Sect. 2.2.3. See below: Sect. 3.4.8. 170 Fachausschuss für Küstenschutzwerke (2009), p. 41 f. 171 Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 87 (2). 172 Lower Saxonian Dike Act: NDG, §§ 21–24; Schleswig-Holstein State Water Act: WasG SH, § 60 (7); Bremen State Water Act: BremWG, § 68; Legal ordinance on Public Flood Protection Works: DeichO, § 11. 173 See above: Sect. 2.5.3.3. 174 See below: Sect. 3.9.1. 175 Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 84 (1) cl. 1. 176 Schleswig-Holstein State Water Act: WasG SH, § 58 (8) cl.2; Mohr (as of February 2020b) § 58, paragraph no. 10. 169

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an approval by the lower coastal protection authority.177 Lower Saxony does not regulate sand nourishments in particular.

3.4.8.1

Environmental Impacts and Impairments

Sand nourishment affects the site from where the material is taken (borrow site) and the site where it is deposited (nourishment site). Borrow and nourishments sites, as well as equipment like pipelines, need to comply with legal requirements, like the avoidance of impacts on the environment and the requirement of an environmental impact assessment.178 Sand extraction fields can be secured by establishing priority or reserve areas under spatial planning law.179 If the site nourished with sand is a protected area under Federal or State Nature Conservation Law, e.g. coastal dunes,180 those regulations have to be met as well. Apart from environmental impact assessments, sand extraction is also subject to other legal requirements like nature conservation law or water law.181 Sand nourishments can constitute impairments for nature and landscape. The State Nature Conservation Acts set different thresholds for when an impairment is given: • Mecklenburg-Western Pomerania: nourishment that exceeds a height or depth of 2 m or an area of 300 m²182 • Schleswig-Holstein: nourishment site more extensive than 1.000 m² or the amount of nourishment material exceeds 30 m3183 Sand nourishments that are conducted for coastal protection purposes exceed those limits by far184 and therefore regularly constitute impairments for nature and landscape. Consequently, the impairments need to be avoided if possible or otherwise compensated or substituted.185 In case of impairments for nature and landscape, the dredging and the deposition of sand require a permit by the competent nature conservation authority.186 In Mecklenburg-Western Pomerania, sand nourishments that are conducted for the purpose of coastal protection are exempt from this permit Schleswig-Holstein State Water Act: WasG SH, § 80 (1) cl. 1. Ausschuß für Küstenschutzwerke der Deutschen Gesellschaft für Erd- und Grundbau e.V. sowie der Hafenbautechnischen Gesellschaft e.V. (1993), p. 303. The terms ‘borrow site’ and ‘nourishment site’ are adopted from Speybroeck et al. (2006), p. 421. 179 See below: p. 3.7.2. 180 Federal Nature Conservation Act: BNatSchG, § 30 (2) No. 6. 181 See for this: Czybulka (2008), p. 84 ff. 182 Mecklenburg-Western Pomeranian State Nature Conservation Act: NatSchAG M-V, § 12 (1) No. 2. 183 Schleswig-Holstein State Nature Conservation Act: LNatschG SH, § 8 (1) No. 2. 184 Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 34 f. 185 Federal Nature Conservation Act: BNatSchG, § 15 (1) and (2). See also below: Sect. 3.9.1.2. 186 Schleswig-Holstein State Nature Conservation Act: LNatschG SH, § 11a (1) and (4); Mecklenburg-Western Pomeranian State Nature Conservation Act: NatSchAG M-V, § 13 (1) No. 1 and 2. 177 178

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by law. However, if an environmental impact assessment is required, the nourishment is subject to a simplified project approval procedure.187 In Lower-Saxony, sand dredging on an area exceeding 30 m² is not classified as an impairment but still made subject to a nature conservation permit.188

3.4.8.2

Further Regulation on Sand Extraction

Sand for coastal protection works like the sand nourishment of beaches is often extracted from marine areas.189 In principle, dredging the sand requires an extraction licence according to § 8 of the Federal Mining Act.190 However, the more specific regulation in § 1 (3) cl. 1 No. 1 of the Federal Waterways Act stipulates that the states may extract material from the seabed in the coastal waters if used for the public interest. Dredging for the purpose of coastal protection, e.g. if the material is used to build dikes,191 complies with this criterion.

3.5

Property Rights

Property rights play an important role in the German legal system that strongly protects the right to property under its Basic Law. Coastal adaptation strategies can infringe property rights where expropriation is unavoidable in order to build or enhance coastal flood protection works or to implement a retreat strategy. Furthermore, property and property rights can be affected by natural processes like erosion.

3.5.1

Erosion and Accretion

While erosion decreases, accretion enhances land. Both are natural processes that reshape coastlines and shift islands, unless they are modified and contained by protective measures. As the land-sea-border changes, the question arises whether the legal boundaries change as well. Regulations vary between federal and state waterways.

Mecklenburg-Western Pomeranian State Nature Conservation Act: NatSchAG M-V, § 13 (5). Lower Saxonian State Nature Conservation Act: NAGBNatSchG, § 8. 189 Czybulka (2008), p. 17. 190 The Federal Mining Act is applicable to the area of the German continental shelf, Federal Mining Act: BBergG, § 2 (3). 191 BVerwG, Urteil on 06.07.1990, NVwZ-RR (1991) 13 (Befugnis zum wirtschaftlichen Abbau von Sand und Kies), p. 14. 187 188

3.5 Property Rights

3.5.1.1

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Federal Waterways

Where land adjacent to a federal waterway is permanently inundated, it becomes part of the water body and property of the Federal State.192 Maritime waterways include the entire area between the mean high water (or the seaward border of inland waterways) and the seaward limit of coastal waters. Coastal protection works or beaches are not part of the waterway.193 The parts of the Wadden Sea falling dry at low tide, remain part of the federal waterway.194 With rising sea levels, inundated coastal land will thus become part of the Federal Waterways, resulting in loss of property of the former landowners. Since only artificial expansions of federal waterways entail compensation, this would not apply to land lost due to rising sea levels.195 Accretions that turn parts of federal waterways into land remain the property of the federal state.196 However, land reclamations or sediment deposits like sand nourishments are not considered as accretions and treated differently by the law. Along maritime waterways or estuaries of inland waterways, the states automatically become the owners of reclaimed land.197 The provision aims at transferring the legal ownership of all reclaimed land and structures related to e.g. coastal protection.198

3.5.1.2

Tidally Influenced Rivers at State Level

With regards to erosion and accretion at tidally influenced rivers that are not federal waterways, State law applies. In Lower Saxony, accreted land of surface water bodies becomes part of the waterside property if the land is above the mean watermark after three years, excluding artificial processes like filling.199 In case of erosion or inundation at tidally influenced water bodies, the land inundated at average high water level (mittlerer Tidehochwasserstand) becomes part of the property of the water body after three years.200 This includes long-term as well as abrupt changes and can not only affect waterside properties but also hinterland 192

The provision applies to inland and maritime waterways. See: Federal Waterways Act: WaStrG, § 3 (1) and (2) cl. 1; Reinhardt and Schäfer (as of 15.09.2017) § 3, paragraph no. 1 f. 193 Federal Waterways Act: WaStrG, § 1 (2). 194 Friesecke (2009), p. 112, paragraph no. 12. 195 Federal Waterways Act: WaStrG, § 3 (2) cl. 2. 196 BGH, Urteil on 22.06.1989, NJW (1989) 2464 (Begriff der Seewasserstraße- Hohwachter Bucht), p. 2467. This applies to all accretions after the 1st of April 1921. The case concerned the Baltic Sea as a maritime waterway. 197 Federal Waterways Act: WaStrG, § 1 (3) cl. 2. 198 Petersen (1989), p. 528. Who denies the applicability due to a narrow interpretation of the boundaries of maritime waterways and thus applies the rules of the civil code (German Civil Code: BGB, §§ 946, 93 and 94) arguing that the deposited material becomes a substantial part of the land. 199 Lower Saxonian State Water Act: NWG, § 42 (1). 200 Lower Saxonian State Water Act: NWG, § 43 (1).

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property.201 In Schleswig-Holstein, accreted land becomes part of the waterside properties three years after it is connected to the former shore area at mean high tide and plants are growing on it.202 Mecklenburg-Western Pomerania’s State Water Act does not contain any regulation on erosion or accretion.

3.5.1.3

Summary

As apparent from the analysis, legal boundaries shift with the physical changes. However, the legal change does not always happen immediately. Rising sea levels are expected to accelerate coastal erosion in most places and thus, coastal land will increasingly be lost to the sea. In legal terms, the land will be lost to the federal state as the owner of the maritime waterways in most cases. Sea level rise therefore also reduces land from a legal point of view. Coastal land is not just permanently inundated but the ownership lost as well.

3.5.2

Expropriation (Enteignung)

Coastal adaptation may make expropriation necessary in some cases, then conflicting with the protection of property rights by Art. 14 (1) of the German Basic Law.203 However, this protection is not absolute but Art. 14 (3) of the Basic Law establishes that expropriation is possible if it meets certain requirements that are set out in the following paragraph. Expropriation is only permissible for the public good and can only be ordered by or pursuant to a law that determines the nature and extent of compensation. Furthermore, the compensation is determined by striking an equitable balance between the public interest and the interests of the affected proprietors.204 Consequently, a legal basis and compensation are necessary for any expropriation. The law on which the expropriation is based has to concretize the criteria of public interest and specify for which projects, under which conditions and for which purposes an expropriation is permissible.205 The legal basis can draw upon different laws like the Federal Water

Lower Saxonian State Water Act: NWG, § 43 (1); Reffken (as of November 2010) § 43, paragraph no. 2. 202 Schleswig-Holstein State Water Act: WasG SH, § 9 (1). Similar: Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 54 (1) Very similar also the 3-year period in case of abrupt avulsion: Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 56. 203 “Das Eigentum und das Erbrecht werden gewährleistet.” 204 German Basic Law: GG, Art. 14 (3). 205 BVerfG, Urteil on 10.03.1981, BVerfGE 56, 249 (Zur Gesetzmäßigkeit der Enteignung), paragraph no. 51. Also BVerfG, Urteil on 18.12.1968, BVerfGE 24, 367 (Hamburgisches Deichordnungsgesetz), paragraph no. 124. “wenn in den Enteignungsgesetzen bestimmt wird, bei welchen Vorhaben und unter welchen Voraussetzungen eine Enteignung zulässig sein soll.” 201

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Act and the State Expropriation Acts, who taken together may allow the expropriation.206 The next section will introduce the relevant legal basis for expropriation in the context of coastal adaptation. When evaluating the negative effects of flood protection measures on property rights, the overall flood protection concept needs to be taken into account, not only the consequences of one particular project approval.207 The rationale that the overall plan needs to be part of the assessment of sub-plans is well established by jurisprudence208 and seems applicable to the coastal adaptation context. Hence, where the constitutionality of an expropriation for one adaptation action is examined, the overall coastal adaptation strategy needs to be part of the assessment.

3.5.2.1

Federal Building Code

Expropriation is permissible under the Federal Building Code for the use of a piece of land according to a designation contained in the specific municipal land use plan.209 This means any designation permitted by § 9 of the Building Code,210 such as the designation of areas for flood protection works.211 However, expropriation is only permitted if required by the public good and if other means would not be reasonable.212 The designation alone does not justify expropriation, on the contrary, the public good needs to compel expropriation with respect to the parcel of land in question. Furthermore, public interest in implementing the designation made is not sufficient but requires an increased objective interest to realize a specific project.213 Thus, the hurdle is set high.

3.5.2.2

Federal Water Act

Although § 71 of the Federal Water Act also contains regulations concerning expropriation, the provision is not an expropriation law itself.214 The regulation 206

BVerfG, Beschluss on 10.05.1977, BVerfGE 45, 297 (Voraussetzungen einer Legalenteignung; Gesetzgebungskompetenz der Länder), paragraph no. 87. 207 VG Köln, Beschluss on 06.07.2005, paragraph no. 51. One of the issues in this case was that the loss of retention areas in one part of the city were to be compensated by creating new retention areas in another part of the city. Similarly for coastal protection: VG Greifswald, Beschluss on 30.10.2019, BeckRS (2019) 32800. 208 BVerwG, Beschluss on 26.06.1992, NVwZ 12 (1993) 572 (Straßenrechtliche Planfeststellung), p. 573. 209 Federal Building Code: BauGB, § 85 (1) No. 1. 210 Petz (as of 2018b) § 85 BauGB, paragraph no. 24. 211 Federal Building Code: BauGB, § 9 (1) No. 16 b). 212 Federal Building Code: BauGB, § 87 (1). 213 Battis (as of 2016b) § 87 BauGB, paragraph no. 3. 214 Riese (as of July 2018b) § 71 WHG, paragraph no. 2.

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enables the project approval authority to determine the permissibility of expropriation when issuing a project approval215 for river works, coastal and flood protection works that serve the public interest.216 An example would be an expropriation necessary to broaden a dike. The project approval authority’s decision on the permissibility is binding for the following expropriation procedure.217 Hence, it has an ‘expropriation pre-effect’ (enteignungsrechtliche Vorwirkung).218 The actual expropriation is based on the State Expropriation Acts.219 Although the permissibility is already decided in the project approval, the owner is not deprived of his or her property until the expropriation is carried out.220 In the separate expropriation procedure, only the necessity of the expropriation is assessed, taking into account whether the least possible interference was chosen (Gebot des geringstmöglichen Eingriffs). Moreover, procedural requirements can be examined and the amount of compensation is determined.221 Due to the expropriation pre-effect of the project approval binding the expropriation authority, the legal basis for the ‘expropriation pre-effect’ of the project approval needs to comply with these requirements of Art. 14 (3) of the Basic Law.222 Although this does not apply to the project approval in general,223 the approval itself has to comply with Art. 14 (3) of the Basic Law to the extent that it regulates the permissibility of expropriation.224 This is convincing since the project approval ‘substitutes’ part of the expropriation decision and otherwise, the requirements of Art. 4 (3) of the Basic Law would not be taken into consideration, which would itself constitute a violation of the right to property. As a result, the permissibility of an expropriation based on § 71 of the Federal Water Act, depends among others on whether it is for the public good. However, this includes private projects that substantially serve the public good.225 The Federal

Federal Water Act: WHG, § 71 (1) cl. 2 stipulates the same for simplified project approvals if rights of third parties are detrimented only insignificantly. However, due to the usually significant effect of expropriation, this provision is criticized as mostly irrelevant. See for instance: Spieth (as of 01.04.2018) § 71 WHG, paragraph no. 4. 216 Federal Water Act: WHG, § 71 (1). 217 Federal Water Act: WHG, § 71 (3). 218 See for the expropriating pre-effect in general: Falter (2016). 219 Explicitly: Federal Water Act: WHG, § 71 (4). See also: Riese (as of July 2018b) § 71 WHG, § 71 WHG, paragraph no. 17. 220 BVerwG, Urteil on 14.05.1992, NVwZ (1993) 477, paragraph no. 23. 221 Fischer (2004), p. 169, paragraph no. 573. 222 Explicitly: Axer (as of 2018) Art. 14 Grundgesetz, Art. 14 GG, paragraph no. 113. 223 Applying this standard to the project approval would demand that the project approval determines for which projects and under which conditions an expropriation is permissible. This is not convincing since the project approval is always granted for a specific project. Moreover, the project approval itself is not a law and cannot substitute a legal basis of a law required by German Basic Law: GG, Art. 14 (3) (“durch Gesetz oder aufgrund eines Gesetzes”). 224 Széchényi and Hopf (2011), p. 363; Jarass (2006), p. 1330. 225 Spieth (as of 01.04.2018) § 71 WHG, paragraph no. 2. 215

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Administrative Court affirms flood protection as a general interest task in principle.226 With regard to projects or plans that serve coastal and flood protection, the Federal Water Act now clarifies that in these cases expropriations are permitted in the public interest.227 Concerning coastal and flood protection works, the regulation further exempts these projects and plans from the necessity to determine the permissibility of the expropriation when issuing a project or simplified project approval.228 This regulation, therefore, amounts to a general permission to expropriate by law if necessary for a coastal or flood protection project.229 The purpose of this provision is to facilitate and speed up these projects.230 An important consequence of the expropriation pre-effect is that judicial review of the permissibility of the expropriation is only possible with regard to the entire project approval. The intention is to avoid additional litigation and speed up river works that serve the public good.231 More extensive state law still applies,232 like the provision in Hamburg law that enables expropriation of, surface waters and real estate close to them in the public interest.233

3.5.2.3

State Expropriation Acts and Federal Water Associations Act

All State Expropriation Acts enable expropriation. Their application besides the Federal Water Act seems permissible where the project approval authority does not rule on the expropriation issue. In these cases, no ‘expropriation pre-effect’ of the project approval exists,234 leaving it the actual expropriation procedure. Reflecting the constitutional requirements, expropriation under any State Expropriation Act is only permissible in the public interest and if the purpose of the expropriation cannot be achieved through other reasonable measures.235 In Mecklenburg-Western Pomerania, expropriations are limited to specific purposes, which do not include coastal

226

BVerwG, Urteil on 22.07.2004, NVwZ (2004) 1507, p. 1509. Federal Water Act: WHG, § 71 (2) cl. 1. 228 Federal Water Act: WHG, § 71 (2) cl. 2. 229 The explanatory note explicitly mentions § 101 of the Saxonian State Water Law which contains a general permission to expropriate, and thus supports this interpretation. See: Bundesregierung (2017), p. 26. See also: Schenk (as of June 2018) § 71 WHG, paragraph no. 17. 230 Bundesregierung (2017), p. 1. 231 Federal Water Act: WHG, § 71 (1) cl 3. See also: Spieth (as of 01.04.2018) § 71 WHG, paragraph no 5. 232 Federal Water Act: WHG, § 71 (2) cl. 3. 233 Hamburg State Water Act: HWaG, § 74 (1). 234 Széchényi and Hopf (2011), p. 363, Footnote 90. 235 Lower Saxonian State Expropriation Act: NEG, § 2 No 1 and 4; Bremen State Expropriation Act, § 1 (1) and § 4; Hamburg State Expropriation Act, § 3 (1) cl. 1; Mecklenburg-Western Pomeranian State Expropriation Act: EntG MV, § 3 (1); Schleswig-Holstein State Expropriation Act: EnteigG SH, § 1. 227

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protection or adaptation.236 Accordingly, expropriation is not permissible for coastal adaptation under Mecklenburg-Western Pomeranian law. In addition, § 40 (1) of the Federal Water Association Act contains another legal basis to expropriate in order to fulfill the responsibilities assigned to the water association, e.g. the protection of real estate from storm surges and floods.237 The expropriation is limited to land located in the jurisdiction of the water association,238 has to serve the public interest and is only permissible if the purpose of the expropriation cannot be achieved otherwise.239 Furthermore, expropriations are only permitted to the extent necessary.240 The expropriation procedure is governed by State law.241

3.5.2.4

Assignment of Ownership (Besitzeinweisung)

Since expropriation procedures often take several years, but sometimes the immediate realization of a project is demanded by public interest, the instrument of assignment of ownership enables quicker action.242 The German law differentiates between the legal ownership/property (Eigentum) and the actual control/possession (Besitz) of the asset. The assignment of ownership (Besitzeinweisung) transfers the actual control and thereby permits the implementation of a construction project before the expropriation has taken place.243 Although the instrument of assignment of ownership already existed in other areas of German law, it is relatively new in the context of the Federal Water Law. § 71a of the Federal Water Act enables the assignment of ownership if construction works need to start immediately to achieve effective coastal or flood protection. The provision does not leave any discretion to the competent authority but requires the application of the project developers. § 116 (1) cl. 1 of the Federal Building Code244 and § 85 (2) cl. 1 of the SchleswigHolstein State Water Act permit the assignment of ownership if the immediate realization is (urgently) required by public interest. This can e.g. be the building of a dike in time to guarantee protection against expected storm surges in autumn.245 Mecklenburg-Western Pomeranian State Expropriation Act: EntG MV, § 2. Federal Act on Water Associations: WVG, § 2 No. 5. 238 Federal Act on Water Associations: WVG, § 40 (2). 239 Federal Act on Water Associations: WVG, § 41 (1) cl. 1 Insofar the provision reflects German Basic Law: GG, Art. 14 (3) cl. 1. 240 Federal Act on Water Associations: WVG, § 41 (2). This reflects the princple of proportionality, see: Giesberts (as of 2011a) § 41 WVG, § 41 WVG, p. 278, paragraph no. 11. 241 Federal Act on Water Associations: WVG, § 43; Giesberts (as of 2011b) § 43, § 43 WVG, p. 283, paragraph no. 3. 242 Petz (as of 2018a) § 116 BauGB, § 116, paragraph no. 1. 243 See Federal Building Code: BauGB, § 116 (3). 244 Bremen State Expropriation Act, § 6 (3) declares Federal Building Code: BauGB, § 116 to be applicable. 245 Mohr (as of February 2020f) § 85, paragraph no. 4. 236 237

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Moreover, the Hamburg State Water Act allows the assignment of ownership if required by flood protection.246 These regulations ensure that timely action is permissible if necessary.

3.5.3

Land Use Regulation

Although land use regulation can also affect property rights, it is not considered as an expropriation but as a so-called “definition of content and limits of property” (Inhalts- und Schrankenbestimmung) that shall be defined by law (Art. 14 (1) cl.2 of the Basic Law).247 Different from the right to life, which has its roots in the naturally existing life, the right to property protects rights created by the legal system.248 In other words, it protects a legal concept. Consequently, the content and extent of what is ‘property’ is defined by the legislator. Limitations derive from the doctrinal conception of Art. 14 of the Basic Law as a so-called institutional guarantee (Institutsgarantie) of property, which impedes changing its essential, fundamental characteristics. An example of such a fundamental attribute is the use of property at the disposal of the owner without requiring a permit by the state.249 Definitions of the content and the limits of property need to be distinguished from expropriation. A clear distinction is necessary since an expropriation requires compensation whereas definitions of content and limits of property do not.250 The distinction is a formal one: while expropriation is the revocation of a specific legal right, e.g. a specific real property, definitions of content and limits of property are abstract legal regulations,251 like the regulation of land use.252 Thus, construction bans are also considered definitions of content and limits of property.253 Concerning the justification of definitions of content and limits of property, for real estate its situational characteristics (Situationsgebundenheit des Eigentums) play an important role. This legal concept, for example, facilitates justifying regulations

Hamburg State Water Act: HWaG, § 74 (5). “Inhalt und Schranken werden durch die Gesetze bestimmt”. ‘Law’ in this context is not limited to Acts by Parliament but means all regulation including legal ordinances or statutes like specific municipal land use plans. See: Papier and Shirvani (as of August 2018) Art. 14, p. 225 paragraph no. 418. 248 Epping (2015), p. 173. 249 Epping (2015), p. 171. 250 There are, however, few and extreme cases in which definitions of content and limits of property may require financial adjustment, see for this: BVerfG, Beschluss on 14.07.1981, GRUR (1982) 45 (Pflichtexemplare). This is similar to the categories of ‘indirect or regulatory expropriation' used in other jurisdictions, see: Winter (2016), p. 181. 251 Epping (2015), p. 192. 252 Papier and Shirvani (as of August 2018) Art. 14, paragraph no. 491. 253 Mohr (as of February 2020e) § 82, paragraph no.3. 246 247

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concerning dikes on waterside property.254 This legal concept basically reflects factual circumstances and allows to take these into account to impose restrictions. Hence, limiting residential land use in areas at risk from coastal flooding or erosion could be justified by the hazardous circumstances reflected in the concept of situation specification. Definitions of content and limits of property can also be justified by the task of public interest (Gemeinwohlaufgabe). Like, for instance, the determination of floodplains255 and the prohibition of trees and shrubberies close to dikes.256

3.6

Accommodation Strategy

The effect of accommodation on property rights, on the other hand, is usually less severe. The next paragraph examines regulations on flood-resistant design as an example of an accommodation strategy and the role of insurance in the context of coastal hazards.

3.6.1

Flood-Resistant Design

3.6.1.1

Specific Municipal Land Use Plans and Construction Regulations

In Germany, requirements for flood-resistant design can be set by specific municipal land use plans. Since the 2018 amendment of the catalogue of permissible determinations, specific municipal land use plans can determine areas where developments have to include structural or technical measures to avoid or reduce damage related to flooding.257 An example would be a requirement to use flood-resistant construction materials.258 Moreover, State Construction Regulations (Landesbauordnungen), which are the pieces of regulation that set requirements for construction and construction material, may also impose flood-resistant design. As a rule, engineered structures (bauliche Anlagen) have to be designed in a way that water cannot cause threats or unacceptable nuisance.259 Based on this general provision, structural

254

BVerwG, Urteil on 22.06.1962, NJW (1962) 2171, p. 2172. BVerwG, Urteil on 22.07.2004, NVwZ (2004) 1507, p. 1508 f. 256 BVerwG, Beschluss on 15.06.1992, NVwZ (1993) 772 (Regelung von Inhalt und Schranken des Eigentums), p. 773. 257 Federal Building Code: BauGB, § 9 (1) No. 16 c). 258 Bundesregierung (2017), p. 33. 259 Bremen Construction Regulation, § 13 (1) cl. 1; Hamburg Construction Regulation: HBauO, § 16; Mecklenburg-Western Pomeranian Construction Regulation: LBauO M-V, § 13; Lower Saxonian Construction Regulation: NBauO, § 13; Schleswig-Holstein Construction Regulation: LBO SH, § 14. 255

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measures like sheet piles can be imposed as a condition for a building permit (Baugenehmigung).260 Placing conditions on administrative acts like granting a building permit, needs to comply with several general restrictions. First of all, conditions cannot be incompatible with the purpose of the administrative act.261 Second, in case the administrative act entails discretion, the discretion must be exercised corresponding to the purpose of the empowerment.262 Furthermore, the condition must comply with the principle of proportionality.263 The principle of proportionality is divided into the four sub-categories of pursuing a legitimate goal, suitability, necessity, and proportionality of means to achieve an end.264 An infringement of the principle of proportionality results in the unlawfulness of the action.265 Thus, requiring a building to use flood-resistant design in an area that is unlikely to be at risk from flooding in the future, would likely be unlawful.

3.6.1.2

Dwelling Mounds and Minimum Floor Levels

Minimum floor levels are another example of flood-resistant design. Minimum heights for the lower edge of front doors (Hauseingangstürunterkante) or the upper edge of the ground floor (Erdgeschossfußbodenoberkante) can be established by land use plans.266 For instance, one of the specific municipal land use plans in the HafenCity in Hamburg where the upper edge of the first floor has to be either 4,5 or 5 m above the street level.267 Example: HafenCity Hamburg In 2001, Hamburg started the still ongoing project of developing a new quarter (“HafenCity”), by turning former port and industrial land into a residential and business district.268 The district’s location at the waterfront of the tidally influenced river Elbe makes adaptation, in particular, the protection against storm surges an important concern for the new neighbourhood. The (continued)

260

Lüers (1996), p. 245. Federal Administration Act: VwVfG, § 36 (3). 262 Federal Administration Act: VwVfG, § 40. 263 Stelkens (as of 2018) § 36, paragraph no. 150. 264 Huster and Rux (as of 15.08.2018a) Art. 20, paragraph no. 192 ff. 265 Maurer and Waldhoff (2017), p. 277 f, § 10, paragraph no. 47 ff. 266 Federal Building Code: BauGB, § 9 (3) cl. 1; Spannowsky (as of 01.05.2018) § 9 BauGB, paragraph no. 155; Söfker (as of October 2019a) § 18 BauNVO, paragraph no. 4. 267 Bebauungsplan Hamburg-Altstadt 39/HafenCity 5, § 2 No. 10. 268 HafenCity Hamburg GmbH (2020) HafenCity development. 261

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importance of this issue also manifests in the circumstance that it is governed by its own legal ordinance.269 In contrast to Hamburg’s other flood protection works, the owners are themselves responsible for the protection.270 Overall, the flood protection concept of the HafenCity focuses on accommodation and e.g. sets a minimum height of protection works, higher lying areas and regulates that the floor level of flats cannot be below that minimum height.271 Furthermore, each building and higher lying area has to be connected to safe public paths, to ensure that the area can be accessed and left during storm surges.272 Setting minimum floor heights and filling up the port area in the Hamburg project was inspired by the traditional dwelling mounds.273 On the Halligen, dwelling mounds still exist and need to be maintained to withstand floods.274 Dwellingmounds need to comply with construction regulations, although their construction, removal and substantial modification may not always require a building permit.275 In any case, a permit of the lower coastal authority is mandatory.276

3.6.1.3

Floodplains

Specific regulations on flood-resistant design exist with regards to floodplains. Floodplains are defined as “areas between surface waters and dikes or high banks and other areas that are inundated or water is flowing through if the water body

See Legal ordinance on the Protection of the HafenCity against Storm surges, § 1 (1) cl. 1. Legal ordinance on the Protection of the HafenCity against Storm surges, § 4 (1) and § 5 (1) cl. 1. 271 Legal ordinance on the Protection of the HafenCity against Storm surges, § 10 (2) and (3), § 11 (1) cl. 1. 272 Legal ordinance on the Protection of the HafenCity against Storm surges, § 13 (1). 273 See above: p. 36 f. In Rostock, a city at the Baltic Sea, artificial elevations and minimum heights for roads and residential buildings were similarly used in flood prone areas, see: Othengrafen (2014), p. 139. 274 Schleswig-Holstein State Water Act: WasG SH, § 60 (2). The responsibilities lies with the municipalities in case the works are in the interest of the public good, otherwise with the landowners. See also: Mohr (2020a), p. 4. 275 See e.g. Schleswig-Holstein Construction Regulation: LBO SH, § 62 (1) and § 63 (1) No. 9 in conjunction with § 2 (1) cl. 2 No. 1; Lower Saxonian Construction Regulation: NBauO, § 60 (1) in conjunction with Annex No.7 and in conjunction with § 2 (1) No. 4. Explicitly: OVG Lüneburg, Entscheidung on 13.05.1996, BeckRS (2005) 21747 (Denkmalrechtliche Schutzwürdigkeit von Wurten). 276 Schleswig-Holstein State Water Act: WasG SH, § 79 (1) cl. 1. This requirement was only introduced in 2020. 269 270

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floods or if areas that serve spillways or water retention.”277 Tidally influenced floodplains are exempt from the regulations on floodplains in §§76-78 of the Federal Water Act unless state law provides otherwise.278 Bremen and Schleswig-Holstein made use of this possibility279 but only extended the regulation to tidal affected areas of waters, but not to the—of course also tide-affected area between the coast and the sea dikes.280 Hamburg enacted its own regulation specifically regulating floodplains in the tidal area of the river Elbe.281 In Lower Saxony and Mecklenburg-Western Pomerania tide affected areas remain excluded. Consequently, coastal areas are mostly exempt from this regulation. However, along tidally influenced rivers in Bremen, Hamburg, and SchleswigHolstein, municipalities need to take into account flood-resistant design when enacting, changing or amending land use plans for floodplains.282 Hence, the provision requires the listed flood protection issues to be included in the weighing process but does not give them priority over other interests nor optimal flood protection.283 Transport infrastructure in floodplains, e.g. roads, have to be built or enhanced according to flood-resistant design.284 For exemptions from the prohibition to establish new development areas in assigned floodplains, flood-resistant design is also required.285

3.6.1.4

General Duty of Care

A provision whose importance is likely to increase with exacerbating flood risk at the coasts, is the general duty of care (allgemeine Sorgfaltspflicht) established by § 5 (2) of the Federal Water Act. According to the aforementioned provision, everyone that might be affected by floods is obliged to take appropriate precautionary measures to prevent adverse consequences and to mitigate damage to the extent possible and reasonable.286 In particular, this includes adapting land use to adverse consequences. This duty of care applies to everyone, including public authorities and other “Überschwemmungsgebiete sind Gebiete zwischen oberirdischen Gewässern und Deichen oder Hochufern und sonstige Gebiete, die bei Hochwasser eines oberirdischen Gewässers überschwemmt oder durchflossen oder die Hochwasserentlastung oder Rückhaltung beansprucht werden”, Federal Water Act: WHG, § 76 (1) cl. 1. 278 Federal Water Act: WHG, § 76 (1) cl. 2. 279 Bremen State Water Act: BremWG, § 57, Schleswig-Holstein State Water Act: WasG SH, § 74 (1) cl. 2. 280 Mohr (as of February 2020d) § 74, paragraph no. 2. 281 Hamburg State Water Act: HWaG, § 53. 282 Federal Water Act: WHG, § 78 (1) cl. 1 and (3). 283 Breuer and Oexle (2018), p. 42. 284 Federal Water Act: WHG, § 78 (7). 285 Federal Water Act: WHG, § 78 (2) No. 9. 286 Federal Water Act: WHG, § 5 (2) Hamburg State Water Act: HWaG, § 52 (2) contains a similar provision. 277

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public bodies.287 Arguably, a duty of care includes to at least move valuable assets to higher stories as a basic accommodation action. Up to now, the general duty of care is not given much importance in the context of coastal adaptation since protection is guaranteed through public protection works and no additional protective measures are required from the potentially affected citizens.288 However, this might also play a role for liability in the future. In case of damage not having taken appropriate precautionary measures could establish contributory negligence.

3.6.2

Insurance

As an instrument to spread risk, insurance for coastal hazards can also serve as an instrument for coastal adaptation. In Germany, insurance for damages caused by storm surges is only available since 2014.289 The price for a storm surge policy depends, among others, on the location of the insured building. In 2014, the rate for a building without a basement worth 260.000 € with the highest excess was estimated to be only 10 € per year in the cheapest zone. The same building on the island Pellworm290 would cost 137 € per year.291 The storm surge policy of a different insurer also depends on the exact location.292 The circumstance that storm surge policies cover only damages caused by flooding, not by wind, makes this issue even more complex. However, storm-related damage is usually covered by building and household content insurances (Gebäude- und Hausratversicherungen) while fluvial floods require natural hazard insurance (Elementarschadenversicherung), which does not include storm surge damage.293 Unlike in other countries like New Zealand,294 insurance does not seem to play a role for coastal adaptation in Germany up to now. This might be due to the strong role of the state in pursuing a protection strategy. It is likely that not many people have purchased insurance for damage caused by storm surges yet since this only became available recently. That even the much longer available insurance against natural hazards is not widely purchased but only covers around 21–27% of all buildings in the German coastal states295 supports this assumption. Consequently, 287

Dohmen (2014), p. 102. Fraktionen der CDU/CSU und SPD (2009), p. 54; Knopp (as of February 2017) § 5 WHG, paragraph no. 56. 289 Lorenz (26 September 2014) Zum Saison-Beginn: Itzehoer Versicherung bietet SturmflutSchutz. 290 According to the insurance, that island is not even one of those most at risk. 291 Lorenz (26 September 2014) Zum Saison-Beginn: Itzehoer Versicherung bietet SturmflutSchutz. 292 ias Internationale Assekuranz-Sonderrisiken GmbH & Co. KG, Sturmflut-Versicherung. 293 Verbraucherzentrale (2019) Versicherungsschutz für Elementarschäden. 294 See below: Sect. 4.10.2. 295 See: Gesamtverband der Deutschen Versicherungswirtschaft e.V. (2019) Mehrheit der Gebäude in Deutschland nicht richtig gegen Naturgefahren versichert. 288

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it seems very likely that the available storm surge insurance does not communicate risk despite offering different rates depending on the location due to its marginal if not even neglectable role. Obviously, this also means that in most cases no insurance will cover the cost for clean up, reconstruction etc. for storm surge damage. Damages caused by coastal erosion is not covered by any insurance at all. Hence, although coastal flood and erosion risk increase due to rising sea levels, these risks are not insured and may entail significant financial costs for affected homeowners.

3.7

Avoidance: Future Development

The next sections focus on the role of spatial and land use planning for avoiding new development in hazard prone areas. Starting with a general introduction to this area of law, its categories and instruments, the section then moves on particular instruments like priority and reserve areas and temporary building permits.

3.7.1

Spatial and Land Use Planning (General)

Apart from stipulating the requirement for flood-resistant design,296 spatial planning and regulation of land use avoid future coastal hazard risk, enable a retreat strategy or safeguard areas for future protection works. Hence, spatial and land use planning are crucial for any coastal adaptation strategy. Apart from the legally binding status, planning documents are usually long-lasting, two factors that make taking climate change adaptation into account in these instruments important.297 The Standing Conference of Ministers responsible for Spatial Planning (Ministerkonferenz für Raumordnung) lists coastal protection as an essential matter for climate change adaptation through spatial planning.298 The importance of spatial planning for coastal adaptation is also due to its role of reconciling and bindingly coordinating different land use demands under the guiding principle of sustainable spatial development.299 The latter already implies that the impact of climate change has to be taken into account.300 Spatial planning can reserve suitable areas for certain uses at an early stage with a long term focus and implement precautionary concepts through its instruments, thus avoid increasing risk.301 In particular, spatial planning can require state, regional and

296

See above: Sect. 3.6.1. Bundesregierung (2008), p. 42. 298 Ministerkonferenz für Raumordnung (2013), p. 1 f. 299 Spatial Planning Act: ROG, § 1 (1) and (2). 300 Reese et al. (2010), p. 342. 301 Stock et al. (2009), p. 111; Bundesinstitut für Bau-, Stadt- und Raumforschung im Bundesamt für Bauwesen und Raumordnung (2016), p. 9. 297

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local planning to take into account preventive flood protection302 or reserve spaces for dike enhancements or floodplains.303 Moreover, spatial planning can secure clay and sand extraction areas which are necessary for enhancing dikes or conducting sand nourishments.304 Apart from avoiding increasing risk through new development, spatial and land use planning are primarily important for preserving adaptation options in the future, for instance, the relocation of a dike line or the creation of a second dikeline. Hence, this can also be a tool to implement foresighted planning.

3.7.1.1

Important Terms

Regarding the legal instruments, different land use plans exist. The German terminology distinguishes between Raumordnungsplänen under the Spatial Planning Act (ROG) and Bauleitplänen under the Federal Building Code (BauGB). Although the terminology is different due to historical reasons, all instruments regulate land use and are therefore translated as “land use plans.” The land use plans vary with respect to the area covered and the detailedness of regulations. They are interrelated.305 When developing land use plans, planning authorities enjoy a wide discretion (Planungsermessen) which also results in a restriction of judicial review.306 Building permits (Baugenehmigungen) are usually required for the construction, substantial modification, change in use or demolition of engineered structures. The aforementioned actions need to comply with the Federal Building Code, the specific municipal land use plan and the relevant Construction Regulations.307

3.7.1.2

Spatial Planning Act (ROG)

The Spatial Planning Act differentiates two main categories used in land use plans: objectives and basic principles of spatial planning (Ziele und Grundsätze der Raumordnung). Table 3.3 briefly introduces these categories. Both can enable integrating climate change adaptation into planning law in general.

302

Lüers (1996), p. 241. Schneider (2005), p. 154; see for risk prevention as one of the main tasks of spatial planning: Heidland (2003), p. 102; Bundesinstitut für Bau-, Stadt- und Raumforschung im Bundesamt für Bauwesen und Raumordnung (2016), p. 28. 304 Ministerkonferenz für Raumordnung (2013), p. 18. 305 See below: Sect. 3.7.1.3. 306 See below: Sect. 5.2.1.2. 307 See for instance: Hamburg Construction Regulation: HBauO, § 62 (1) cl. 1 and MecklenburgWestern Pomeranian Construction Regulation: LBauO M-V, § 64. 303

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Table 3.3 Spatial planning categories

Objectives of spatial planning

Basic principles of spatial planning

Description Binding stipulations in land use plans which are the result of a comprehensive, definitive weighing processb thus not subject to a weighing or discretionary decision of other decisionmakersc Statements in laws or land use plans that establish guidelines for subsequent weighing or discretionary decisionsd

Examples from State-wide land use plan Schleswig-Holsteina General plan on coastal protection is the basis for coastal protection, its development objectives are also objectives of spatial planning

Protection against storm surges and coastal erosion, including a priority to protect people and their homes through dikes and protection works

a

Landesentwicklungsplan Schleswig-Holstein 2010, p. 122 Spatial Planning Act: ROG, § 3 (2) No. 2 c Runkel (as of 2018c) § 3 ROG, paragraph no 67 d Spatial Planning Act: ROG, § 3 (1) No. 3 b

Both categories have a binding effect on public bodies when they carry out or make decisions concerning regionally significant planning or measures308 i.e. plans or measures that either require space or influence the spatial development or function of the area.309 The general plans on coastal protection, for instance, are regionally significant plans.310 Further examples are project approval procedures for a coastal defence, or where coastal protection is carried out by public bodies.311 Since usually either the state or the associations for dike maintenance as public bodies are responsible for coastal protection, this is highly relevant. Safeguarding space for coastal protection is also usually of area and supra-local significance.312 While objectives of spatial planning have to be observed (beachtet) and thus impose a strict obligation, basic principles of spatial planning only need to be taken into account (berücksichtigt) in case of weighing or discretionary decisions.313 If, for instance, an objective of spatial planning defines the location of a project, the competent authority cannot consider different locations. In case of a basic principle of spatial planning, on the other hand, the authority decides on the location itself.314 If regionally significant planning or measures contradict objectives of spatial planning, the spatial authority has the power to prohibit them.315 Hence, these categories

308

The regional significance of plannings or measures depend on the planning area in particular, therefore they might be regionally significant or not in different areas, see: Runkel (as of 2018c) § 3 ROG, paragraph no. 103 f. 309 Spatial Planning Act: ROG, § 3 (1) No. 6. 310 Bosecke (2005), p. 420 f. 311 Wille (2009), p. 90 f. 312 Bosecke (2005), p. 140. 313 Spatial Planning Act: ROG, § 4 (1) cl. 1. 314 Durner (2019), p. 212, paragraph no. 60. 315 Spatial Planning Act: ROG, § 12 (1).

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can strongly impact coastal adaptation. Basic principles of spatial planning can be established by law, as for example preventive flood protection at the coast.316 Furthermore, the Spatial Planning Act requires the states to define open spaces (Freiräume) to guarantee preventive flood protection when drafting land use plans.317 Interestingly, although preventive flood protection is addressed by the Spatial Planning Act, there is no formal requirement to take into account the flood risk maps, flood hazard maps or management plans.318

3.7.1.2.1

Digression: Spatial Planning and Uncertainty

Although planning authorities are not compelled to take into account flood risk and flood hazard maps, they may, of course, rely on them as official information. However, those reflect the current risk and are only adapted to changing risks when reviewed. Therefore, the question arises whether a planning authority may consider sea level rise estimations for the future and whether they can use a more extreme scenario. In general, projections about the extent of future floods are recognized as a highly uncertain prognosis by the Courts.319 As a rule, uncertainty in risk identification and risk assessment must be addressed through sufficiently conservative assumptions, taking into account the level of concern as well as all reasonable scientific findings not only a majority view.320 Well-known from environmental law, the precautionary principle can also be applied to climate change adaptation, for instance, with regard to the uncertain extent of climate change impacts.321 Precautionary actions enable the application of law without requiring the certainty if the actions are actually necessary or if a relationship between cause and effect exists. Hence, the precautionary principle can help to overcome some of the uncertainty issues.322 However, due to their legal bindingness and the entailed need to provide legal certainty and clarity (Bestimmtheitsgebot und Normenklarheit),323 objectives of spatial planning have to be based on sufficiently

Spatial Planning Act: ROG, § 2 (1) and (2) No. 6 cl. 5. Spatial Planning Act: ROG, § 13 (5) No. 2 (d). 318 Reese (2010b), p. 60. 319 BVerwG, Beschluss on 05.03.2003, NuR 26 (2004) 520, p. 522. 320 BVerwG, Urteil on 19.12.1985, NVwZ (1986) 208 (Kernkraftwerk Whyl - Erste Teilgenehmigung), p. 212. “Unsicherheiten bei der Risikoermittlung und Risikobewertung ist nach Maßgabe des sich daraus ergebenden Besorgnispotentials durch hinreichend konservative Annahmen Rechnung zu tragen; dabei darf die Genehmigungsbehörde sich nicht auf eine “herrschende Meinung” verlassen, sondern muß alle vertretbaren wissenschaftlichen Erkenntnisse in Erwägung ziehen.” 321 Fischer (2013), p. 136 f. 322 Appel (2004), p. 332. 323 Runkel (as of 2018c) § 3 ROG, paragraph no. 24. 316 317

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Table 3.4 Responsibility for land use plans

State-wide land use plan Regional land use plans

SchleswigHolstein State planning authoritya

Lower Saxony State government as ordinanceb Countiesd

Mecklenburg-Western Pomerania State planning authorityc Regional planning authoritiese

Schleswig-Holstein State Planning Act: LaplaG SH, § 5 (1) Lower Saxonian Spatial Planning Act: NROG, § 4 (2) c Mecklenburg-Western Pomeranian State Planning Act: LPlG M-V, § 7 (1) d Lower Saxonian Spatial Planning Act: NROG, § 20 (1) cl. 1 e Mecklenburg-Western Pomeranian State Planning Act: LPlG M-V, § 9 (1) cl. 1 a

b

unambiguous prognosis.324 Climate change can be considered where vulnerabilities exist due to extreme events today325 or where a trend apparent from different scenarios is sufficiently clear and certain.326 As a virtually certain consequence,327 sea level rise itself is unequivocal and can serve as a basis for objectives of spatial planning.

3.7.1.2.2

State-Wide and Regional Land Use Plans

Since the Federal government has not yet exercised its competence to develop supraregional land use plans on preventive flood protection,328 land use plans on the state level play a major role in spatial planning. Land use plans of adjacent planning areas have to be coordinated,329 which is important since issues like flooding can affect different planning areas.330 The states have to prepare state-wide land use plans and, based on those, regional land use plans that cover parts of the state. Both are mandatory.331 The responsibility for these land use plans varies, Table 3.4 provides an overview. Those plans are furthermore governed by State laws on spatial planning. Some of those laws contain explicit requirements that state and regional land use plans are 324

Thus, different, partly contradicting climate change scenarios cannot constitute a sufficiently certain basis. 325 Bundesinstitut für Bau-, Stadt- und Raumforschung im Bundesamt für Bauwesen und Raumordnung (2016), p. 46. 326 Bundesministerium für Verkehr, Bau und Stadtentwicklung (2013a), p. 32. 327 See above: Sect. 2.1.1. 328 Spatial Planning Act: ROG, § 17 (2); Runkel (as of 2018b) § 17 ROG, paragraph no. 37. Land use plans on the federal level are an exception. 329 Spatial Planning Act: ROG, § 7 (2) cl. 3: “Raumordnungspläne benachbarter Planungsräume sind aufeinander abzustimmen”. 330 See for this with regard to issues relating climate adaptation in general: Fischer (2013), p. 282 f. 331 Spatial Planning Act: ROG, § 13 (1) cl. 1 and (2) cl. 1“Die Regionalpläne sind aus dem Raumordnungsplan für das Landesgebiet zu entwickeln”.

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subject to a fixed review interval332 or to take into account adaptation to climate change.333 The state-wide land use plan of Lower-Saxony establishes inter alia: • taking into account the climate change adaptation potential of spatial and settlement structures (basic principle of spatial planning)334 • in coastal areas at risk from storm surges, possibilities for risk prevention against flooding need to be included in all planning and for all measures, including areas protected by dikes. Flood-resistant planning and measures are recommended to cope with flood risk335 (basic principle of spatial planning) • protection of the coastline and the East Frisian Islands against damages caused by storm surges and land loss336 (objectives of spatial planning) • preservation of the inhabitability of the islands (objective of spatial planning).337 Despite the reference to flood-resistant design, the stipulations in the state-wide land use plan mainly reflect and promote a protection strategy.

3.7.1.2.3

Regional Planning Procedure

Aside from the state-wide and regional land use plans, the regional planning procedure is the main instrument of spatial planning. While land use plans set abstract regulations, the regional planning procedure focuses on individual plans and projects of area significance (raumbedeutsam).338 Dikes, dams, and land reclamation constructions that have area and supra-local significance, for instance, require a regional planning procedure.339 The states of Bremen and Hamburg are exempt from the regional planning procedure.340 In this procedure, the impacts of the plan or measure on the area are assessed with respect to supra-local aspects by the competent state authority for spatial planning. In particular, the authority examines whether the plan or measure is consistent with the objectives and basic principles of spatial planning. Preventive coastal flood protec-

Mecklenburg-Western Pomeranian State Planning Act: LPlG M-V, § 4 (2) establishes a 5 year interval for state-wide and regional land use plans. Lower Saxonian Spatial Planning Act: NROG, § 5 (7) cl. 1 establishes a 10-year interval for regional land use plans. 333 Schleswig-Holstein State Planning Act: LaplaG SH, § 5 (3) cl. 1. 334 Landesraumordnungsprogramm Niedersachsen: LROP, 1.1. 02. 335 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 03 cl. 9-11. 336 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 03 cl. 1. 337 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 08 cl. 1. 338 Goppel (as of 2018) § 15, paragraph no. 22. Area significance is given when a plan or measure occupies space or influences the spatial development or function of an area, Spatial Planning Act: ROG, § 3 (1) No. 6. 339 Legal ordinance on Spatial Planning (Raumordnungsverordnung): RoV, § 1 cl. 2 and cl. 3 No. 7. 340 Spatial Planning Act: ROG, § 15 (6) cl. 1. 332

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tion and adaptation to climate change are parameters for the assessment since they are statutory basic principles of spatial planning.341 Furthermore, the coordination with other plans and measures of area significance is assessed. In addition, alternative locations ought to be examined.342 Public participation and the participation of other state authorities343 are part of the procedure as well as the assessment of impacts on the environment.344 As a preliminary procedure, changes can usually be made easily to the plan or project at an early stage.345 Consequently, this procedure is ideal for ensuring that climate change is addressed. However, whether or not it is actually accounted for depends on the objectives and basic principles of spatial planning. The outcome of the regional planning procedure is considered to be a mere expert opinion by the Federal Administrative Court. Therefore, the result is not subject to judicial review.346 With regard to a subsequent project approval procedure, the outcome of the regional planning procedure is one of the interests of the weighing process.347 Consequently, the regional planning procedure does not have a strong legal impact although it is important and highly accepted in practice.348

3.7.1.3

Relationship of the Different Types of Land Use Plans

So far, spatial planning under the Spatial Planning Act has been addressed and its limits are to safeguard space and prevent land use since the responsibility for land use planning lies with the municipalities.349 Land use planning is furthermore regulated by a different statute, the Federal Building Code. The municipalities can, for instance, assign areas where development is prohibited or whether existing development needs to be removed to create retention areas to mitigate flood risk.350 Spatial planning and land use planning, however, do not operate separately from each other but are intertwined since land use plans have to be adapted to the objectives of spatial planning.351 This obligation can be enforced by the supervising

Spatial Planning Act: ROG, § 2 (2) No. 6 cl. 5 and 7. Spatial Planning Act: ROG, § 15 (1). 343 Spatial Planning Act: ROG, § 15 (3). 344 Mecklenburg-Western Pomeranian State Planning Act: LPlG M-V, § 15 (2) cl. 2; SchleswigHolstein State Planning Act: LaplaG SH, § 14 (1) cl. 2 and (2) cl. 2; Lower Saxonian Spatial Planning Act: NROG, § 10 (3) cl. 1. 345 Goppel (as of 2018) § 15, paragraph no. 54. 346 Goppel (as of 2018) § 15, paragraph no. 87 ff. 347 Wagner (as of 2012) § 16, p. 583, paragraph no. 66. 348 Goppel (as of 2018) § 15, paragraph no 24. 349 A right guaranteed by German Basic Law: GG, Art. 28 (2) cl. 1. 350 Meyer (2014), p. 92. This is due to the fact that the federal competence for spatial planning does not include land use planning. 351 Federal Building Code: BauGB, § 1 (4). 341 342

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Fig. 3.3 Hierarchy of land use plans

State-wide Land Use Plan Regional Land Use Plan General Municipal Land Use Plan Specific Municipal Land Use Plan

authority and is subject to judicial review by the administrative courts.352 Specific municipal land use plans are legally binding and have to be developed on the basis of the general municipal land use plan,353 leading to the hierarchy visualized by Fig. 3.3. Furthermore, the ‘mutual feedback principle’ or literally translated the ‘countercurrent principle’ (Gegenstromprinzip) plays an important role in German spatial planning. The principle stipulates that plans covering parts of a territory need to take into account the circumstances and needs of the whole area and vice versa.354 This mainly relates to state-wide and regional land use plans but state-wide land use plans need to take into account the whole territory of the Federal Republic of Germany.355 For regional land use plans the further requirement exists to take into account general municipal land use plans.356 Whereas on a procedural level, the ‘mutual feedback principle’ guarantees participation in the plan preparation. On a substantive level, it incorporates taking into account the interdependency of plans on different scopes into the weighing processes and into discretionary decisions.357

3.7.1.4

Land Use Planning

Land use planning is mostly regulated by the Federal Building Code. When preparing a general municipal land use plan or a specific municipal land use plan, the municipalities should promote climate change adaptation in general. More specifically, they have to take into account the concerns of coastal and flood protection, in particular the avoidance and reduction of flood damage.358 Consequently,

352

BVerwG, Urteil on 12.12.1969, BVerwGE 34, 301 (Zur Bindung des gemeindlichen Planungsermessens - behördliche Aufsicht und Kontrolle durch Gericht), paragraph no. 21. 353 Federal Building Code: BauGB, § 8 (2) cl. 1. 354 Spatial Planning Act: ROG, § 1 (3). 355 Runkel (as of 2018a) § 1, paragraph no. 112 ff. 356 Spatial Planning Act: ROG, § 13 (2) cl. 2. 357 Runkel (as of 2018a) § 1, paragraph no. 115. 358 Federal Building Code: BauGB, § 1 (5) cl. 2 and (6) No. 12 “die Belange des Küsten-oder Hochwasserschutzes und der Hochwasservorsorge, insbesondere die Vermeidung und Verringerung von Hochwasserschäden.”

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development in flood-prone areas can only be allowed if safety measures are taken.359 Although climate change adaptation is explicitly mentioned as a matter to be taken into account in the weighing process,360 this does not make it more important than other matters.361 With regard to land use planning, the ‘planning sovereignty’ (Planungshoheit) of the municipalities entails ‘planning discretion’ (Planungsermessen) which is wider than the usual administrative discretion.362 Furthermore, an environmental audit (Umweltprüfung)363 is mandatory which includes meeting the needs of climate change mitigation as well as adaptation.364 However, the environmental audit is restricted to the expected substantial environmental impacts.365 Thus its scope is limited and it does not constitute a ‘climate proofing’ that would identify the consequences of climate change on land use.366 The result is taken into account for the weighing of the plan.367 More generally, land use plans must reconcile all relevant interests in conflict (Gebot der Konfliktbewältigung).368 Although land use plans must take into account flood protection,369 the latter can be outweighed and traded off by other interests.370 Table 3.5 provides an overview of possible determinations concerning coastal adaptation of general and specific municipal land use plans. As apparent from the table, the definitive list of possible regulations in a specific municipal land use plan does not include adaptation to climate change specifically, although some designations can be used to that end. Despite the possible determinations in general municipal land use plans and the directive to develop specific municipal land use plans on their basis, the absence of a requirement to consider climate change adaptations implies that adaptation is not a priority for land use plans. While general municipal land use plans usually cover a timeframe of 10–15 years, there is no specification for specific municipal land use plans.371 There is no review interval.

Dirnberger (as of 01.08.2018a) § 1, paragraph no. 131. Federal Building Code: BauGB, § 1a (5) cl. 2. 361 Dirnberger (as of 01.08.2018b) § 1a BauGB, paragraph no. 41. 362 BVerwG, Urteil on 12.12.1969, VerwRspr (1970) 571, p. 572. 363 Federal Building Code: BauGB, § 2 (4) This is not to be confused with the environmental impact assessment which is necessary in a project approval procedure. 364 Federal Building Code: BauGB, § 1a (1) and (5) cl. 1. 365 Federal Building Code: BauGB, § 2 (4) cl. 1 “[. . .] die voraussichtlichen erheblichen Umweltauswirkungen ermittelt werden [. . .].” 366 Birkmann and Fleischhauer (2009), p. 118. See in detail below p. 3.12.7. 367 Federal Building Code: BauGB, § 2 (4) cl. 4. 368 Battis (as of 2016a) § 1 BauGB, § 1 BauGB, paragraph no. 115. 369 See also: Stüer (2007), p. 19. 370 Umweltbundesamt (2015a), p. 317. 371 Mitschang and Reidt (as of 2016) § 9 BauGB, paragraph no. 165. 359 360

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Table 3.5 Municipal land use plans Scope Possible determinations with regard to coastal adaptation

Indicationse

Reference to other plans

General municipal land use plans Entire area of a municipalitya Not definitive list, examples:b • facilities and actions for climate change adaptation • provisions for building density • preservation of open spaces • areas that have to be kept free for the concerns of flood protection • measures reducing erosion

Specific municipal land use plans Parts of a municipality Definitive list, designation of areas:c • where development is prohibited • for flood protection works • where engineered or technical measures are required to avoid or mitigate flood damage, e.g. on stilts • for earth banks/raising • determinations on type and degree of building and land used

Areas where in case of future construction safety measures against natural hazards like flooding are necessaryf • Floodplains within the meaning of § 76 (2) and (3) of the Federal Water Act • Risk areas (Risikogebiete) within the meaning of § 73 (1) cl. 1 of the Federal Water Actg

Federal Building Code: BauGB, § 5 (1) cl. 1 Federal Building Code: BauGB, § 5 (2) No. 2 c) and No. 7; Mitschang (as of 2019) § 5 BauGB, paragraph no. 17d c Federal Building Code: BauGB, § 9 (1) No 1, No. 10, No. 16 b) and c) and No. 17; Battis (as of 2016a) § 1 BauGB, paragraph no. 86 d Federal Building Code: BauGB, § 9 e Since the provision is not compulsory, the general municipal land use plan is not invalid if an indication is missing. See: Jaeger (as of 01.08.2018) § 5 BauGB, paragraph no. 76 f Federal Building Code: BauGB, § 5 (3) No. 1; Mitschang (as of 2019) § 5 BauGB, paragraph no. 38 g Federal Building Code: BauGB, § 5 (4a) and § 9 (6a) a

b

3.7.2

Priority and Reserve Areas

3.7.2.1

Overview

Important categories in state-wide and regional land use plans to preserve future coastal adaptation options are priority and reserve areas (Vorrang- und Vorbehaltsgebiete). Both categories can, for instance, keep areas seawards and landwards of coastal defences free from use to facilitate their enhancement or secure areas for extracting clay and sand for coastal protection works.372 Priority areas are intended for particular functions or utilizations that are relevant for spatial planning

372

Ministerkonferenz für Raumordnung (2013), p. 19 f.

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and preclude inconsistent functions or utilizations.373 Priority areas play an important role for ‘precautionary land use’ (Flächenvorsorge)374 and precautionary coastal protection strategies. Apart from communicating future needs for flood and coastal protection to the municipalities, this category can be used to limit or remove this issue from their discretion about land use plans.375 Reserve areas, on the other hand, do not protect the intended particular functions or utilizations to the same extent but still require to have particular importance in the weighing process.376

3.7.2.2

Examples

While Bremen and Hamburg do not use priority or reserve areas in their general municipal land use plans which have the role of state-wide land use plans there,377 all other states do. In Lower Saxony, for instance, regional land use plans shall determine priority areas for clay extraction for coastal protection378 and define areas at extremely high risk from storm surges as reserve areas.379 In MecklenburgWestern Pomerania, a general obligation for regional land use plans to define priority and reserve areas for coastal and flood protection is imposed by State law.380 Areas at risk from coastal floods according to the general plan on coastal protection of Mecklenburg-Western Pomerania are defined as reserve areas.381 They are spatially congruent with the existing coastal protection areas.382 Along the coast of Western

Spatial Planning Act: ROG, § 7 (3) No. 1. Janssen et al. (2016), p. 261. 375 Bosecke (2005), p. 164. 376 Spatial Planning Act: ROG, § 7 (3) No. 2. 377 Spatial Planning Act: ROG, § 13 (1) cl. 2. 378 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 03 cl. 3 establishes this as an objective of spatial planning. 379 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 03 cl. 9-11. 380 Mecklenburg-Western Pomeranian State Planning Act: LPlG M-V, § 8 (2) cl. 1. 381 Regionales Raumentwicklungsprogramm Vorpommern, p. 69; Regionales Raumentwicklungsprogramm Westmecklenburg, p. 80; Ministerium für Landwirtschaft, Umwelt und Verbraucherschutz Mecklenburg-Vorpommern (2009), p. 32. 382 Regionales Raumentwicklungsprogramm Vorpommern, p. 68. During the time of the German Democratic Republic, coastal protection areas were designated at the Baltic Sea coast and transferred into the state law of Mecklenburg-Western Pomerania after Germany’s reunification. Part of these areas was a coastal protection strip of 200 m where the construction, modification or removal of structures were prohibited except for coastal protection works. Although exceptions by the responsible water authority were possible, further development was strictly limited. However, since § 89 of the Mecklenburg-Western Pomeranian State Water Act modifies the coastal protection strip by establishing an obligation to inform in those cases, the limitations are less strict nowadays. See: Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 136 (1); Paelchen (1987), p. 155 ff.; Bosecke (2005), p. 436 ff. 373 374

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Pomerania, priority areas are established in addition to the reserve areas, giving them greater weight.383

3.7.2.3

Summary

Through their binding effect on the spatial planning of public bodies,384 state-wide land use plans and the regional land use plans can serve as instruments for coastal adaptation. Notably to prevent increasing risk due to rising sea levels, priority and reserve areas at the coast can ensure that these concerns are taken into account.385

3.7.3

Rights of First Refusal

Another instrument of spatial and land use planning that can be used to facilitate the enhancement of protection works or to support a retreat strategy is a right of first refusal (Vorkaufsrecht). Rights of first refusal can be exercised when a person obliged by this right has entered into a purchase agreement with a third party. As a result, the purchase takes effect between the person entitled and the person obliged subject to the terms of the purchase agreement with the third party.386 The municipalities, for instance, have a right of first refusal concerning land that has to be kept free of building for the purpose of preventive flood protection.387 Real estates that are required for flood or coastal protection, are subject to a right of first refusal by the states.388 Although rights of first refusal tangent property rights, they are less severe means compared to expropriation.389 However, due to the implications of Art. 14 of the Basic Law, the right can only be exercised for a public purpose but the justification does not need to meet the high standard of the public interest requirement imposed on expropriations.390 To balance coastal protection interest with property rights, the right is explicitly limited to cases where the acquisition of

383

Regionales Raumentwicklungsprogramm Westmecklenburg, p. 80. Spatial Planning Act: ROG, § 4 (1) cl. 1. 385 Regionales Raumentwicklungsprogramm Vorpommern, p. 69. 386 German Civil Code: BGB, §§ 463 and 464. 387 Federal Building Code: BauGB, § 24 (1) cl. 1 No. 7. Such a right of first refusal is also established by Hamburg State Water Act: HWaG, § 55b cl. 1. 388 Federal Water Act: WHG, § 99a (1) cl. 1 and 2. This provision was introduced recently and took effect in January 2018. 389 Reinhardt (2017), p. 1588. 390 Tünnesen-Harmes (as of 05.01.2018) § 99a WHG, paragraph no. 6; Böhringer (2014), p. 40 on a similar provision in the State Water Act of Baden-Württemberg. 384

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real estate is necessary for reasons of flood or coastal protection and no less severe means are available.391 Since § 99a of the Federal Water Act intends to facilitate the acquisition of land at an early stage, the requirement should be interpreted generously.392 Hence, rights of first refusal can be a useful tool to acquire land adjacent to protection works.

3.7.4

Temporary Building Permits

Control over future land use can be reserved by granting limited permits. Under the Federal Building Code, building permits can be restricted temporarily.393 This instrument could be useful in areas that are expected to be exposed to floods in the future because of rising sea levels394 and thereby enhance the resilience of coastal communities.395 Expiring building permits can be part of a retreat strategy or require a new building permit after the expiration date that could then impose conditions like flood-resistant design—depending on how sea level rise developed and is expected to evolve further at the time of expiration. However, the scope of application is narrow since temporary building permits can only be granted in particular cases (“in besonderen Fällen”), meaning a restriction to exceptional circumstances.396 This is the case if the requirements of urban development are better achieved through a limited than an unlimited specification.397 If the temporary permit is made subject to a condition precedent or subsequent, the condition also needs to be relevant for urban development.398 Typical examples include: different land uses during events like (trade) fairs or exhibitions and necessary safety works like the removal of soil contamination before construction starts.399 Although rising sea levels and increasing flood risks could be qualified as relevant conditions for urban development, due to the fact that temporary building permits are restricted to exceptional cases, the application in the coastal context is doubtful. Sea levels will rise along the entire German coastlines and thus are not an exceptional circumstance. Exceptional circumstances in the coastal context seem

Federal Water Act: WHG, § 99a (3). See also: Tünnesen-Harmes (as of 05.01.2018) § 99a WHG, paragraph no. 6. 392 VG Augsburg, Urteil on 11.11.2019, BeckRS (2019) 34022 (Ausübrung des Vorkaufsrechts durch das Wasserwirtschaftsamt). 393 Federal Building Code: BauGB, § 9 (2) cl. 1 No. 1. 394 Bovet (2010), p. 95. 395 Bundesministerium für Verkehr, Bau und Stadtentwicklung (2013b), p. 50. 396 Mitschang and Reidt (as of 2016) § 9 BauGB, paragraph no. 166. 397 OVG NRW, Urteil on 21.07.2011, BeckRS 2011, 53676, II. 1. b). 398 Söfker (as of October 2019b) § 9 BauGB, paragraph no. 240l. 399 Söfker (as of October 2019b) § 9 BauGB, paragraph no. 241p. 391

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possible with regard to particularly exposed structures, e.g. a kiosk on the beach, but are unlikely to be applicable as a comprehensive strategy.

3.7.5

Floodplains

Special regulations apply to floodplains along tidally influenced rivers in Bremen, Hamburg, and Schleswig-Holstein.400 In these areas, existing floodplains have to be preserved in their functions as water retention areas and that former floodplains should be restored, e.g. by dike relocation.401 Designated floodplains are subject to several special regulations, for instance, the prohibitions to establish new building areas in non-urban areas without land use plans402 or to construct (or enhance) engineered structures.403 Exception by law applies to flood protection, other (limited) exceptions are placed at the discretion of the competent authority.404 Although the Federal Water Act imposes some restrictions on areas that are not floodplains but require a flood hazard map, the provision excludes tidally influenced areas. State law may provide otherwise405 but up to now, no deviating provisions have been enacted. Thus, the provision is not applicable in the coastal context.

3.8

Retreat Strategies: Existing Development

Although not yet seen as an option in Germany, the importance of retreat strategies is likely to increase in the future. In any case, excluding regulations that permit retreat would make this analysis incomplete. Therefore, the next part introduces existing instruments that could be used under a retreat strategy and examines if such a strategy would be permissible with regards to property rights and positive obligations arising from the German Basic Law.

400

See above Sect. 3.6.1.3. Federal Water Act: WHG, § 77; Berendes (as of 2018) § 77 WHG, paragraph no. 5. 402 Federal Water Act: WHG, § 78 (1) cl. 1. The courts interpret the term of new building areas (neue Baugebiete) narrowly, see Köck (2015), p. 518. 403 Federal Water Act: WHG, § 78 (4) cl. 1. 404 Federal Water Act: WHG, § 78 (1) cl. 2, (2), (4) cl. 2 and (5). 405 Federal Water Act: WHG, § 78b (1) cl. 1. 401

3.8 Retreat Strategies: Existing Development

3.8.1

Managed Retreat

3.8.1.1

General

105

Up to now, only Mecklenburg-Western Pomerania allows the retreat of the coastline through limiting coastal protection to settlement areas.406 The state’s general plan on coastal protection emphasizes that coastal changes are natural. Above all, these natural coastal changes are permitted in two of Mecklenburg-Western Pomerania’s national parks that together cover nearly 70 km of the coast. Exceptions are only made where human lives are at risk.407 Similarly, permitting coastal dynamics where no settlements require protection is an objective of spatial planning under the relevant regional land use plans.408 However, since settlements are still protected without any distinction, thus the retreat strategy is a limited, not a comprehensive one. Nevertheless, the importance of a retreat strategy in Germany is increasing. In 2019, the State government of Mecklenburg-Western Pomerania considered not to continue protecting a settlement mainly consisting of holiday homes against erosion409 but withdrew this idea soon afterwards.410 With rising sea levels, the question arises whether the state is able or should maintain the current, high level of coastal protection in the long-term. In particular, in high-risk areas, this might exceed economic considerations.411 This will also entail the decision if cities and other major settlements should be protected at the expense of smaller coastal communities.412 Hence, this is likely to cause conflict, including issues with regard to climate justice and equity.413 In some cases, retreat strategies may also provide necessary space for dikes and dunes since both require a stable ground located at a certain distance from the sea to fulfill their protective function.414 Relocation programs have already been applied in Germany to enable coal mining. If relocation is permissible for the economic interest of coal mining,415 the Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 83 (1) cl. 3. This reflects the HELCOM (1995) Recommendation 16/3. HELCOM (Baltic Marine Environment Protection Commission) is the governing body of the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area. 407 Generalplan Küsten-und Hochwasserschutz Mecklenburg-Vorpommern, p. 7. 408 Regionales Raumentwicklungsprogramm Westmecklenburg, p. 79 Regionales Raumentwicklungsprogramm Vorpommern, p. 68. 409 Ostsee-Zeitung (23 September 2019a) Siedlung bei Greifswald versinkt im Meer - weil sie keinen Küstenschutz bekommt. 410 Ostsee-Zeitung (17 October 2019b) Loissin: Hoffnung für von der Ostsee bedrohte Siedlung. 411 Janssen et al. (2016), p. 59; Bovet (2010), p. 86. 412 Janssen et al. (2016), p. 92. 413 See below: Sect. 5.5.11. 414 Bosecke (2005), p. 457. 415 See for instance: BVerfG, Urteil on 17.12.2013, BVerfGE 134, 242 (Braunkohletagebau “Garzweiler II”). 406

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same action cannot—a priori—be forbidden in order to protect people and assets from damage.

3.8.1.2

Implementation

Implementation instruments for settlement relocations can be the purchase of properties on the basis of a civil law contract or through exercising a right of first refusal.416 Another tool to implement a retreat strategy for settlements could be the order to remove a building if it is not in accordance with the relevant specific municipal land use plan. As an additional requirement, the building must be unable to be adapted in order to comply with the plan.417 This is the case where the purpose of the specific municipal land use plan can only be achieved if the existing development is removed, for instance, if the plan was modified to create retention areas.418 The same rationale applies to areas that are kept free from development to reduce coastal hazard risks. In case of residential buildings, the order to remove is only permitted if alternative accommodation exists.419 Together with the regulatory powers over spatial and land use planning that can prevent further development, the mentioned instruments provide a legal basis for relocation to adapt to climate change impacts at the coast.420 However, these instruments mainly relate to the municipalities and therefore do not enable a comprehensive strategy. As a result, the scope of application is limited. Apart from factual issues like public opposition, a managed retreat approach also faces legal obstacles, notably with regard to property rights and the state’s positive obligation to protect its citizens and their property, which is addressed in the next section.

3.8.1.3

Conflicting Property Rights

The importance of basic rights in the German legal system was already mentioned and the constitutional protection of property examined.421 Managed retreat often conflicts with property rights, in particular, so-called grandfathered rights and constitutional limits to expropriation. Both aspects are explored subsequently.

Janssen et al. (2016), p. 75 f. regarding flood protection at rivers but transferrable to the coastal context. 417 Federal Building Code: BauGB, § 179 (1). 418 ARGEBAU (2008), p. 32. 419 Federal Building Code: BauGB, § 179 (2) cl. 1. 420 Janssen et al. (2016), p. 278. 421 See above: Sect. 3.5. 416

3.8 Retreat Strategies: Existing Development

3.8.1.3.1

107

Grandfathered Rights

Part of the protection of property is the lawful use of a building or land even if the law changes in the future and prohibits the use (baurechtlicher Bestandsschutz).422 Thus, they basically entail ‘grandfathered rights’. These grandfathered rights are limited to the existing use and end when the building is either removed or destroyed or if the use changes.423 Chiefly, if grandfathered rights exist, the higher standard of expropriation must be met by retreat action, not the lesser standard for land use regulation. In other words: the requirements of Art. 14 need to be satisfied to make any retreat action constitutional and thus feasible in these cases. Protection against climate change impacts are a legitimate cause in general and may—depending on the level of risk—justify inference of the protection of property.424 For this reason, legal regulations often make exceptions in order to guarantee grandfathered rights. Exempting buildings that are constructed or substantially modified based on a specific municipal land use plan in force at the day that the provision enters into force, from the ban to built in areas close or in front of dikes or in floodplains is an example of this.425 However, the need to comply with Art. 14 of the Basic Law does make grandfathered rights an obstacle for a retreat policy. This illustrates the usefulness of temporal or revocable building permits that prevent the emergence of grandfathered rights and therefore enable future retreat strategies.

3.8.1.3.2

Expropriation

Any expropriation to implement a retreat strategy needs to comply with the general requirements addressed above.426 According to the Federal Constitutional Court, an expropriation weighs even more severe if it concerns permanently occupied residential property. This entails correspondingly strict requirements to satisfy the principle of proportionality.427 While protection of lives and flood protection are legitimate goals for the state to pursue and implement a retreat strategy by expropriation would be a suitable means to reduce coastal hazard risk. Expropriation may not be necessary if other less severe measures like flood-resistant design are available.428 However, less severe measures need to be equivalently effective, which can exclude less severe means that would entail an unacceptably higher financial burden

422

Beckmann (2014), p. 402. Papier and Shirvani (as of August 2018) Art. 14, paragraph no. 190. 424 See for this also: Janssen et al. (2016), p. 266. 425 Schleswig-Holstein State Water Act: WasG SH, § 82 (2) No. 4. 426 See above: Sect. 3.5.2. 427 BVerfG, Urteil on 17.12.2013, BVerfGE 134, 242 (Braunkohletagebau “Garzweiler II”), paragraph no. 168. See above for proportionality in general: p. 82. 428 See for instance: Janssen et al. (2016), p. 281; Greiving et al. (2018), p. 199. 423

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on the state.429 Arguably, expropriation could remain necessary where it is more effective. For instance, with regard to residual risk under a protective or accommodation approach or where the costs for other measures are significantly higher. Any expropriation needs to be proportional to pursued goal, reflecting the level of risk as well as whether human lives or just property is at risk.

3.8.1.4

Positive Obligations

Positive obligations are the counterpart of the strong protection of basic rights against infringement by the state. Since the Basic Law imposes positive obligations to protect its citizens and their property, pursuing a retreat strategy raises the issue of whether this is consistent with the aforementioned obligation. Although, fundamental rights have traditionally been negative rights protecting against infringement of these rights by the state,430 the existence of positive obligations431 of the state is nowadays undisputed in the German legal literature.432 The concept of positive obligations is closely linked to the protection against the actions of third parties. A positive obligation of the state to protect the fundamental right of one citizen can justify the infringement of fundamental rights of another.433 Such a justification is needed because the German state is legally bound by the basic rights.434 Hence, infringements can only be justified by limitations established by the provisions of the Basic Law itself or because of other constitutionally protected rights in conflict.435 For instance, the positive obligation to protect citizens from coastal floods may justify expropriation to construct adequate defences.

3.8.1.4.1

Positive Obligations with Regards to Natural Hazards

Whether positive obligations also exist with regard to natural hazards is subject to discussion.436 There are five good reasons in favour of including protection against natural hazards. First of all, positive obligations focus on the basic right and its 429

Grzeszick (as of August 2018) Art. 20 GG, paragraph no. 114. See for example BVerfG, Urteil on 15.01.1958, VerwRspr (1958) 419 (Lüth), p. 421.; Isensee and Kirchhof (eds) (1992), p. 150 paragraph no. 11 and p. 155, paragraph no. 21. 431 The German terminology ‘staatliche Schutzpflicht’ or ‘grundrechtliche Schutzpflichten’ is better translated with being the ‘state’s duty to protect’. However, the thesis uses the terminology “positive obligation” of the European Court of Human Rights, see e.g. European Court of Human Rights on 13.06.1979 (Case of Marckx v. Belgium). 432 Stern (2010), p. 247. 433 Krings (2003), p. 140 f who even declares the legitimization of infringements as the dominating effect of the positive obligations. 434 German Basic Law: GG, Art. 1 (3). 435 Badura (2018), p. 140 f. paragraph no. 25. 436 See for example: Szczekalla (2002), p. 98; Krings (2003), p. 214 ff. 430

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integrity, making any differentiation concerning the source threatening this right obsolete.437 Second, in the area of administrative law which is dealing with averting dangers (Gefahrenabwehr), it is generally recognized that natural hazards can demand action by the police.438 Third, the individual citizen is not less dependent on the protection of the state in these cases.439 Fourth, the extensive character of Art. 1 (3) of the Basic Law and the goal to grant effective protection of basic rights support including natural hazards.440 Fifth, under the European Convention for the Protection of Human Rights and Fundamental Freedoms, positive obligations include protection against natural hazards.441 Hence, the state does have a positive obligation to protect its citizens against natural hazards, including against coastal flooding and coastal erosion.

3.8.1.4.2

Limitations

Positive obligations are, however, limited in several ways: First of all, they can only demand action which is actually442 and legally possible. Budgetary restrictions are probably one of the most important actual limitations. If, for example, a dike is constructed this may lead not to choose the safest model, but a more affordable one.443 Second, the state does not need to guarantee absolute protection. In particular, there is no obligation to prevent every uncertainty which may lie beyond practical reasoning and be due to limited human knowledge. Nevertheless, risk evaluations have to be adjusted with the development of the state of knowledge to assure the best hazard prevention.444 Applying this rationale to coastal adaptation, therefore, means that the state is not obliged to take precautions to unlikely sea level rise scenarios since these are arguably impractical to provide for. Third and most important, the state has a margin of discretion to decide how to comply with its obligation.445 The state only must achieve a certain degree of effective protection as a result446 but has a margin of discretion concerning the means. Discretion is 437

Dietlein (2005), p. 103. Agreeing: Lorenz (2007), p. 331; Gellermann (2000), p. 243. Robbers (1987), p. 124. 439 Sachs and Stern (1988), § 67 V 2, p. 733 ff. Giving the example that it does not make a difference for need of protection whether a fire is caused by a thunderbolt or by arson. 440 Unruh (1996), p. 23. Similarily, Holznagel (1997), p. 396. 441 Concerning mudslides: European Court of Human Rights on 20.03.2008 (Case of Budayeva v. Russia). Concerning a severe earthquake: European Court of Human Rights on 17.11.2015 (Case of M. Özel and Others v. Turkey). Concerning a fluvial flood: European Court of Human Rights on 15.05.2012 (Hadzhiyska v. Bulgaria). 442 See for example: Hermes (1987), p. 244. For coastal protection: Bosecke (2005), p. 454. 443 Unruh (1996), p. 88; Fischer (2013), p. 67. 444 BVerfG, Beschluss on 08.08.1978, BVerfGE 49, 89 (Kalkar I, Schneller Brüter), paragraph no. 113 and 120. 445 BVerfG, Urteil on 25.02.1975, BVerfGE 39, 1 (Schwangerschaftsabbruch I), paragraph no. 157. 446 Wahl and Masing (1990), p. 558. 438

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necessary since there are usually many ways to comply with a positive obligation. As there are many ways to save a drowning man,447 there are many options available to guarantee protection against coastal hazards.448 As a consequence of this discretion, there can be no claim to a specific coastal protection work or coastal adaptation strategy. In the context of coastal adaptation, the state, therefore, can fulfill its positive obligation through protection actions like enhancing dikes449 or by opting for a retreat strategy. Positive obligations to protect life and property of citizens can justify the infringement of property rights, e.g. if expropriation is the only feasible way to guarantee the protection of lives. With regard to the uncertainty of climate change and its impacts, the German jurisprudence sets procedural requirements to ensure that state actors use available information as well as risk assessments with expert evaluation. Hence, the legislator generally complies with positive obligations if its decision is based on thoroughly analysed facts and the conclusions drawn are plausible.450

3.8.1.5

Redevelopment of Settlements

Binding decisions about land use are established by land use plans as explained above.451 Accordingly, land use regulation plays an important role for coastal adaptation. In particular, the instruments of restructuring or redevelopment of settlements (Städtebauliche Sanierungsmaßnahmen und Stadtumbaumaßnahmen) can be a tool for adaptation to climate change. Presently, both instruments only play a minor role in this field.452 Originally, the instrument of restructuring aimed at improving the poor state of settlements concerning, for instance, insufficient fire protection or sewage systems. Since 2013, this extends to climate protection and adaptation to climate change.453 Similarly, the redevelopment of settlements’ intention was to respond to demographic and economic structural changes but since 2011, the instrument also seeks to enable climate-friendly urban development.454 Hence, both can be used to make cities, towns, and villages resilient. Climate change adaptation is one of the fields of application for restructuring or redeveloping measures as regards urban development.455 Both tools are overall measures that can be used where not just single parcels of land but entire areas need to be restructured

447

Alexy (1994), p. 421; Alexy (2004), p. 308. See above: Sects. 2.4 and 2.5. 449 Winkler (2005), p. 90. 450 Gärditz (as of April 2018) Art. 20a GG, paragraph no. 93. 451 See above: p. 3.7.1. 452 Similarly: Albrecht (2020), p. 15 ff. 453 Krautzberger (as of May 2019) § 136 BauGB, paragraph no. 13 and 97. 454 Krautzberger and Richter (as of May 2019) Vorbemerkung zu den §§ 171a bis 171d BauGB, paragraph no. 1 f. 455 Federal Building Code: BauGB, § 136 (2) and § 171a (3) No. 1. 448

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or redeveloped in a consistent and coordinated manner.456 Restructuring measures can include modification and removal of structures. Population decrease can also be a reason to implement dismantling as a restructuring measure.457 The municipality can assign areas beyond the restructuring plan to provide substitutional housing and commercial buildings if necessary.458 This can enable resettlement within a municipality459 and hence be a tool for municipalities to redevelop flood-prone areas with a settlement. In these cases, the municipalities have a right of first refusal in the areas that are part of the restructuring or redevelopment plan.460

3.8.1.6

Summary

As apparent from the analysis, the current legal framework does allow managed retreat. However, it seems unlikely that these provisions are apt for a strategic not only small-scale retreat. Notably in the light of strongly protected property rights, the provisions might lack the assertiveness to overcome opposition from stakeholders. Furthermore, it is questionable whether they would hold up in judicial review. Legislative changes are likely to be necessary if retreat shall be a viable option for coastal adaptation.

3.8.2

Coastal Setbacks

3.8.2.1

Existing Setbacks

Development setbacks from the coast can be part of a retreat strategy and an effective tool to reduce coastal hazard risk. The already analyzed regulations about safeguarding space for future enhancements of dikes or other flood protection works also function as setback lines. In particular where they require a minimum distance of 150 m from steep cliffs or dunes.461 Since Lower Saxony is protected by a continuous dike line, the setback distance from the dikes also works as a type of setback from the coastline. Where the setbacks refer to natural features like cliffs or dunes, they are dynamic and change with modification to their parameter while references to coastal defences are usually more static. Mecklenburg-Western Pomeranian law allows structures close to the coastline, but the water authority must

Schmitz (as of 01.11.2018) § 136, paragraph no. 4 ff; Reidt (as of 2016) § 171a BauGB, paragraph no. 1 f. 457 Schmitz (as of 01.11.2018) § 136, paragraph no. 15.1 and 60. 458 Federal Building Code: BauGB, § 142 (2) No. 1. 459 Seifert (as of 2018) § 142, p. 825, paragraph no. 5. 460 Federal Building Code: BauGB, § 24 No. 3 and 4. 461 Schleswig-Holstein State Water Act: WasG SH, § 82 (1) No.3. 456

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forbid any venture within 200 m from the average waterline if it is incompatible with coastal protection interests. In case of ventures at steep cliffs, the water authority is under the obligation to prohibit them if they are likely to be at risk from coastal erosion in the long-term.462 Therefore, this can also be considered a setback line as well. Usually, waivers from the prohibitions to build can be granted. In Lower Saxony and Bremen, the exemptions are already revocable by law.463 This seems reasonable in the light of rising sea levels, another possibility could be to grant temporary exemptions.

3.8.2.2

Setbacks as Multipurpose Instruments

Setback lines can also serve purposes beyond coastal adaptation. In order to protect habitats and for recreational purposes, the Federal Nature Conservation Act establishes a prohibition to build within 150 m from the mean high waterline (North Sea) or the average water line (Baltic Sea). The prohibition is limited to areas that are not subject to a specific municipal land use plan and outside built-up areas and contains exemptions for existing buildings and coastal defences.464 Keeping areas close to coastal defences free from uses (unless related to coastal protection) does not only secure future enhancement of the defences but can also enable future (partial) retreat.465 Hence, setbacks can be considered a low- or even non-regret strategy that enables flexible change of strategies in the future. However, unlike the setback lines used, for instance in New Zealand,466 the ‘setbacks’ mainly aim at safeguarding space for future works but do not refer to the riskiness of an area for development. The German ‘setback lines’ therefore do not communicate risk levels and do not intend to raising awareness among decision-makers and stakeholders about coastal hazards.

3.9

Intersecting Legal Regimes

Coastal adaptation intersects with many different other areas of law. Two intersecting legal regimes are explored subsequently: nature conservation law and the protection of historic monuments. Both examples show how other issues can influence coastal adaptation choices. Coastal defences, for instance, can have detrimental effects on habitats, while preserving saltmarshes like the Wadden Sea can be

Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 89. See above: Sect. 3.4.4. 464 Federal Nature Conservation Act: BNatSchG, § 61 (1) and (2) No. 3; Heß (as of 01.10.2018) § 61 BNatSchG, paragraph no. 2. 465 Spiekermann and Franck (2014), p. 72 f. 466 See below: Sect. 4.6.1. 462 463

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beneficial for coastal protection as well as nature conservation. Moreover, the Wadden Sea and other coastal habitats will be affected by rising sea levels.467 Therefore, the next part explores potential conflicts as well as synergies for coastal adaptation and nature conservation. Protected areas and the impact regulation are examined as important instruments of nature conservation law, before looking at nature conservation as a parameter for coastal adaptation, including an investigation whether obligations to protect nature from adverse effects of sea level rise. Finally, the section examines a different intersection related to the significance of historic monuments in the context of coastal adaptation.

3.9.1

Nature Conservation

The coast is a valuable habitat for flora and fauna, thus coastal adaptation needs to take nature conservation interest into account. Coastal adaptation intersects with nature conservation in different ways: some adaptation actions detriment habitats, others preserve them. The preservation of dunes and the foreshore were already mentioned as examples for coastal adaptation actions that also safeguard habitats.468 While hard defences may lead to coastal squeeze and decrease the habitat, a retreat strategy may allow habitats like dunes to migrate landwards or even create new habitats. The Wadden Sea in particular has already been mentioned as an internationally important habitat.469 Consequently, nature conservation plays an important role in coastal adaptation in many ways. Example: As a compensatory measure for construction activities for a port, parts of the river Weser were restored and a polder created. The project turned former agriculture land into a tidally influenced habitat for flora and fauna. In case of storm surge, high flooding or even in case of extreme storm water, the polder can accommodate water.470 Nature conservation law consists of various statutes, agreements, and regulations on different levels, including: • International law: e.g. Ramsar convention on wetlands, Bern Convention on the Conservation of European Wildlife and Natural Habitats • European Union law: Birds Directive, Habitats Directive

467

WWF Deutschland (2019), p. 3. See above: Sects. 3.4.6 and 3.4.7. 469 See above: Sect. 2.2.5.1. 470 Umweltbundesamt (2013), p. 54 f. 468

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• German law: Federal Nature Conservation Act, State Nature Conservation Acts471

3.9.1.1

Protected Areas

Due to the array of legislation, it is not surprising that different categories of protected areas exist. Some areas are protected under more than one statute, however, the boundaries are not necessarily congruent. Internationally protected Ramsar Sites in Germany, for instance, are found in the Wadden Sea and the Baltic Sea around the west coast of the island Rügen.472 The national parks in the Wadden Sea and the area around the island Rügen are also Natura 2000 sites,473 i.e. protected areas under the Birds or Habitats directive.474 Under domestic law, the Federal Nature Conservation Act establishes different types of protected areas, the most important in this context being nature reserves, national parks, and protected landscapes.475 Among the different categories of protected areas, nature reserves provide the strictest protection but protected landscapes and national parks are more extensive in area. In Mecklenburg-Western Pomerania, almost the entire coastline is classified as a protected landscape.476 All protected areas have the potential to limit the anthropogenic influence on the coast and allow coastal dynamics as natural processes.477 Protected areas can avoid further development and discourage coastal defences by making them subject to an exemption in the statute of the protected area or a waiver. The latter may be restricted to public interests, like the need for coastal protection, to protect lives. In all cases, the actual level of protected highly depends on the statute for the protected area.478 Furthermore, some coastal features like e.g. rocky and steep coasts, coastal dunes, salt marshes, and tidal flats are protected by law against destruction or a significant

471

Nature conservation is a matter under the concurrent legislative power, therefore the states may enact their own deviating laws even though the federal power to legislate was exercised, German Basic Law: GG, Art. 72 (3) No. 2. 472 Ramsar Secretariat ‘Ramsar Sites Information Service’. 473 European Environment Agency (2016) Natura 2000 Network Viewer. 474 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, Art. 3 (1); European Commission (2020) Natura 2000. 475 Federal Nature Conservation Act: BNatSchG, § 23, 24 and 26. 476 Bosecke (2005), pp. 312, 319 ff. and 325. 477 See for instance National Park Act: NPG, § 2 (1) cl. 2 “Es ist ein möglichst ungestörter Ablauf der Naturvorgänge zu gewährleisten.” 478 Federal Nature Conservation Act: BNatSchG, § 67 (1); Bosecke (2005), pp. 312 f. 321 f. and 326 f. See for an example of allowing coastal protection: National Park Act: NPG, § 2 (2) “Die Maßnahmen des Küstenschutzes [. . .] werden nicht eingeschränkt [. . .]”.

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impairment and exemptions require compensating the impairments.479 Exceptions by law can apply to the necessary maintenance of protection works.480 Where protected areas are also defined as priority areas481 for nature conservation, like the Wadden Sea National Park Schleswig-Holstein,482 inconsistent land use is precluded under spatial planning law. Hence, this is a way to limit the use of coastal areas.

3.9.1.2

Impact Regulation

Nature conservation law is relevant beyond protected areas since the impact regulation established by §§ 13 ff. of the Federal Nature Conservation Act has general application. Hence, avoiding all considerable impairments of nature and landscape is paramount and unavoidable impairments require compensation. For the coast as a habitat, this is an important safeguard. Considerable impairments can be caused, for example, by the construction or broadening of a dike or other coastal protection structures483 or the flooding of a retention area.484 Anticipatory measures for nature and landscape conservation can be approved as compensation for expected impairments in the future. The law exempts anticipatory measures for impairments by coastal and flood protection measures from the prohibition to fund compensation measures through public money.485 Projects that might significantly disturb protected areas under the Birds or Habitats directive require an assessment of the implications for the site.486 Projects that would have a significant effect on the protected area are inadmissible unless they cumulatively fulfill the following conditions: (1) they are necessary out of an imperative reason of overriding public interest487 and (2) no alternative solution (in another location or less detrimental) exits.488

Federal Nature Conservation Act: BNatSchG, § 30 (2) No. 6. Schleswig-Holstein State Nature Conservation Act: LNatSchG SH, § 21 (2). 481 See above: Sect. 3.7.2. 482 Landesentwicklungsplan Schleswig-Holstein 2010, p. 112. 483 Schleswig-Holstein State Nature Conservation Act: LNatschG SH, § 8 (1) No. 4 e.g. explicitly establishes that impacts in terms of Federal Nature Conservation Act: BNatSchG, § 14 (1) can especially be the construction or substantial modification of coastal or shore protection structures. 484 Sparwasser and Wöckel (2007), p. 764. 485 Federal Nature Conservation Act: BNatSchG, § 16 (1). 486 Federal Nature Conservation Act: BNatSchG, § 34 (1) cl. 1. 487 This could be the case if whole settlements are threatened, see OVG Schleswig-Holstein, Urteil on 19.06.1997, NuR (1998) 558 ff., paragraph no. 41. Furthermore, for coastal protection and protection especially against storm surges as compelling reasons of outweighing public interest; VG Oldenburg, Beschluss on 26.10.1999, NuR (2000) 398. 488 Federal Nature Conservation Act: BNatSchG, § 34 (2) and (3). 479 480

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Consequently, the exceptions are narrow, mainly restricting coastal adaptation in Natura 2000 sites to actions compatible with the protected site. In these cases, nature conservation law has a major impact on selecting suitable coastal adaptation strategies, particularly with regard to the assessment of alternative solutions.

3.9.1.3

Nature Conservation as a Parameter for Coastal Adaptation

The impact of nature conservation on coastal adaptation measures is not restricted to protected areas. Nature conservation can play a role as a parameter for coastal adaptation. Although the Federal Nature Conservation Act demands that flood protection has to be natural or near-natural,489 this does not take priority over technical measures.490 However, nature conservation interests are taken into account by the Framework for the Joint Task of the Improvement of the Agrarian Structure and Coastal Preservation, an important federal funding instrument.491 Under this framework, coastal protection has to observe the objectives and requirements of environmental protection and nature conservation.492 For example, measures that would significantly impair coastal features protected by law493 are excluded from funding.494 In some cases, the associations for dike maintenance promote ecological flood protection. The two dike associations in Bremen, for instance, are obliged to protect and promote the interests of nature conservation and environmental protection when carrying out their tasks.495 Other statutes at least promote the cooperation of agriculture, water management, soil protection, and nature conservation496 but many other statutes only focus on flood protection without any reference to nature conservation or environmental protection.497 Therefore, it also depends on the Federal Nature Conservation Act: BNatSchG, § 1 (3) No. 3. Brinktrine (as of 01.07.2018) § 1 BNatSchG, paragraph no. 80. 491 See above: Sect. 3.3. 492 Joint Task of the Improvement of the Agrarian Structure and of Coastal Preservation: GAKG, § 2 (1) cl. 2. 493 See above: Sect. 3.9.1.2. 494 Bundesministerium für Ernährung und Landwirtschaft (2017), p. 7. 495 Statute of the Bremen association for dike maintenance on the true right of the river Weser (Satzung des Bremischer Deichverband am rechten Weserufer), § 2 (2); Statute of the Bremen association for like maintenace on the true left of the river Weser (Satzung des Bremischer Deichverband am linken Weserufer), § 2 (2). “Bei der Erfüllung seiner Aufgaben hat der Verband die Belange des Natur- und Umweltschutzes zu wahren und zu fördern.” 496 E.g. Statute of the Hambergen association for dike maintenance (Satzung des Wasser- und Bodenverbandes Hambergen), § 2 No. 11; Statute of the Teufelsmoor association for dike maintenance (Satzung des Gewässer- und Landschaftspflegeverbandes Teufelsmoor), § 2 No. 12; Statute of the Ostereistedt-Rockstedt association for dike maintenance (Satzung des Wasser- und Bodenverbandes Ostereistedt-Rockstedt), § 2 No. 12. 497 E.g. Statutes of the associations for dike maintenance: Statute of the Cuxhaven association for dike maintenance (Satzung des Cuxhavener Deichverbandes); Statute of the III. Oldenburg 489 490

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association of dike maintenance to which degree coastal flood protection interacts and takes into account nature conservation within their jurisdiction.

3.9.1.4

Environmental Impact Assessment

Under the Environmental Impact Assessment Act, environmental audits include the investigation, description, and evaluation of significant effects of a project or plan on, among others, human health, water, and climate.498 As noted above, most project approval procedures and sand nourishments require an environmental impact assessment.499 If an environmental impact assessment is required, the project developer must submit a report about the expected impacts of the project on the environment and that takes into account the current state of knowledge and testing methods.500 Furthermore, a strategic environmental audit is required for spatial and land use plans as well as for flood risk management plans.501 Hence, for most adaptation action the contemplation of environmental impacts is required.

3.9.1.5

Obligations to Protect Nature

Habitats in coastal areas such as the Wadden Sea or coastal dunes will be affected by rising sea levels as well as corresponding human responses. Coastal habitats may face submergement or destruction by protection works, inter alia coastal squeeze.502 Since different legal provisions state an obligation of the state to protect nature, this obligation may include protection against the aforementioned impacts related to climate change and adaptation to it.

3.9.1.5.1

Obligation to Protect the Natural Foundations of Life Under the Basic Law

The Basic Law, for instance, establishes the obligation of the state to protect the natural foundations of life, partly because of its responsibility toward future

association of dike maintenance (Satzung des III. Oldenburgischen Deichbandes); Statute of the Krummhörn association for dike maintenance (Satzung der Deichacht Krummhörn); Statute of the Norden association for dike maintenance (Satzung der Deichacht Norden). 498 Environmental Impact Assessment Act: UVPG, § 3 in conjunction with § 2 (1). 499 Kämper (as of 01.10.2018b) § 72 VwVfG, paragraph no. 53. See above: Sects. 3.4.2.2 and 3.4.8.1. 500 Environmental Impact Assessment Act: UVPG, § 16 (1) and (5) cl. 1. 501 Environmental Impact Assessment Act: UVPG, Annex 5 No. 1.3, 1.5 and 1.8. 502 See above: Sect. 2.2.3.

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generations.503 The term ‘natural foundations of life’ is interpreted broadly and includes, inter alia, the protection of air, water, and soil as well as biodiversity. The provision aims to protect ecosystems, not individual organisms.504 As a ‘state objective’ (Staatsziel) the openly formulated regulation is subject to substantiation by the legislator and does not entail subjective rights that could be enforced in court.505 Thus, the provisions do not require the specific protection of an individual habitat. However, the provisions have further importance as a guideline for all state actors and may impact the choice of adaptation options. In addition, they may justify the infringement of basic rights when pursuing adaptation to climate change e.g. for expropriating real estate located in a floodplain.506

3.9.1.5.2

Obligations Under the Federal Nature Conservation Act

The Federal Nature Conservation Act stipulates the general obligation to protect nature and landscape,507 including protection from natural processes like floods or storms.508 Although the provision is more precise than the aforementioned stipulation in the German Basic Law, it is still too abstract to entail precise obligations or enforceable rights. However, the obligation can be used to support the interpretation of other provisions and can play a role in weighing processes.509 As a result, the obligation can influence decisions on coastal adaptation. However, apart from the general obligation, the Federal Nature Conservation Act also contains more precise and explicit obligations, such as the preservation of natural landscapes,510 of which the Wadden Sea and the Baltic Sea coast are examples.511 This obligation likely impacts coastal adaptation to a greater extent than the obligation under the Basic Law due to the fact that it is more precise. In the light of the explicit duty to protect natural landscapes coastal adaptation strategies that preserve, for instance, the Wadden Sea are favorable over more detrimental strategies from an environmental point of view. As apparent from the analysis above, especially with regards to positive obligations to protect life and property, it is evident that the choice of an adaptation strategy or a particular adaptation action is not determined by nature conservation alone.

503

German Basic Law: GG, Art. 20a. Huster and Rux (as of 15.08.2018b) Art. 20a, paragraph no. 12. 505 Scholz (as of August 2018) Art. 20a, paragraph no. 32 f and 35. 506 Reese (2010a), p. 28 f. 507 Federal Nature Conservation Act: BNatSchG, § 1 (1). 508 Brinktrine (as of 01.07.2018) § 1 BNatSchG, paragraph no. 39. 509 Schumacher and Schumacher (as of 2011) § 1 BNatSchG, p. 86 paragraph no.2; Brinktrine (as of 01.07.2018) § 1 BNatSchG, paragraph no. 5–7. 510 Federal Nature Conservation Act: BNatSchG, § 1 (4) No. 1. 511 Mengel (as of 2016) § 1, paragraph no 79, p. 54. 504

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3.9.2

119

Protection of Historic Monuments

Another area of law that may have an impact on coastal adaptation in some places is the protection of historic monuments. This can relate to protecting these monuments or in some cases protection works themselves are historic monuments. Implications concerning historic monuments derive, among other, from public international law since the Wadden Sea is a World Heritage site as well as the historic town hall in Bremen, the city of Lübeck and the historic town centers of Stralsund and Wismar.512 Under the UNESCO World Heritage Convention, states have the explicit duty to ensure “the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage.” To achieve this goal a state needs to “do all it can” and has to use “the utmost of its own resources.”513 This explicitly includes inter alia necessary legal regulations as well as technical and financial measures.514 Hence, due to this duty under public international law, the state is likely to be obliged to make a stronger effort to protect World Heritage sites than other at-risk locations. In case of the Wadden Sea as a Natural World Heritage site, this could, for instance, mean that permanent submerge and coastal squeeze have to be adverted, for instance through additional sediment supply or the relocation of the dikeline further landward. On the other hand, due to the long tradition of dike building, some dikes and dwelling mounds are centuries old and can be classified as a cultural monument.515 Another example is the sandstone wall “Schlachte” along the river Weser in the city center of Bremen, serving as an esplanade as well as flood protection work. Its origins can be traced back to the sixteenth century.516 Where protection works are also historic monuments, authorization by the authority responsible for the protection of historic monuments can be necessary for any modification.517 Due to the flood protection being a historic monument this can narrow the scope of viable coastal adaptation strategies and e.g. be an argument against implementing a retreat strategy.

UNESCO World Heritage Centre ‘Germany’. Convention concerning the Protection of the World Cultural and Natural Heritage, Art. 4. 514 Convention concerning the Protection of the World Cultural and Natural Heritage, Art. 5 (d). 515 Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 16. 516 Landesamt für Denkmalpflege Bremen ‘Schlachtemauer’. 517 Schleswig-Holstein State Act on the Protection of Historic Monuments: DSchG SH, § 10 (1) Bremen Protection of Historic Monuments Act: DSchG HB, § 10 (1). 512 513

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State Liability

Coastal adaptation to rising sea levels is also affected by regulations on state liability since those can constitute an obstacle or limitation for state action. Liability of the state could arise due to insufficient adaptation, for instance, with regard to allowing development in hazard prone areas or in case coastal defences fail. Thus, the next section briefly addressed the relevant state liability claims.

3.10.1 General State liability is one of the scarce areas in German law that is characterized by case law and little codification.518 The following sections examine the most important compensation claims in the context of this thesis. All of the analyzed compensation claims against the state have in common that they require the state’s responsibility for the damage caused through action or omission in the particular case.519 Furthermore, liability for ‘legislative injustice’ is excluded. Contributory negligence is also considered for all claims.520 This includes as a specific form of contributory negligence, that any claimant must first seek judicial remedies to stop the infringement before claiming compensation.521 Hence, this limits the scope of state liability claims.

3.10.2 Liability for Breach of Official Duty (Amtshaftungsanspruch) 3.10.2.1

General Requirements

Despite the role of case law, the most relevant claim, however, is codified by § 839 of the German Civil Code in conjunction with Art. 34 of the Basic Law. According to these provisions, a liability claim against the state requires the intentional or negligent breach of an official duty owed to a third party by a person in the exercise of a public office entrusted to him or her.522

518

Ossenbühl and Cornils (2013), p. 5. Reinhardt (2004), p. 420. 520 Papier and Shirvani (as of 2017) § 839 BGB, paragraph no. 329; BGH, Urteil on 06.06.1966, NJW (1966) 1859 (Aufopferungsanspruch bei Ansteckung mit Pockenschutzimpfstoff), p. 1861 f. 521 Explicitly for the liability for breach of official duty claim: German Civil Code: BGB, § 839 (3). See also: Ossenbühl and Cornils (2013), p. 106; BGH, Urteil on 12.03.1987, BGHZ 100, 136 (Haftung der öffentlichen Hand für verfassungswidriges formelles Gesetz), paragraph no. 36 ff. 522 See for details: Maurer and Waldhoff (2017), p. 712 ff. § 26, paragraph no. 11 ff. 519

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The criterion of a breach of an official duty to a third party (drittgerichtete Amtspflicht) limits the liability of the state.523 Official duties can be every duty of the acting person to the state, e.g. all duties imposed by law or internal regulations of administration. More importantly, the duty has to be owed to the claimant as a third party and also intend his protection from the occurred damage.524 This excludes duties owed to the public, like the duties to maintain dikes and other coastal protection defences525 or coastal protection itself.526 Therefore, damages in case of an intentional or negligent breach of these duties can only be claimed under tort law. However, these claims are limited to enumerated legally protected rights like life, body or property but does not cover purely financial losses.527 However, this can be different in case an association for dike maintenance is in charge of flood protection: Example:528 The claimant alleged that flood damage to her rented property was due to an insufficient design of a retention reservoir by the local water association. The Federal Supreme Court ruled that the appointed task of flood protection to this public body is not just an obligation to the general public but also constitutes an official duty in relation to a third party, including to non-members of the public body like tenants. However, the association is only at fault if it acted outside its margin of discretion and e.g. failed to take measures that were evidently necessary. Due to the margin of discretion, the liability has a narrow scope of application. This applies as well to positive obligations arising from basic rights, which are another example of official duties529 but usually entail a wide margin of discretion. With regard to building permits, the competent authorities can be held liable for loss resulting from granting an unlawful building permit. This is limited to the scope of the authority granting building permits, usually, it examines compliance with land use regulation and construction regulation.530 Insofar as these regulations are Maurer and Waldhoff (2017), p. 719, § 26, paragraph no. 19. Detterbeck (2018), p. 407 f. 525 See for the similar obligation to maintain waterways which also is addressed to the public, not the individual: Schwendner (as of February 2017) § 39 WHG, § 39 WHG, paragraph no. 15. 526 Bremen State Water Act: BremWG, § 60 (2) cl. 2; Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 83 (1) cl. 2; Schleswig-Holstein State Water Act: WasG SH, § 60 (6) cl. 3. 527 German Civil Code: BGB, § 823 (1) BGH, Urteil on 13.02.1964, VerwRspr (1964) 896. See for criticism about using a civil law claim and instead arguing for the applicability of a state liability claim: Reinhardt (2005), p. 104 ff. 528 BGH, Urteil on 01.06.1970, BGHZ 54, 165 (Haftung eines Wasserverbandes und Bodenverbandes für Hochwasserschäden). 529 Murswiek (1986), p. 203; Fetzer (1994), p. 69. 530 BGH, Urteil on 21.06.2001, NJW (2001) 3054 (Amtshaftung wegen Erteilung einer rechtswidrigen Baugenehmigung), p. 3054. 523 524

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contrary to a building permit, for instance, were development is prohibited by the relevant specific municipal land use plan,531 state liability would be likely. Hence, the field of application seems narrow.

3.10.2.2

Individualized Groups of People as Third Parties and Land Use Plans

The official duty to a third party needs to be owed to individuals or smaller groups of people that can be individualized.532 Although generally refusing liability for legislation,533 the Federal Supreme Court acknowledges an official duty to third parties with regard to specific municipal land use plans because the affected citizens can be individualized.534 This could be, for instance, the case if a municipality designates a new building area in a floodplain infringing the prohibition of § 78 (1) cl. 1 No. 1 of the Federal Water Act without complying with the requirements for an exception.535 Since this prohibition also intends to protect the life of potential residents,536 the obligation is owed to an individualized group. In the coastal zone, this is, however, of limited applicability.537 Apart from floodplains, municipalities are under a duty to prevent health risks through their land use plans. This jurisprudence was established with regards to allowing residential development on contaminated soil and is limited to health risk and where the municipalities knew or ought to have known about the contamination.538 As allowing development in areas at risk from coastal hazards can also cause health risks, the jurisprudence could be applied analogously. Dissimilar to contaminated soil, however, coastal erosion and coastal hazards are not intrinsic to the land but threats from ‘outside’ and can be remedied by protection works or flood-resistant designed houses, making the land a place safe enough for living. Thus, an analogy would be unsound. To conclude, liability for breaching an official duty is restricted in several ways and seems to play a minor role.

531

See above: Sect. 3.7.1.4. Ossenbühl and Cornils (2013), p. 106. 533 See for instance: BGH, Urteil on 24.10.1996, NJW (1997) 123 (Haftung der Mitgliedstaaten wegen Verstoßes gegen Gemeinschaftsrecht - Brasserie du Pecheur), p. 124. 534 BGH, Urteil on 28.06.1984, BGHZ 92, 34. 535 Stüer (2007), p. 21. On the previous, but almost identical wording provision, Federal Water Act: WHG, § 31b (4), which ceased to be in force in March 2010. 536 Federal Water Act: WHG, § 78 (2) No. 3 reflects this intention. 537 See above: Sect. 3.6.1.3. 538 BGH, Urteil on 21.02.1991, NJW (1991) 2701 (Ausweisung ehemaligen Deponiegeländes zu Wohnzwecken). 532

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3.10.3 Intervention of Equivalent Effect to Expropriation (Enteignungsgleicher Eingriff) Other claims related to state liability are available for infringements of property. For instance, since Art. 14 (3) of the Basic Law only requires compensation for lawful expropriations,539 it seems self-evident that unlawful infringements of property demand, a fortiori, compensation.540 Where state action541 in the public interest directly results in an unlawful infringement of property, compensation can be claimed based on ‘the intervention of equivalent effect to expropriation’.542 Example:543 Based on an unlawful project approval, a river was relocated and the shore lower lying than before, resulting in increased flood risk. Following flood damage to trees of a tree nursery close to the river was considered as an intervention of equivalent effect to expropriation. Arguably, the example above is applicable where unlawful project approvals increase coastal flood risk.

3.10.4 Indirect Expropriation (Enteignender Eingriff) Although less relevant, the claim based on indirect expropriation grants compensation for side effects of lawful state action impairing the property right.544 The requirements are very similar to the ‘intervention of equivalent effect to expropriation’, both providing compensation for exceptional sacrifices. Unlike for the aforementioned claim, the state action has to be lawful for the indirect expropriation

539

BVerfG, Beschluss on 15.07.1981, BVerfGE 58, 300 (Nassauskiesung), paragraph no. 94f. BGH, Urteil on 16.10.1952, VerwRspr (1953) 222 (Enteignungsentschädigung bei Entziehung des Mietrechts), p. 223. 541 Liability for state omission is restricted, among other, to cases where the state was obliged to take a particular action, see: BGH, Urteil on 27.01.1994, NJW (1994) 858 (Irak-Embargo und Haftung der Bundesrepublik), p. 861. (‘qualifiziertes Unterlassen’). 542 Detterbeck (2018), p. 443 ff. The legal basis of this claim is either seen in the general principle of sacrifice (Allgemeiner Aufopferungsgrundsatz) derived from Prussian law or in customary law. The unlawfulness indicates the additional requirement of a ‘special scarifice’ (Sonderopfer). 543 BGH, Urteil on 17.01.1985, NVwZ (1986) 76 (Haftung Überschwemmung enteignungsgleicher Eingriff). 544 Ossenbühl and Cornils (2013), p. 337. 540

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claim. Due to the lawfulness of the state’s action or omission, compensation is limited to unacceptably severe immediate consequences for the proprietor.545 Example:546 After the disastrous storm surge in 1962, Hamburg decided to enhance its existing dikes. As a result, the land of a company importing precious woods, located in the foreland of a dike, became more susceptible to storm surge flooding. In the absence of expropriation, compensation was based on the claim of indirect expropriation since the company’s land was ‘sacrificed’ for the safety of other properties. A similar claim seems possible where coastal defences increase coastal erosion in other parts of the coast. However, the scope is limited where beaches and dunes, which are usually not private property, are primarily affected and shelter private property.547

3.10.5 Summary All in all, the examined state liability claims have some, although not a broach scope of application with regards to coastal adaptation.

3.11

Summary

All in all, the legal framework for coastal adaptation to rising sea levels in Germany is characterized by a variety of different responsibilities for different adaptation strategies as well as among those strategies. For instance, while the municipalities regulate land use, the overarching spatial planning takes place on the state level; the responsibility for dikes, the main adaptation action along the North Sea coast, is divided between self-governed associations for dike maintenance and the state authorities. Germany mainly pursues a protection strategy, which is also reflected in the amount of legislation on protection works, particularly on dikes.548 Most of the

545

Ossenbühl and Cornils (2013), p. 325; Detterbeck (2018), p. 453 ff. The legal basis is the same as for the intervention of equivalent effect to expropriation. 546 BGH, Urteil on 05.03.1981, (Seedeicherhöhung mit der Folge erhöhter Überschwemmungsgefahr für das Vordeichgelände). 547 Bosecke (2005), p. 462 f. 548 See above: Sect. 3.4.

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regulation on the other coastal adaptation strategies—accommodation, avoidance, and retreat—are not exclusively intended for adaptation purposes but are more general. Priority and reserve areas, for example, are general instruments of spatial planning. Furthermore, not all adaptation actions that are permitted in theory are implemented in practice. Although the focus on technical coastal defences is estimated to guarantee sufficient protection in the medium term, a paradigm shift towards a flexible, long-term oriented strategy is necessary to avoid maladaptation and to preserve future adaptation options like relocation or a second dike line.549 In general, precautionary action needs to be proportional to the risk.550 This applies to adaptation actions as well, independent whether proactive or reactive, they need to be proportional to the risk. Proportionality does not exist if there is a disproportion of expense and risk reduction, e.g. were higher expenses for enhancing a dike only slightly reduces the flood risk.551 Distant risks like a 1–2 m, higher sea level cannot outweigh every other interest nor justify any infringement of basic rights like immediate expropriation or complete land use restriction for areas that will only be at-risk in the distant future or dike enhancements that are not yet necessary.552 However, such a far-ranging action can be proportional where it pursues other purposes, e.g. by creating a protected area under nature conservation law, thereby providing environmental and recreational benefits.553 In these cases adaptation action would be a no-regret measure. Hence, this could promote further synergies between coastal adaptation and nature conservation. Nonetheless, nature conservation will remain a counterweight in other cases. Table 3.6 gives an overview of the important provisions concerning coastal adaptation in the current legal framework of Germany.

3.12

Evaluation and Recommendations

So far, an analysis of the current legal provisions concerning coastal adaptation to rising sea levels was provided. The next sections provide general remarks on Germany’s adaptation strategy as well as recommendations for specific adaptation actions. First, the limits of technical protection works are discussed and the need to adopt strategies beyond ‘holding the line’ illustrated. Second, the prospect of adopting different protection standards like in the UK or the Netherlands is assessed taking into account equality before the law as a constitutional requirement. Third, suggestions are made on how an avoidance strategy could be strengthened in

549

See below: Sect. 3.12.1.3. BVerwG, Urteil on 17.02.1984, NVwZ (1984) 371 (Vorsorge gegen Ferntransport von Luftschadstoffen), p. 373. 551 Fischer (2013), p. 142; Köck (1999), p. 158. 552 Gärditz (2013), p. 10. 553 Köck (2013), p. 273. 550

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planning law. Fourth, implementation possibilities for a managed retreat strategy are examined, including constitutional issues. Fifth, the work briefly comments on the role of voluntary compensation and why it should be avoided. Sixth, general changes like a long-term focus and flexibility are recommended for decision-making in the area of coastal adaptation in general. Seventh, the introduction of a ‘climate proofing’ instrument is suggested. Eighth, the role of an Integrated Coastal Zone Management is assessed. Last, the question is addressed whether more uniformity— either through federal or EU law—is necessary.

3.12.1 Focus on Technical Flood Protection The overall focus on technical flood protection has become clear from the analysis of the German legal framework governing coastal adaptation. Furthermore, the limitations of a protection strategy were mentioned. In particular, under high emission scenarios or in case of abrupt changes, coastal defences may prove inadequate to guarantee safety. Hence, attention is first of all given to further explore the reliance on and the limits of technical flood protection, advocating an integrated approach beyond mere technical protection works.

3.12.1.1

Reliance on Technical Solutions

Building and improving dikes to guarantee safety is the dominating view on coastal adaptation within German institutions, constituting an obstacle to other adaptation options.554 The focus on a protection strategy is coherent with the classification of Germany as a 'protective state' due to the positive obligations imposed by the German Basic Law.555 Unsurprisingly, the general plans on coastal protection as key documents also focus on traditional technical flood protection (‘holding the line’) and only deal with sea level rise by including safety buffers and the possibility to enhance protection works later on. The reliance on technical flood protection is also reflected in the State Water Acts. For example where exceptions to the prohibition of buildings in at-risk areas, apply if the area is sufficiently protected or if the flood risks are mitigated.556 The explanatory note further states, that risks for people and assets can only be prevented through prohibitions to build but then continues to say that further economic

554

Scheve (2017), p. 2. Krieger (2013), p. 244. 556 Schleswig-Holstein State Water Act: WasG SH, § 82 (1) No.4 and (2) No. 6. 555

(Not applicable)

§ 13 (1) cl. 1 Construction Regulation

§ 8 Federal Mining Act, § 1 (3) cl. 1 No. 1 Federal Waterways Act

§ 9 (1) No. 16 c), § 136 (2) and § 171a (3) No. 1 Federal Building Code

Flood-resistant design

§ 76 (1) State Water Act

Safeguarding space

Sand nourishment

General plan on coastal protection

Bremen

Sea level rise as parameter for protection works

Funding for protection works

Risk evaluation

Federal State §§ 73–75 Federal Water Act § 3 Act on the Joint Task for the Improvement of the Agrarian Structure and Coastal Preservation

Table 3.6 Main legal regulations Lower-Saxony

Schleswig-Holstein

General plan on General plan on coastal coastal protection protection Calculation by the Federal Waterways Engineering and Research Institute § 53 (2) State § 16 (1) Dike § 82 (1) State Water Water Act Act Act, § 35 (2) cl. 2 State Nature Conservation Act (Not applicable) § 8 State Nature § 80 (1) cl. 1 State Conservation Water Act, § 11 a Act (1) and (4) State Nature Conservation Act § 16 Construc§ 13 Construc§ 14 Construction tion Regulation tion Regulation Regulation

Hamburg

(continued)

§ 84 (1) cl. 1 State Water Act, § 13 (1) No. 1 and 2 State Nature Conservation Act § 13 Construction Regulation

§ 89 (1) State Water Act (obligation to inform)

General plan on coastal protection

Mecklenburg-Western Pomerania

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Keeping areas free from development, priority and reserve areas Coastal Setbacks

§ 61(1) and (2) No. 3 Federal Nature Conservation Act

Federal State § 13 (5) No. 2 (d) Spatial Planning Act, § 5 (2) No. 7 Federal Building Code

Table 3.6 (continued) Bremen

Hamburg

§ 16 (1) Dike Act

Lower-Saxony

§ 82 (1) No. 3 State Water Act

Schleswig-Holstein

§ 89 State Water Act

Mecklenburg-Western Pomerania § 8 (2) cl. 1 State Spatial Planning Act

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development is possible if defences exist.557 Thus, the scope of the prohibition is limited and does not apply, for example, at the entire mainland coast of the North Sea due to the protection by the dikeline.558 Therefore, even though restriction of development is acknowledged as a possibility, the reliance on coastal defences is high and other strategies like the accommodation approach for the HafenCity in Hamburg,559 are rather individual examples than a strategy. Apart from the protective orientation of the state, the long tradition of dikes as the main elements of coastal protection impedes questioning this strategy.560 Coastal adaptation with its emphasis on coastal flood protection focusses on reducing the probability of failure of technical defences without taking into account the vulnerability, e.g. due to intensification of development in the coastal zone. This ignorance is also due to the single, undifferentiated safety standard which does not reflect different levels of vulnerability and risk.561 Moreover, assets located in areas prone to coastal hazards are not even seen as part of the problem but as justification for holding the line,562 i.e. the vulnerability component of risk is entirely neglected.

3.12.1.2

Coordination of Different Actors

A possible explanation of why Germany focuses more on technical solutions and less on land use regulation is the divided responsibility: while the states and their specialized agencies are mainly responsible for coastal protection, the municipalities regulate land use. In contrast, in New Zealand, local governments are responsible for coping with coastal hazards and land use regulation, thus different adaptation strategies can be regulated and implemented by the same public body.563 However, this does not mean that Germany should place land use planning in the hand of their specialized state agencies or impose the task for coastal protection works to the municipalities. Nevertheless, more coordination between the different actors could lead to a more comprehensive strategy that could assess different strategies and coordinate the interaction, thus enhancing risk reduction. If the state agencies building the protection works work together with the municipalities, additional safety could e.g. be achieved by requiring flood-resistant design. Institutionalized cooperation already exists on a state level with the Standing Conference of Ministers responsible for spatial planning and regional conferences of coastal states.

557

Fraktionen von SPD und Bündnis 90/Die Grünen sowie der Abgeordneten des SSW (2016), p. 8. This is because the whole North Sea coast is protected by a main dike line: Generalplan Küstenschutz des Landes Schleswig-Holstein: Fortschreibung 2012, p. 85. See also: Mohr (as of February 2020e) § 82, paragraph no 6.3. 559 See above: Sect. 3.6.1.2. 560 Scheve (2017), pp. 8 and 11. 561 Ahlhorn and Bormann (2015), p. 27. 562 Scheve (2017), p. 23. 563 See below: Sect. 4.2. 558

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Institutionalized cooperation between the state agencies, the state agencies for spatial planning, the municipalities and the associations for dike maintenance could be helpful.

3.12.1.3 3.12.1.3.1

Limits of Technical Solutions Factual and Economical Limitations

From the analysis conducted in this chapter, it is clear that considering alternative concepts is highly important since defence structures cannot be enhanced without limit. Due to statics, ground stability, and limited available space necessary for broadening a dike, purely technical flood protection is not infinite. Although the currently and subsequently planned dike enhancements will likely be able to cope with up to 1.5 m of sea level rise,564 this may not even be high enough until the end of this century since some predictions exceed this value.565 Some dikes are already around 9 m high.566 Before reaching factual technical limits, increasing costs for the construction and maintenance of coastal defences, including sand nourishments, will likely make a mainly technical coastal protection strategy uneconomical. As costs increase, society’s acceptance of coastal protection costs is likely to decrease.567 Intangible losses like ecologically detrimental effects of protection works may reduce acceptance as well. Apart from its expensiveness, technical flood protection is not always effective and can be detrimental to coastal ecosystems.568 Moreover, a mere technical coastal adaptation strategy is hardly sustainable since the impression of safety given by the defences may lead to further development, increasing the vulnerability and thus the risk.569 In this case, protection works are maladaptive, entailing severe consequences due to the higher potential for damages in case the defence fails.570

3.12.1.3.2

Need for an Integrated Approach

In the light of rising sea levels and increasing coastal hazard risk, an integrated approach to coastal protection, combining technical coastal protection to ‘hold the

564

See above: Sect. 3.4.3. See above: Sect. 2.1.2. 566 Niedersächsischer Landesbetrieb für Wasserwirtschaft, Küsten- und Naturschutz (NLWKN) (2020) Küstenschutz und Deichbau in Niedersachsen: Antworten auf häufig gestellte Fragen. 567 Hofstede (2011), p. 97. 568 Bosecke (2005), p. 84. 569 Hofstede (2011), p. 97 f.; Greiving et al. (2018), p. 196. This is often referred to as the ‘dike effect’ or ‘levee effect’. 570 See above: Sect. 2.3. 565

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line’ and flexible, areal coastal protection concepts, promises more effective protection.571 Notably, if a tipping point is reached, increasing the velocity and magnitude of sea level rise, the restriction to limit the likeliness of flooding by coastal defences need to be enhanced using all available strategies to decrease vulnerability, e.g. by land use regulations or flood-resistant design. At the same time, resilience could be enhanced by giving insurance a stronger role. Although the Federal Government acknowledges the necessity of new strategies apart from enhancing and maintaining dikes, it fails to provide a binding and precise direction.572 Because of the strong protective character and tradition, legally binding requirements to assess different adaptation strategies to rising sea levels appear necessary to achieve a paradigm shift and use the full potential of coastal adaptation strategies. The transition to a coastal adaptation strategy that includes accommodation, avoidance, and retreat as equal alternatives to protection could be supported by extending federal funding from coastal defences only to all adaptation strategies.573

3.12.2 Different Protection Standards for Different Areas? Part of a paradigm shift might also be a reassessment of the existing protection standard. Up to now, the German coastal protection strategy guarantees the same uniform protection level everywhere.574 The decision of Hamburg, Lower Saxony, and Schleswig-Holstein to work together concerning the dikes at the river Elbe, was also made in order to guarantee the existing high protection standard in the long-term as well as equal living conditions for the coastal residents.575 Increasing costs and effort to guarantee a high safety standard against coastal hazard risks, allowing different protection levels may become necessary to concentrate resources. Other nations, like the Netherlands and the United Kingdom, already prioritize defending some regions over others. The following paragraphs introduce key aspects of the aforementioned examples and then assess whether different safety standards could be implemented under German law, particularly with regards to the legal requirements of equality before the law and the protection of legitimate expectation. Finally, some criteria for distinction are suggested.

571

Bovet (2011), p. 6. Bundesregierung (2008), p. 43. 573 Janssen et al. (2016), p. 284. 574 Spiekermann and Franck (2014), p. 75 f.; Ahlhorn and Bormann (2015), p. 27. See also above: Sect. 3.12.1.1. 575 Bundesanstalt für Wasserbau (2018), p. 21. 572

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The Netherlands and the United Kingdom as Role Models?

As a low-lying nation at the North Sea coast, the Netherlands’ survival as a nation is threatened by sea level rise, making coastal adaptation an issue of national importance. The Deltacommissie, a state committee appointed after a disastrous flood event in 1953, determined the maximum acceptable risk as the safety standard for different regions using three different factors: (1) highest storm surge level based on the conditions of the 1953 event, (2) storm surge frequency and (3) costs of dike reinforcements compared to the economic value within the diked area. For the regions of North and Central Holland, for instance, a safety standard of 1/10,000 a year (extreme water level occurring once in a 10,000 years) was chosen while other coastal regions were assigned a 1/4000 a year probability.576 Correspondingly, minimum safety standards for every section of the country’s dike line are established by the Dutch Water Act. The minimum flood probability standards assigned by the Act, vary between a probability of 1:100 and 1:1,000,000, depending on the dike section.577 The safety standard depends on different factors, e.g. vulnerability and economic values.578 Similarly, the government policy in the UK limits defending the coastline to locations where this is technically sensible, sustainable and economically feasible to do so, thus likely defending more densely populated parts of the coast.579 Shoreline Management Plans determine which sections of the coastline will be defended in the short, medium and long-term and where managed retreat is pursued.580

3.12.2.2

Implementation Possibility in Germany

Taking the Netherlands and the UK as an example, different safety standards and different strategies could be a way for coastal adaptation on the German coastlines. Despite the aforementioned assertion of an undifferentiated single safety standard, some reservations have to be made. In Mecklenburg-Western Pomerania, the responsibility of the state to protect the coast only extends to settlements, making them a priority over other areas, like agricultural land.581 Furthermore, under Lower

576

Deltacommissie (2008), p. 40. Dutch Water Act (Waterwet), Annex III. 578 Ahlhorn and Bormann (2015), p. 27. 579 Department for Environment, Food and Rural Affairs (2012), p. 13. 580 See e.g. North Norfolk District Council et al. (2012), p. 44 ff. The first community to be decommissioned as a result is the village Fairbourne in Wales, see: Wall (18 May 2019) ‘This is a wake-up call’: the villagers who could be Britain’s frist climate refugees. 581 Mecklenburg-Western Pomeranian State Water Act: LWaG MV, § 83 (1) cl. 3: “Die Pflicht zur Sicherung der Küsten erstreckt sich auf den Schutz von im Zusammenhang bebauten Gebieten.” 577

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Saxonian law, the dikeline can be relocated if the repair of a destroyed or damaged dike is not reasonable.582 Real estate properties that cease to be protected as a consequence are entitled to adequate monetary compensation.583 Although this provision is an exception and narrowly worded, the intention and the underlying reasoning can be generalized: the current standard of protection is neither absolute nor guaranteed at an existing level. There is no obligation to maintain a certain standard at any cost. However, the action taken by the Netherlands and the UK go well beyond the German provisions. Rising sea levels will likely make further action necessary. In the future, priorities may have to be defined among settlements, raising issues of equity and climate justice.584 More important, different safety standards would need to be consistent with the Basic Law, in particular, the equality principle.

3.12.2.2.1

Equality Before the Law

Art. 3. (1) of the German Basic Law reads “all persons shall be equal before the law”. Equal treatment is required when applying the law and when drafting legislation.585 Briefly summarized, the constitutional equality principle forbids unequal treatment of what is similar and equal treatment of what is different.586 Similarity and difference depend, at least to a certain extent, on the point of view and the chosen parameters for comparison. A village at the coast threatened by sea level rise in its existence is, for instance, different from one in the mountains, far away from the sea. The same coastal village would, on the other hand, be similar to a city at the (same) coast as both are coastal settlements. Although the standard of evaluating whether an unequal treatment is justified is a controversial issue in the German jurisprudence and legal literature,587 a detailed analysis is beyond the scope of this work. In general, a stricter standard is applied to unequal treatments that are considered to be more severe, mostly if the criteria used for differentiation is related to unchangeable characteristics of a person. For less severe cases, unequal treatment can be justified by factual reasons, i.e. if the differentiation is not arbitrary.588 Suitable criteria for different safety standards would rather relate to the number of people in the area or its economic importance than on unchangeable characteristics of a person like age or gender. Thus, and since Lower Saxonian Dike Act: NDG, § 13 (1). Similar: Bremen State Water Act: BremWG, § 73. Lower Saxonian Dike Act: NDG, § 13 (2). 584 See generally for this issue below: Sect. 5.5.11. 585 Kischel (as of 15.02.2018) Art. 3, paragraph no. 9 f. These concepts are know as ‘Rechtsanwendungsgleichheit’ (equality when applying the law) and ‘Rechtssetzungsgleichheit’ (equality in legislation). 586 Kirchhof (as of August 2018) Art. 3 (1) GG, paragraph no. 73; Kischel (as of 15.02.2018) Art. 3, paragraph no. 15. 587 Kischel (as of 15.02.2018) Art. 3, paragraph no. 28 ff. with further references. 588 Kischel (as of 15.02.2018) Art. 3, paragraph 30 f. Comprehensively: Kirchhof (as of August 2018) Art. 3 (1) GG, paragraph no. 264 ff. 582 583

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people can also influence their safety standard themselves to some extent, e.g. by using flood-resistant design, coastal protection standards would only need to satisfy the standard of arbitrariness. Factual reasons that can justify unequal treatment of coastal communities are: the number of people affected (which would also make relocation of bigger settlements more difficult) and the economic importance of a city (e.g. with a port). On the other hand, population and economic importance of a coastal settlement constitute major differences making a port city and a small coastal settlement two different things. Unequal treatment of coastal communities is thus either possible because of a lack of similarity or justified. The jurisprudence of the Federal Constitutional Court supports this conclusion since financial reasons can be a cause for differentiation, in particular where services and payments (Leistungen) are provided.589 Protection against coastal hazards by either building or funding defences is such a service or payment by the state. Depending on an overall cost-benefit analysis, a differentiation based on protection costs or a settlement’s economic importance seems justifiable. Furthermore, if the state shall comply effectively with its positive obligations, it seems acceptable to concentrate (the most expensive) protection works where the financial investment is worth it in the long-term.590 All in all, Art. 3 (1) of the Basic Law does not a priori forbid prioritizing some coastal areas/settlements over others and as positive obligations entail a margin of discretion, prioritizing areas or implementing a retreat strategy can also be a way to comply with the duty to protect.591

3.12.2.2.2

Protection of Legitimate Expectation (Vertrauensschutz)

Even if introducing different safety standards is not infringing the equality principle, citizens living at the coast could have a legitimate expectation that the state will continue granting the current level of protection in the future due to the long history and tradition of coastal defences. This would constitute a barrier to opt for and implement other coastal adaptation strategies. With regard to a change in legislation, a legitimate expectation that the law continues to be the same is only protected for retroactive but not for future changes.592 Otherwise, the legislator would be unable to respond to changing or newly emerging circumstances. However, a legislator without the power to change the law would be contrary to the idea of a democracy. Rising sea levels and changing coastal hazard risk can constitute changing conditions that require and justify new

589

BVerfG, Urteil on 07.07.1992, NJW (1992) 2213 (Berücksichtigung Kindererziehungszeiten in der gesetzlichen Rentenversicherung), p. 2216. 590 Bosecke (2005), p. 455. 591 See above: Sect. 3.8.1.4. 592 Grzeszick (as of August 2018) Art. 20 GG, Art. 20 (4) paragraph no 71.

von

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legislation and adaptation strategies. Notably, where the protection by dikes (which is only relative, not absolute) is not viable in the long-term, there can be no legitimate expectation that the state continues with this strategy.593 Consequently, there is no legitimate expectation that the state keeps up the same level of protection under the changed conditions of rising sea levels. Similarly, even if consistent practice may oblige the administration to guarantee a self-established protection level594 the practice can be changed.595 Summing up, neither the equality principle nor legitimate expectations generally forbid distinguishing between different protection levels.

3.12.2.2.3

Suggested Criteria

However, the constitutionality of assigning or not assigning priority to certain coastal areas depends on the distinguishing criteria applied. Ideally, public or parliamentary debate should determine these criteria. Although not a legal consideration, a dialogue with the stakeholders would be recommendable. Suitable criteria include the value of the affected assets, the number of people living in the area in question, future costs for flood protection, importance of the area for the whole state (e.g. a city with a port will likely be more important for the nation’s economy than a small rural village) but also cultural values like the protection of UNESCO world heritage sites, e.g. the town hall in Bremen or the city of Wismar. Including cultural and environmental interest would be congruent with the Floods Directive, which aims at reducing adverse consequences of floods not only with regard to human health but also the environment, cultural heritage, and economic activity.596

3.12.3 Strengthening Adaptation in Planning Law Based on the assumption that technical defences will not be sufficient in the longterm, the role of planning law for adaptation is likely to increase, in particular with regards to an avoidance strategy. Although climate change adaptation is already a basic principle of spatial planning,597 it is only addressed among other issues like biodiversity and reduction of land use and thus rather hidden in the provision. Redrafting the provision by separately addressing climate change adaptation would likely give more weight to this concern and could include instructions to

593

Bosecke (2005), p. 492. VG Köln, Beschluss on 06.07.2005, paragraph no. 42. 595 Sachs (as of 2018) § 40, paragraph no. 124. 596 See above: Sect. 3.2. 597 Spatial Planning Act: ROG, § 2 (2) No. 6. 594

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define adaptation potential and to assign areas that are likely needed for adaptation purposes, e.g. priority areas for flood protection. The so far not exercised power of the federal government to concretise basic principles of spatial planning598 could also be used to strengthen this mandate.599 The importance of reducing coastal hazard risk by decreasing the vulnerability was illustrated above as well as the need to restrict further development in planning law. Strengthening an avoidance strategy can be achieved through amending existing instruments or introducing new ones.

3.12.3.1

Spatial Planning

Priority and reserve areas were examined as important instruments of spatial planning.600 Assigning priority and reserve areas for coastal adaptation could be implemented through a specialist subplan of a land use plan on either climate change adaptation or flood protection in general.601 The existing categories could be used to implement risk avoidance. For instance, all areas below a certain future sea level or a certain distance from the coastline could be designated as priority areas for coastal protection, thereby creating a setback line. The draft of the new state-wide land use plan for Schleswig-Holstein, for instance, proposes ‘priority areas for coastal protection and climate change adaptation in the coastal zone.’602 The priority areas are mostly congruent with the minimum distances from dikes, dunes or cliffs established by Schleswig-Holstein’s State Water Act,603 but also extends to insufficiently protected coastal areas at high flood risk. In Mecklenburg-Western Pomerania, the existing coastal protection areas could be extended and adapted to the changing coastal landscape.604 (Re-) establishing prohibitions to build and requiring long-term uses to be revocable,605 would preserve different adaptation options and not only enable a retreat strategy but also safeguard space to adapt coastal defences or to protect areas for clay or sand dredging. Thus, this can be considered a no- or at least low-regret strategy providing flexibility for future decision-making in any case and raising the awareness of the responsible actors and the people living in these areas of the existing risks.606 As a consequence, those stakeholders themselves could take better informed decisions

Spatial Planning Act: ROG, § 17 (3) cl. 1. Runkel (as of 2018b) § 17 ROG, paragraph no. 53–55. 600 See above: Sect. 3.7.2. 601 Schumacher et al. (2014), p. 298. Specialist subplans are permitted by Spatial Planning Act: ROG, § 7 (1) cl. 3. 602 Ministerium für Inneres, ländliche Räume und Integration Schleswig-Holstein (2018), p. 251. 603 See above: Sects. 3.4.4 and 3.8.2.1. 604 Bosecke (2005), p. 438. 605 Bovet (2010), p. 101. 606 Spiekermann and Franck (2014), pp. 68 and 75. 598 599

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such as making their houses or businesses flood-resistant. Similar to the assignment of priority and reserve areas, the category of exclusion areas (Ausschlussgebiete) which already exist in some State Spatial Planning Acts,607 could be introduced into the spatial planning laws of the coastal states. By assigning exclusion areas in statewide and regional land use plans, new development could be restricted in areas that are or will be threatened in the future by rising sea levels.608 Furthermore, priority or reserve areas can be used to prepare a managed retreat strategy by assigning locations where people could be relocated to when they are encouraged or forced to leave their properties. No matter if the designated places are adjacent to the settlement that will be relocated or located further landwards, they should not themselves be likely to become prone to coastal hazards or be subject to other natural hazards as this would be an example of maladaptation. Similar to different setback lines with different timeframes (e.g. today, in 50-years and 100-years) commonly used by planning authorities in New Zealand,609 different risk levels could be reflected in German spatial planning by using the stricter priority, reserve or exclusion areas. Because of the impact of safeguarding areas for coastal adaptation and this being a controversial issue, regulations by federal or state law or requirements set in statewide land use plans are preferable over regional planning which lacks the necessary assertiveness.610

3.12.3.2

Land Use Planning

Since state-wide and regional land use plans are only binding on other state actors, it is important that adaptation is addressed at the local level through binding land use regulations by the municipalities. Higher-ranking planning directives like the objectives and basic principles of spatial planning can support the implementation of coastal adaptation. The function of land use planning for climate change adaptation could generally be enhanced by establishing an obligation to consider long-term viability and climate change impacts like sea level rise when preparing land use plans. This could not only help to avoid further development in at-risk areas or future at-risk areas but also raise awareness the of municipalities to address this issue. Since coastal flood protection is handled mainly by the states but land use planning is the municipalities’ task, the latter are likely unaware of their possibilities to adapt to rising sea levels, fully

Baden-Württemberg State Planning Act: LplG BW, § 11 (7) cl. 1 and cl. 4 Bavarian State Planning Act: BayLplG, Art. 14 (2) cl. 1 No. 3. 608 Janssen et al. (2016), p. 101. 609 See below: Sect. 4.6.1.1. 610 Spiekermann and Franck (2014), p. 67. 607

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relying on the protection works.611 Furthermore, coastal adaptation is neither the main task of the municipalities nor the main purpose of land use plans, which may contribute to the unawareness.612 Thus, defining (coastal) adaptation as one of their tasks would give them a proactive role and encourage adaptation strategies beyond protection. Besides the land use plans as more general instruments, individual land uses could be limited in time to ensure flexibility. Under the current legal framework, however, temporary building permits only have a restricted use. Permitting temporary building permits in all cases where land use is likely to be subject to climate change impacts like sea level rise in the long-term, e.g. within a timeframe of the next 100 years, would expand the possibility for adaptation actions in general. The same end could be achieved by making all building permits revocable in these areas. Similarly, to temporal building permits, temporal leaseholds could be used to enable the use of an area that will be affected by climate change, e.g. extreme events in the future.613 A leasehold is the (saleable and heritable) right to have a building on the property of someone else.614 This could limit or ‘phase out’ development if the state already owns the land. Temporal land use is a flexible option that while reducing vulnerability is less severe than an immediate prohibition. In terms of proportionality, allowing temporary land use is a less severe means than a complete prohibition but still safeguards future options and prevents grandfathered rights.

3.12.3.3

Relocatable Buildings

Another flexible option that could be combined with temporary land use are relocatable buildings. When the temporal permit expires, the building could be relocated to a safer location. In at-risk areas buildings could be required to be relocatable, linked to e.g. the relative sea level as a trigger to relocate. In the UK, coastal villages at the eroding Yorkshire coast have already been replaced by caravan and mobile home parks, which can be moved further landwards as the eroding coastline retreats.615 Although this example addresses the context of coastal erosion, relocatable buildings also seem capable to cope with coastal flooding—mobile homes could e.g. be moved to a safe location during a storm surge.

611

OVG NRW, Beschluss on 14.07.2014, ZfBR (2014) 774, p. 779. The court explicitly held that the municipalities can rely on public protection works and assume that they will not fail. 612 See also below: Sect. 5.5.5.2.2. 613 Bundesministerium für Verkehr, Bau und Stadtentwicklung (2013b), p. 82. 614 Leasehold Act: ErbbauRG, § 1 (1). 615 Griggs (2017), p. 91 ff.

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No Relocation Requirements in Land Use Plans

De lege lata, relocation requirements cannot be established by specific municipal land use plans since the definite list of permissible issues listed by § 9 of the Federal Building Code does not include relocatability nor removability. Although areas where the construction of buildings requires structural or technical measures that avoid or mitigate flood damage can be determined, the wording and history616 of the provision indicate that the provision aims at enabling flood-resistant design rather than a relocation requirement. (Design) conditions, flood-resistant design requirements allow the construction of a building. Thus they do not affect property rights as severely as a relocation requirement which might result in moving the building not just further inland but in some cases to a different municipality or even region. The fact that relocation is not a strategy currently considered furthermore supports the interpretation, those relocatable buildings are not included in the scope of the provision. The same reasoning applies to the obligation of the municipalities to take into account flood-resistant design for the construction of buildings in assigned floodplains when drafting land use plans.617 Although the content of general municipal land use plan is not limited to certain issues,618 those plans are not legally binding for third parties619 and thus cannot set mandatory requirements. Consequently, the list of determinations in specific municipal land use plans should be enhanced in order to include relocation requirements.

3.12.3.3.2

Temporary Building Permit

However, if a specific municipal land use plan establishes that the land use is only temporary,620 the actual building permit may contain an ancillary clause to ensure the removal/relocation after the permit expires. Ancillary clauses in administrative acts are permissible if they ensure that the legal requirements are met.621 In the case of a temporary building permit, the legal requirement ensured by removal or relocation obligation would be to guarantee that the land use ends when the permit expires. In contrast to a requirement generally established for an area by a land use plan, ancillary clauses need to be included in every permit separately. However, as pointed out above, temporary building permits are only an exception.622

The explanatory note mentiones flood-resistant buildings material as an example: Bundesregierung (2017), p. 33. 617 Federal Water Act: WHG, § 78 (3) No. 3. 618 Federal Building Code: BauGB, § 5 (1) is worded “especially” (insbesondere). 619 Mitschang (as of 2019) § 5 BauGB, paragraph no 45; Jaeger (as of 01.08.2018) § 5 BauGB, paragraph no. 10 f. 620 Federal Building Code: BauGB, § 9 (2). 621 Federal Administration Act: VwVfG, § 36 (1). 622 See above: Sect. 3.7.4. 616

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Relocatable buildings would still have to comply with the relevant law, e.g. the construction regulations or the land use plans but generally, there are no provisions that would a priori prohibit relocatable buildings. Although relocatable buildings are not common in Germany,623 there are already a few companies offering relocatable houses.624 Those companies do not consider natural hazard events but respond to the growing mobility often due to the need to move to a different city for work. Overall, temporary land use combined with relocatable buildings could avoid lock-ins while complying with constitutional requirements like the principle of proportionality.

3.12.3.3.3

Relocatable Buildings on Shifting Islands

On the islands, relocatable buildings could be combined with abandoning hard and soft protection measures, thus allowing the islands to shift and adapt to rising sea levels like it did in the past. Since the island would change its shape and position, developments on the island would have to relocate with the island.625 Inundated parts of the island and the accreted land would both belong to the federal state. Property owners would lose their land to the federal waterway without compensation.626 As real estate boundaries are fixed, landowners who would lose their property could be compensated with a right to relocate to the new land were the island shifted to and an entitlement to a corresponding easement against the federal state as the new owner of accreting land. This would constitute a major legal challenge for the landowners.

3.12.4 Managed Retreat Strategy Nowadays uncommon, a managed retreat strategy is likely to gain importance as sea levels and cost for protection works continue to rise. Notably in case extreme scenarios come true or the Antarctic or Greenland ice sheets melt, thus entailing several meters of sea level rise. However, these changes will not happen over night, leaving time to prepare. Retreat strategies are best implemented over time by first prohibiting new land use and limiting existing development to minor maintenance, and afterwards relocation seeking a dialogue with the affected inhabitants to abandon or relocate existing buildings.627 In the UK, the pilot program “East Riding

623

In other countries like New Zealand, relocating a house is not unusual. The author witnessed three house transportations when visiting the country. 624 See for a list of several companies: https://tiny-houses.de/. Accessed 19.03.2020. 625 Reise (2015a), p. 64. 626 See above: Sect. 3.5.1. 627 Spiekermann and Franck (2014), p. 76.

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Coastal Change Pathfinder” promotes managed retreat through a mix of deterrence and incentives: after identifying real properties at risk to be lost entirely to coastal erosion, any compensation claims were excluded while offering assistance to find new property further inland.628 The next sections examine the status quo, illustrating why retreat strategies should be enabled by the legal framework, before discussing responsibilities and criteria for choosing a managed retreat strategy. The section closes by addressing the particular case of establishing a second dikeline.

3.12.4.1

Status quo and the Necessity for Enabling Retreat Strategies

Although a retreat strategy is permitted by the current legal framework,629 managed retreat as an alternative option has not seriously been considered or discussed in Germany yet.630 On the contrary, retreat strategies are considered not to be an option by the German coastal states.631 The general plan on coastal protection of Lower Saxony and Bremen, for instance, declares the technical coastal protection as irreplaceable and ensures the sustainable development of the coast as the livelihood of mankind.632 The objective of spatial planning in Lower-Saxony ensuring the inhabitability of the East Frisian islands in the long-term reads as a decision against a retreat strategy.633 Furthermore, the restoration of polders or saltmarshes is rather selective. At the North Sea coast, discussing managed retreat is mostly avoided due to its controversial nature and even Mecklenburg-Western Pomerania, where retreat is considered as an appropriate strategy, has not explicitly adopted managed retreat as a coastal adaptation strategy.634 In fact, managed retreat seems to be better suited for coastal settlements at the Baltic Sea rather than the North Sea coast. While retreat at the Baltic Sea coast would result in either a shorter or no dike line and thus save costs, the same strategy would require a new, even longer dike line located further landwards at the mainland coast of the North Sea due to the extensive low-lying area.635 It might further be a viable option for the Halligen and Frisian islands in the North Sea. In the long-term, retreat may also become necessary at the North Sea mainland coast, for instance, to avoid losing the Wadden Sea to coastal squeeze. Where rising sea levels are likely to result in losing extensive coastal areas, a change in the settlement structure is necessary, especially in areas where use and

Janssen et al. (2016), p. 93; East Riding of Yorkshire Council ‘Support for coastal communities at risk’. Now ‘East Riding Coastal Change Fund’. 629 See above: Sect. 3.8. 630 Othengrafen (2014), p. 127. 631 Eckstein and Strunz (2017). 632 Generalplan Küstenschutz Niedersachsen/Bremen - Festland, p. 40 f. 633 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 08. 634 de La Vega-Leinert et al. (2018), p. 588. 635 Rupp-Armstrong and Nicholls (2007), p. 1423. 628

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protection become uneconomical or if rebuilding after a storm event would be too costly.636 Partial retreat may become necessary to relocate expensive dikes to create new foreland in front of that dike or to allow erosion processes on the islands that otherwise require expensive protection measures. In rural areas with a decreasing population a retreat strategy may be more economical.637

3.12.4.2

Decision on Managed Retreat

While protection strategies are developed by state authorities through the general plans on coastal protection and avoidance is split between different actors due to the responsibilities for spatial and land use planning, it is less clear which authority is responsible for choosing a managed retreat strategy. At least where managed retreat is pursued not just on a case-by-case-basis through land use plans and redevelopment of settlements, but as an overall strategy, the decision may have to be taken by the legislator. This is because the executive can only act on a legal basis if their action e.g. infringes fundamental rights protected by the Basic Law. The extent and the level of detail of the legal basis vary depending on the matter in question. As a rule, all important decisions have to be made by Parliament and cannot be delegated to the executive.638 This is known as the Wesentlichkeitstheorie, the rule against delegation of essential decisions.639 Where the state’s action (or omission) is vital for the realization of fundamental rights or that are substantial for the relationship between the state and its citizens, a decision is essential.640 If the current approach is substituted or enhanced by a retreat strategy that includes expropriation, a parliamentary decision would arguably be necessary because of the constitutional protection of property. The fact that a managed retreat strategy would be contrary to the current protect strategy pursued by the supports this argument. For individual cases of relocation, a parliamentary decision does not seem necessary since an exception is not contrary to the general strategy. An overall managed retreat strategy could be enabled by including retreat as a feasible option in the provisions of the State Water Acts on coastal protection. Up to now, their focus is on a protection strategy, thus this is another argument supporting that the legislator has to decide to change to a formerly established strategy. Including, for instance, an explicit stipulation on retreat would comply with this and would support considering managed retreat as an alternative. 636

Fleischhauer et al. (2009), p. 25. Spiekermann and Franck (2014), p. 56. 638 See for the rule against delegation of essential decisions: Grzeszick (as of August 2018) Art. 20 GG, Art. 20 VI, paragraph no. 105 f. 639 This has some similarities to the rule against sub-delegation of statutory powers under common law, although there it relates to powers assigned by Parliament. See for details: Wade and Forsyth (2014), pp. 259 f and 747 f. 640 Detterbeck (2018), p. 69 f.; BVerfG, Beschluss on 21.12.1977, BVerfGE 47, 46 (Sexualkundeunterricht), paragraph no. 90–92. 637

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143

Suggested Criteria

If managed retreat is established as a viable adaptation strategy, criteria for selecting places where a managed retreat strategy should be implemented need to be subsequently developed. Here reference can be made to the criteria suggested for different protection standards.641 With regard to the number of people or homes affected, more weight should be given to permanent homes than to holiday homes. While the latter is more a financial investment that can be compensated with money, permanent residents suffer the immaterial loss of their home and social circle. That expropriations are considered as more severe on permanent residents642 supports this argument. A different question relates to compensation for the lost properties. As mentioned above, in the UK compensation was excluded and relocation help offered instead. In Germany, the Basic Law requires compensation for expropriation. Where managed retreat takes place voluntarily, the participants are in a similar position with regard to losing their property and should be treated equally.643 Thus, the UK examples do not seem transferable. When determining the nature and extent of compensation by law, an equitable balance between the public interest and the interest of the affected needs to be struck.644 The extent of compensation could reflect the shared funding for protection works between the federal state and the state as well as the landowners’ contribution as members of the associations for dike maintenance. Furthermore, compensation calculations could take into account whether sea level rise and accelerating coastal hazard risks were known at the time of purchase, thereby also preventing that advantage is taken of this regulation. As many coastal landowners rely on the current protection strategy, communicating that this is unlikely to be a guaranteed option everywhere in the long-term, is an important enabler for a retreat strategy. The market value of the land could be based on the amount a buyer with full knowledge about the risks would be willing to pay.645 As protection works would be discontinued with a retreat strategy, this would ensure that the landowners are not better off than if they would be allowed to stay. Although this may seem unfair at first sight, it should be borne in mind that coastal residents already benefited from publicly funded protection works over decades. If a settlement or parts of it are sacrificed to make the protection of other parts of the coastline economically feasible, the reasoning for compensating interventions of equivalent effect to expropriation and indirect expropriations may apply since this could be seen as an exceptional sacrifice.

641

See above: Sect. 3.12.2.2.3. BVerfG, Urteil on 17.12.2013, BVerfGE 134, 242 (Braunkohletagebau “Garzweiler II”), paragraph no. 168. 643 Otherwise this would likely infringe the equality principle as discussed at Sect. 3.12.2.2.1. 644 German Basic Law: GG, Art. 14 (3). 645 This would be similar to the payout in Christchurch after the destructive earthquakes, see below: Sect. 4.16.5.2. 642

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Second Dikeline

Although from the analysis above protection and retreat appear to be entirely antithetical, a second dikeline can actually be part of a retreat strategy. In Schleswig-Holstein, a secondary dikeline, mostly consisting of former primary dikes that became secondary ones after land reclamation, still exists on 570 km of the coastline.646 A second dikeline can reduce the flooding area effectively. Around the Jade Bight and the Weser estuary,647 for instance, potential damage reduction by a second dikeline is estimated to reach up to 92%.648 However, as the area in between the two dikelines then functions as a buffer zone and coastal hazard risk is higher there. Hence, the protection standard would be lower and development should be prohibited or restricted to flood-resistant and/or relocatable structures. In addition, the buffer zone could e.g. serve nature conservation purposes or tourism.649

3.12.4.5

Summary

Despite its disruptiveness, managed retreat is likely to become necessary in the longterm. Although the paradigm shift does not need to happen immediately, legal issues and a likely lack of acceptance by affected coastal residents demand foresighted implementation of retreat as a strategy. Therefore, coastal decision-makers need to start assessing retreat as an option now.

3.12.5 No Voluntary Compensation So far, obligations to pay compensation were assessed, including state liability for inadequate coastal adaptation. After a natural disaster like flooding, the state often offers compensation to victims without being legally required to do so. For instance, after the serious floods as a result of heavy rainfall in 2013, the state issued programs for immediate help of the flood victims as well as reconstruction aid.650 Although some individual homeowners rebuilt their homes using flood-resistant design, the reconstruction was predominantly to the status quo.651 Where post-disaster compensation supports rebuilding the affected community in their pre-event condition without transforming them into more resilient

646

Hofstede (2008), p. 138. The regions assessed are Butjadingen, Wangerland and Wursten at the Lower Saxonian North Sea coast. 648 Schirmer (2007), p. 180. 649 Spiekermann and Franck (2014), p. 55. 650 Bundesministerium des Inneren (2013). 651 Kammerbauer and Wamsler (2018), p. 10. 647

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communities, the well-meant help is likely to lead to maladaptation.652 If voluntary compensation is paid, it should only be granted under the condition that a similar event is not going to cause the same damage and costs again, e.g. by using floodresistant design. Restricting compensation to increasing resilience can effectively help adaptation and prevent wasting money.

3.12.6 Recommended Changes for Planning and Decision-Making The next paragraphs address planning and decision-making in general, relating to all types of coastal adaptation strategies and in most cases climate change adaptation in general. First of all, the importance of taking a long-term perspective is presented, before moving on to the flexibility and adjustability of decisions.

3.12.6.1

Long-Term Focus

For now, the focus on technical flood protection and the possibilities to enhance dikes later on seems to be sufficient, but the limitations of this approach were already pointed out. As sea levels rise and increasing coastal hazards may change the conditions at the coast significantly within the next decades, the potential longterm developments need to be considered in planning and decision-making. Coastal adaptation strategies often require a long planning and implementation period and last for a long period of time, e.g. coastal defences can last up to 100 years.653 Consequently, any plans and major decisions at the coast (e.g. those requiring a project approval) should mandatorily take into account a timeframe of at least a 100 years and the potential impacts during this timeframe. Buildings and infrastructure have a similar lifespan and planning decisions are often irreversible, thus they need to take into account likely changes in future climate and already adapt to them.654 Moreover, managed retreat should preferably be implemented over time to overcome existing obstacles and facilitate acceptance. Spatial and land use planning should also be foresighted since a location that is currently safe and apt for development, may be threatened by the end of this century. Ensuring that planning decisions are viable in the long-term will avoid expensive adaptation options like constructing protection works or relocating assets that

652

Glavovic and Smith (2014), p. 4. Reise (2015b), p. 44. 654 Othengrafen (2014), p. 57. 653

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became threatened by rising sea levels.655 Instead, a foresighted adaptation strategy can strengthen and direct development to less vulnerable areas656 by prioritizing infrastructure and businesses there.657 Bearing in mind future risks can help to build resilient development and preserve future adaptation options, i.e. identifying future vulnerabilities helps to develop robust coastal adaptation concepts.658 If, for instance, a second dikeline or a partial retreat shall be available options in the future, sufficient space has to be kept free of settlements, roads or wind power plants.659 All these examples highlight the importance of taking a long-term perspective in planning and decision-making at the coast. Therefore, coastal adaptation should plan for a world in the 22nd century.660 Up to now, neither the Spatial Planning Act nor the Federal Building Code contain any timeframe that spatial or land use plans should take into account. Both acts should be amended and set a mandatory minimum timeframe, e.g. a 100 years, preferably consistent with a timeframe for project approvals as well as for the general plans on coastal protection.661

3.12.6.2 3.12.6.2.1

More Flexibility for Administrative Decisions Coping with Uncertainties

Taking a long-term perspective does, however, not ensure that decisions and strategies are reversible or adjustable. Hence, flexible administrative decisions should complement the long-term focus. Whereas a long-term focus defines a timeframe of climate change impacts to be considered, flexible and adjustable adaptation strategies are able to cope with a range of possible climate change scenarios within or even beyond that timeframe. Since the uncertainties concerning velocity and magnitude of sea level rise cannot be eliminated entirely,662 the legal framework needs to adapt and become more flexible to enable adjustable adaptation strategies.663 The law must also be able to incorporate new scientific understandings. In other words: adaptation laws must be adaptive themselves.

655

European Commission (2009), p. 87. With regrad to sea level rise this would be further inland, higher lying areas. 657 Albrecht et al. (2018), p. 36. 658 Fröhle et al. (2011), p. 105. 659 Personal communication by Michael Schirmer (Bremischer Deichverband am rechten Weserufer, on 22 September 2016). 660 See with a similar conclusion: Scheve (2017), p. 24. 661 Spiekermann and Franck (2014), p. 64. 662 See above: Sect. 2.1. 663 Bundesinstitut für Bau-, Stadt- und Raumforschung im Bundesamt für Bauwesen und Raumordnung (2016), p. 14. 656

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On the other hand, it is the role of law to provide certainty. Since it is neither possible nor desirable to design legal regulations that address every possible climate change development, the alternative is to either assign wide discretion to the implementing agencies or to regulate details in easier amendable (subordinate) regulations.664 In New Zealand, for instance, most regulations on coastal adaptation are made by subordinate legislation.665

3.12.6.2.2

Adaptable and Flexible Instruments

Adaptability to changed circumstances like continuously rising sea levels, increased likelihood of coastal hazards or better knowledge should replace the paradigm of a permanent and final decision.666 General instruments for flexible action of administrative bodies are: temporary permits, subsequent orders, monitoring, adaptation obligations, and follow-up inspections.667 In particular, temporary building permits and subsequent orders as imposable with regard to coastal protection works,668 can prevent grandfathered rights and legitimate expectation and thus make it easier to amend the law.669 Particularly the current system of spatial planning is criticized to be too unadaptable to cope with the consequences of climate change.670 To a limited extent, specific municipal land use plans can already consider alternative options for land use when drafting the plan.671 In Lower Saxony, planning and actions in the coastal zone ought to be reversible and adaptable to cope with changes and new knowledge as a basic principle of spatial planning in its state-wide land use plan.672 Generally, basic principles of spatial planning as parameters for administrative decisions are more flexible and reversible than objectives of spatial planning since they are only directives, not final decisions.673 Thus, they are more apt to integrate climate change adaptation into spatial planning.674

664

McDonald (2013), p. 127. See Sects. 4.2.2 and 5.1.4.2.2. 666 Appel (2004), p. 345 f.; Gies (2018), p. 240; Reese (2012), p. 402. 667 Fischer (2013), p. 174 f. 668 Federal Water Act: WHG, § 70 (1) in conjunction with § 13 (1). 669 Czychowski and Reinhardt (eds) (2014), § 13 paragraph no. 88, p. 322; Schönthaler et al. (2018), p. 47; see above: Sects. 3.8.1.3.1 and 3.12.2.2.2. 670 Fischer (2013), p. 290 f.; Kment (2011), 129. Kment also criticizes that spatial planning normally only take into account the next 15 to 20 years and demands long-term planning. 671 Federal Building Code: BauGB, § 9 (2). 672 Landesraumordnungsprogramm Niedersachsen: LROP, 1.3 05 cl. 5. 673 See above: Sect. 3.7.1.2. 674 Bundesministerium für Verkehr, Bau und Stadtentwicklung (2013a), p. 34. 665

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Examples

An example where uncertainty was addressed more adequately than usual can be found in Rostock, a port city at the Baltic Sea. The city developed four different scenarios to cope with the uncertainties of climate change as well as demographic changes. With regards to sea level rise, the scenarios used 20 cm, 60 cm (used in two scenarios) and 1 m of sea level rise.675 More general, alternative approaches that allow for flexible, long-term oriented planning seeing adaptation as a process, not a single action,676 include: adaptation pathways, adaptive policymaking and as a combination of the aforementioned, dynamic adaptative policy pathways. While adaptive policymaking provides for uncertainties by incorporating opportunities and vulnerabilities, adaptation pathways use “adaptation tipping points” that determine when an action no longer meets the defined objectives and new action is required. Different possible actions after the tipping point are established similar to a decision tree or a roadmap.677 Example:678 In Australia, the adaptation pathways approach was tested on a local scale to help a local government with the adaptation to sea level rise. The proposed adaptation pathway identified three different adaptation/decision points and the actions to be taken are summarized in Table 3.7.

3.12.6.3

Fixed Plan Review Intervals

Another, simple way to achieve a more iterative, adaptable planning approach are fixed periods of plan review and if necessary plan adaptation,679 as the flood risk and flood hazard maps drafted in accordance with the EU Floods Directive.680 A similar review requirement for spatial and land use plans would make them more dynamic and adaptive.681 For some state-wide and regional land use plans, fixed review intervals exist, regional land use plans in Lower Saxony need to be reviewed every 10 years682 and Mecklenburg-Western Pomerania establishes a 5-year interval for state-wide and regional land use plans.683 For general municipal land use plans, a

675

Hagemeier-Klose et al. (2013), pp. 423 and 425. Barnett et al. (2014), p. 1103. 677 Haasnoot et al. (2013), p. 487 ff. 678 Barnett et al. (2014). 679 Fischer (2013), p. 175. 680 See above: Sect. 3.2.1. 681 Reese (2010b), p. 60 f. 682 Lower Saxonian Spatial Planning Act: NROG, § 5 (7) cl. 1. 683 Mecklenburg-Western Pomeranian State Planning Act: LPlG M-V, § 4 (2). 676

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Table 3.7 Adaptation pathways in Australia Initial situation Trigger event

Action initiated

Low-cost and low-regret activities that minimize present risks, prepare for future actions and minimize the exposure of new assets to future damages

1st decision point Inundation of the Esplanade for more than 5 days in a year, causing frequent and detrimental disruptions to the infrastructure necessary for the orderly functioning of the town Stringent control over new developments, and steps to prepare for the relocation of critical infrastructure and dwellings to more elevated parts of the town

2nd decision point Two 1.8 m floods in a year, impacting on the viability of all critical infrastructure and habitable dwellings below 1.8 m above mean sea level

3rd decision point Breach of the barrier dune such the ocean waves breach on the town, very likely leading to permanent inundation of low-lying areas of the town

Managed relocation of all low-lying critical infrastructure and habitable dwellings to more elevated parts of the town

Actions in this step are to be determined by future generations through processes of review and evaluation after the earlier trigger points are passed

review interval of 15 years existed until 2007,684 suggests that a review interval of six years like under the Floods Directive could be inappropriate for land use plans. However, an interval of 12 years could still align both planning processes.685 Introducing a fixed review requirement for the general plans on coastal protection would further support coastal adaptation by reassessing sea level rise in accordance with new scientific knowledge.

3.12.6.4

Summary

In order to achieve effective adaptation in the long-term, foresighted decisionmaking nowadays is necessary. This includes assessing long-term developments as well as the possibility to adjust decisions in the future.

3.12.7 Climate Proofing Integrating long-term orientation and climate change adaptation effectively into planning law requires introducing a climate proofing instrument.686 Beginning

Federal Building Code: BauGB a.F. § 5 (1) cl. 4. Fischer (2013), pp. 294 and 337. 686 Fischer (2013), p. 232 ff. with further references. 684 685

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with a definition of ‘climate proofing’, the next section assesses if current instruments are already apt to take into account climate change. Advantages and disadvantages of introducing climate proofing as a separate instrument or incorporating it into environmental impact assessments and environmental audits are discussed subsequently. The last part examines specialist planning for climate change as well as a ‘stress test’ for planning decisions as issues related to climate proofing.

3.12.7.1

Definition and Purpose

Climate Proofing identifies the consequences of climate change on land use and infrastructure in order to improve resilience and the adaptation capacity of spatial planning.687 Similar to conventional ‘weather-’ or ‘hazard-proofing’ of infrastructure, climate proofing takes into account hazards and climatic conditions when designing, constructing, using and maintaining infrastructure. Climate proofing additionally takes into account how these hazards and climatic conditions might change in the future, for instance changing temperatures.688 In contrast to environmental impact assessments, climate proofing does not assess the impacts of the project on the environment, but the impacts of the potential climate change induced changes of environmental conditions on the project.689 In other words: climate proofing seeks to ensure that land use or projects will be usable during their intended life-span despite climate change. This can include assessing how they can avoid risk or adapt to climate change.690 In the coastal context, this could relate to consider coastal erosion and whether this would make it likely that new development will ‘fall into the sea’ in the future or if flood-resistant design is required due to increasing coastal flood risk. Examples of climate proofing exist, for instance, with regards to infrastructure. A case study on the Solomon Islands included an assessment of current and expected changes in hazards and vulnerability under climate change as well as the identification of adaptation measures to reduce risks to an acceptable level.691 In particular, climate proofing at the design stage can enhance the lifetime of projects at risk from climate change.692

687

Birkmann and Fleischhauer (2009), p. 118. United Nations Development Programme (2011), p. 24. 689 Birkmann and Fleischhauer (2009), p. 118; Köck (2010), p. 334. 690 Ministerkonferenz für Raumordnung (2013), p. 35. 691 Lal and Thurairajah (2011), p. 2. 692 Asian Development Bank (2005), p. 106. 688

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3.12.7.2

151

Taking into Account Climate Change in Current Instruments

Some climate change impacts can already be taken into account by current instruments. For example, where an environmental impact assessment is required, changing environmental conditions as a result of climate change can already be taken into account. This is because the assessment of long-term consequences of a project on the environment and since these impacts do not need to reach a certain level of probability.693 The vulnerability of a project with regard to climate change impacts like augmented flood risk at the project site is listed as a potential cause for a project’s environmental impact.694 Similarly, the strategic environmental audit for plans and programs can also include climate change impacts and adaptation to them.695 Recently, the scope of the environmental audit of land use plans was amended and now includes the assessment of the impacts of the planned projects on the climate, e.g. emissions as well as their vulnerability to climate change impacts.696 Although this does not require to take adaptation action, it is likely to at least raise awareness of the potential impacts. At least this provides information on the risk and enables taking informed decisions that may entail adaptation action. Due to the recent introduction, it is yet to see how effective this tool is. However, the scope of investigation and assessment of climate change in environmental impact assessments is limited and e.g. does not include basic research but at least allows to take into account the current state of knowledge.697 This seems transferrable to environmental audits. Consequently, the ‘climate proofing part’ of existing instruments is limited in its scope of application as well as in the assessment itself.

3.12.7.3

Procedural Aspects

Adding and strengthening climate proofing in existing environmental assessments avoids creating a new instrument and duplication.698 On the other hand, environmental impact assessments and environmental audits are tools for environmental protection. Thus, they focus on effects on the environment, not the impacts of climate change on the plans or projects. As mentioned, environmental impact assessments have a limited scope and do not include all projects that will be affected by climate change. Hence, a separate climate proofing is preferable.699 Although

693

Köck (2010), p. 332; Fischer (2013), p. 198. Environmental Impact Assessment Act: UVPG, Annex 4, No. 4 c) hh). 695 Fischer (2013), p. 200 f.; Schumacher et al. (2014), p. 299. 696 Federal Building Code: BauGB, Annex 1 No. 2 b) gg). 697 Appold (as of 2018) § 2 UVPG, paragraph no. 14. 698 Ministerkonferenz für Raumordnung (2013), p. 34; Reese et al. (2010), p. 345 ff. 699 Fischer (2013), p. 236; Schönthaler et al. (2018), pp. 41, 47, 50 and 52. 694

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climate proofing could also be integrated into the regional planning procedure700 to consider climate change at an early stage, this instrument is limited to larger projects. Independent from whether climate proofing is conducted as part of an environmental impact assessment or in a separate procedure, minimum standards concerning scope, depth, and methods are necessary to guarantee a sufficiently thorough assessment. Requirements could relate to the usage of the most recent climate models, expert opinion on potential climate change impacts, risk zoning, and mapping, including likely changes in risk due to climate change, as well as transparency on uncertainties and identification of adaptation options.701 Following a precautionary approach, safety margins could be applied, at least in areas identified as vulnerable. Flood risk and hazard maps already exist and could be used as part of climate proofing. Mandatory consideration of these maps would overcome the current deficiency of taking into account these risk assessments in spatial planning.702 The fact that hazard maps are mostly used by disaster management agencies but usually not by other public authorities is not limited to Germany but a worldwide problem.703 Such a requirement could also be established separately from a climate proofing instrument, although a comprehensive assessment seems preferable. Introducing a compulsory climate proofing instrument would guarantee that plans and projects take into account climate change impacts like sea level rise and its consequences704 and could encourage plan and decision-makers, including the municipalities, to make use of the existing instruments to adapt to climate change and thus overcome the current dependence on awareness of adaption need and political willingness to adapt.705 Climate proofing would also lead to a mandatory consideration of alternatives that are more climate change resilient or can be considered as adaptation.706 This could provide the opportunity to assess alternative strategies like managed retreat and thereby make choosing the best option in the long-term more likely.

3.12.7.4

Specialist Planning on Climate Change

Instead of introducing a climate proofing that would be limited to plans or projects, a specialist planning for climate change similar to flood risk management plans or air quality plans could be created for the same purpose.707 These climate change plans

700

See above: Sect. 3.7.1.2.3. Reese (2012), p. 408 emphasising that this is necessary to prevent allocation of insufficient resources for the assessment to deliberately ignore “inconvenient truths”. 702 Greiving et al. (2018), p. 195. 703 United Nations Development Programme (2011), p. 18. 704 See with regard to climate change adaptation in general: Fischer (2013), p. 306 f. 705 Albrecht et al. (2018), p. 56. 706 Fischer (2013), p. 252. 707 Meyer (2014), p. 220. 701

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could establish mandatory requirements for competent authorities to define mitigation and adaptation needs, goals and options within their region. A compulsory regulation would ensure that necessary action is taken and not left at the discretion of regional decision-makers that might not be aware of adaptation need or not perceive this issue as a priority. Specialist planning, would not only raise awareness among decision-makers and planners but also among the public.708 However, since climate change exacerbates existing risks like coastal flooding during a storm surge, a climate change plan may not adequately take into account non-climate change related circumstances or result in two parallel plannings along with flood risk management.709 Therefore, climate proofing of plans and projects seems preferable.

3.12.7.5

‘Stress Test’

Part of a climate proofing assessment could be a ‘stress test’ for land use plans as well as project approvals or the non-binding general plans on coastal protection. Including such a worst-case scenario among other possible scenarios would also satisfy the constitutional prohibition of arbitrariness (Willkürverbot) that compels the state to consider all well-founded scientific opinions instead of just one.710 Although it might be difficult to define a worst-case scenario among several scenarios, a requirement to consider a scenario in the upper range of climate change would prevent agencies to select a scenario that suits their plans best and ignores potential risks.711 Considering a worst-case scenario would also allow taking into account the impacts of abrupt climate changes, if e.g. the Greenland ice sheet melts, and promote long-term planning for the severe impacts of significant sea level rise of several meters even if they only take place in the distant future.712 In other words, selecting a worst case scenario would be taking a precautionary approach. By simulating extreme circumstances, actions can be identified that will be necessary in the long-term for sustainable development at the coast. For example, conditions under which an area cannot be protected for factual or economic reasons could be determined and depending on the likeliness and timeframe that these unbearable circumstances could become reality, this would likely promote limiting new development to temporary use or implementing a retreat strategy over time. Early identification of future necessities would give the responsible authorities and especially the affected people enough time to prepare for a radical change. It seems less severe if a retreat strategy is implemented step-by-step over a long timeframe, e.g. by phasing out investments in infrastructure. This would give people time to get

708

Reese et al. (2010), p. 395 ff. Meyer (2014), p. 221. 710 Fischer (2013), p. 165 f. 711 Farber (2011), p. 375 f. Although the article assesses adaptation in the US, the UK and China this likely applies to German agencies as well. 712 See above: Sect. 2.1.3. 709

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used to the idea that they might be able to live in a certain area at the coast while this might not be true for their children or grandchildren. The results of the stress test could also be a basis for debate on how coastal adaptation should take place. Estimated costs for different strategies in the long-term could challenge the protection of some coastal areas, e.g. a small island if society is not willing to continue paying for preserving the (entire) coastline. This should be a decision made by society through their representatives. Due to their controversiality, these questions should be asked now, to allow enough time for discussion and finding an adequate answer.

3.12.8 Integrated Coastal Zone Management (ICZM) Coastal adaptation can be achieved through Integrated Coastal Zone Management (ICZM), which is defined as “a continuous and dynamic process by which decisions are made for the sustainable use, development, and protection of coastal marine areas and resources.”713 In Lower Saxony, for instance, the coastal zone should be developed through an ICZM.714 Among the main functions of ICZM are: area planning (including a long-term perspective), conflict resolution of existing and potential uses, and protection of public safety (e.g. coastal hazards).715 As a sustainable spatial planning concept for the coastal zone, it mainly pursues better reconciliation of different uses and amelioration of environmental conditions.716 Furthermore, ICZM addresses the adverse effects of climate change in the coastal zone (coastal erosion, flooding, and saltwater intrusion) in its management principles.717 Lessons learned from ICZM that can be applied to coastal adaptation, include an inclusive, strategic and adaptative assessment process to assess and cope with climate change impacts at the coast. The ICZM management cycle consisting of (1) issue identification and assessment, (2) program preparation, (3) formal adoption and funding, (4) implementation and (5) evaluation is suitable for coastal adaptation and includes the engagement of stakeholders.718 Another transferable insight from ICZM is the use of the best information and science available in decision-making, which can help planners and decision-makers to deal with the complexity and uncertainty of climate change impacts.719

713

Cicin-Sain and Knecht (1998), p. 39. Lower Saxonian Spatial Planning Act: NROG, § 2 No. 4. 715 Cicin-Sain and Knecht (1998), p. 47. 716 Wille (2009), p. 217. 717 Cicin-Sain and Knecht (1998), p. 56 f. 718 Tobey et al. (2010), p. 322. See for the ICZM process also: Cicin-Sain and Knecht (1998), p. 58 ff who adds “operation” as a stage between implementation and evaluation. 719 Tobey et al. (2010), p. 322. 714

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In practice, the ICZM guidelines are often not implemented since the competent authorities lack the resources to conduct the necessary informal coordination and management.720 Therefore, ICZM can support binding instruments but cannot substitute them.721 Suggestions to improve ICZM in Germany refer to the creation of a 'coastal planning zone' or 'ICZM planning zone' one for the North Sea and one for the Baltic Sea, parallel to the coast with a minimum width of 3 km landwards where all land uses are subject to the requirements defined in an ICZM. These would substitute the current state-wide land use plans and the federal land use plan for the EEZ722 and could be defined as a priority area for precautionary flood protection.723 Effective implementation of ICZM would be achieved by new institutions724 with the competence to make land use plans that are binding for terrestrial land use plans. This would guarantee a comprehensive and uniform spatial planning concept for the coastal zone reconciling the different conflicting interests.725 Reforming spatial planning in the coastal zone can effectively serve coastal adaptation to rising sea levels if the spatial planning authority for those zones is obliged to take into account the potential long-term effects of climate change and if they need to adopt a flexible approach.

3.12.9 More Uniformity Through Federal or EU Legislation Another issue concerning coastal adaptation but not relating to future proofing decision-making is the distribution of responsibility for legislation in this field. The analysis above showed the complexity of the legal framework for coastal adaptation due to the the states as main responsible legislators. Federal law on coastal adaptation or climate change adaptation in general could simplify the legal situation and for instance, set a federally uniform minimum standard for calculating dike dimensions.726 However, since consequences and risks of climate change (e.g. increased flood risk), as well as vulnerability, are determined by regional factors like geography, topography, or settlement structure,727 federal solutions are unlikely to be more effective in general. Furthermore, a Federal Coastal Adaptation Act728

720

Spiekermann and Franck (2014), p. 77. Bovet (2010), p. 104. 722 Bosecke (2005), p. 241; Wille (2009), p. 225. 723 Bosecke (2005), p. 242. 724 The institutions could e.g. consist of representative of the coastal states and the federal state. 725 Wille (2009), pp. 228 f and 247. 726 Bovet (2011), p. 7. 727 Reese et al. (2010), p. 340. 728 The act could be based on the concurrent responsibility of coastal protection assigned by Art. 74 No. 17 of the Basic Law. 721

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would create different discrepancies, e.g. among coastal dikes and river dikes since the latter would remain regulated by State law. For the same reasons, EU legislation on coastal adaptation would not be a universal solution, since the coastline of the EU is even more diverse and vary in the extent of vulnerability to rising sea levels. Whereas the low-lying coasts of Belgium, the Netherlands, Germany, and Poland are classified as highly sensitive to sea level rise, other countries have only specific regions that are highly sensitive.729 EU legislation could even be unlawful since its legislative power is limited to the competences conferred upon it by the member states730 and subject to the principle of subsidiarity. Therefore, the EU may only act if the objectives can be achieved better at Union level.731 Consequently, a common coastal adaptation action would need to achieve better protection than the national governments could provide alone, which is doubtful considering the different conditions and needs. In general, uniformity is useful to a certain extent732 but is not really a concern for German law on coastal adaptation. On the contrary, federal or EU legislation could prevent taking into account the variability of the coast and looking for local solutions.

3.13

Chapter Conclusion

From the analysis above it has become clear that the current legal regime in Germany already enables coastal adaptation to rising sea levels to a certain extent and that adaptation actions are already taking place. Despite the focus on technical flood protection works (including so-called soft-measures like sand nourishments), the implementation of other adaptation strategies is legally permissible. However, those possibilities are not yet used to their full potential and do not constitute a comprehensive strategy. With regard to the general challenges of coastal adaptation (complexity of coastal adaptation, avoidance of maladaptation, long-term perspective and coping with uncertainty) to rising sea levels as set out in the previous chapter,733 the legal framework is improveable. As mentioned above,734 the current strategy is valid in the medium-term but is not as foresighted as it could be. In the long-term, a paradigm 729

European Environment Agency (2013), pp. 8 and 35. Treaty on European Union: TEU, Art. 5 (2). Complementary, Treaty on European Union: TEU, Art. 4 (1) regulates that competences that were not conferred upon the Union remain with the Member States. Besides the mainly declaratory nature of this provision, this establishes a presumption of Member State competence in case of doubt. See: Calliess et al. (as of 2016) Art. 4 EUV, Art. 4 EUV, paragraph no. 2. 731 Treaty on European Union: TEU, Art. 5 (3). 732 See for instance below: Sect. 4.16.1. 733 See above: Sect. 2.6. 734 See above: Sect. 3.11. 730

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shift is required that effectively copes with general adaptation challenges like uncertainty about the impacts of climate change and enables long-term oriented decision-making that considers future adaptation options and costs. Particularly, a shift towards a long-term strategy is necessary to safeguard different possibilities and thus preserves the flexibility to adapt to a yet uncertain future. Where a retreat strategy is the only feasible option in the long-term, a foresighted strategy can enable a gradual transition through e.g. establishing rights of first refusal for these areas or prohibiting permanent development. Linked to another tool of planning law, like priority and reserve areas or temporary building permits, rights of first refusal can be used to implement an adequate, step-by-step strategy. Moreover, the lack of a long-term planning timeframe and the resistance to really consider other adaptation strategies creates the risk for maladaptation through lockin effects and may even increase risk by encouraging further development. Funds that are now used for dike enhancements or sand nourishments might be better used for relocation in some places. Assessing the current coastal adaptation approach by using the criteria developed by the German Environment Agency to evaluate climate change adaptation actions also reveals the same deficiencies. The agencies criteria are:735 (1) (2) (3) (4) (5) (6)

Effectiveness: (long-term) risk reduction Robustness: positive impact for different climate change scenarios Sustainability: balances economic, environmental and social interests Financially feasibility Flexibility: easy and low-cost modification Positive side-effects

Although it is difficult to assess the entire coastal adaptation strategy with those criteria, from the above mentioned it has become apparent that the overall strategy and many adaptation actions do not comply with all of those criteria. The focus on technical defences does not provide risk reduction in the long-term nor is it robust enough to cope with extreme sea level rise should the ice sheets on Greenland and Antarctica melt. Although sand nourishments and the safety margin plus the possibility to subsequently enhance defences provide flexibility in the sense of easy and low-cost, modifications are often detrimental to the environment and the financial feasibility is arguably doubtful in the long-term. Sea level rise is going to be an enormous challenge for coastal communities, who should be involved in the process of developing a long-term strategy. How life at the coast can and should look like in the future is their direct concern since their lives and assets are at stake. Hence, raising awareness of the increasing risk for coastal residents and future limits on protection strategies needs to be part of any coastal adaptation strategy. Due to the dominant protective strategy and the long history of coastal defences, and the expectation to be protected against coastal hazards by the state, a change of this mindset is likely to take time. It is, therefore, necessary to

735

Umweltbundesamt (2013), p. 14.

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communicate the potential risks and the limits of protection works to create the understanding that the prohibition of further development or relocation of existing settlements is not an action against those particular residents but a way to help them adapt to a changing environment, safeguarding them from increasing hazard risks at the coast. Many of the arising challenges and decision on how to adapt to sea level rise entail controversial and also emotional questions (e.g. attachment to home and life at the coast). In a legal environment that protects property rights as strongly as the German Basic Law does, the importance of a legal framework that supports the required paradigm shift is evident.

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North Norfolk District Council, Environment Agency, East Anglia Coastal Group, Great Yarmouth Borough Council, Natural England, Waveney District Council. (2012). Shoreline Management Plan: Kelling to Lowestoft Ness. Ossenbühl, F., & Cornils, M. (2013). Staatshaftungsrecht. München: C.H.Beck. Ostsee-Zeitung. (2019a, September 23). Siedlung bei Greifswald versinkt im Meer - weil sie keinen Küstenschutz bekommt. Ostsee-Zeitung. Retrieved April 02, 2020, from https://www.ostseezeitung.de/Nachrichten/MV-aktuell/Siedlung-am-Greifswalder-Bodden-versinkt-im-Meerweil-sie-keinen-Kuestenschutz-bekommt Ostsee-Zeitung. (2019b, October 17). Loissin: Hoffnung für von der Ostsee bedrohte Siedlung. Ostsee-Zeitung. Retrieved April 02, 2020, from https://www.ostsee-zeitung.de/Vorpommern/ Greifswald/Loissin-Hoffnung-fuer-von-der-Ostsee-bedrohte-Siedlung Othengrafen, M. (2014). Anpassung an den Klimawandel: Das formelle Instrumentarium der Stadtund Regionalplanung. Zugl.: Hamburg, HafenCity Univ. Diss. 2013, Schriftenreihe Studien zur Stadt- und Verkehrsplanung. Kovač, Hamburg. Paelchen, B. (1987). § 37. In E. Oehler (Ed.), Kommentar zum Wassergesetz vom 2. Juli 1982: Zur Ersten Durchführungsverordnung zum Wassergesetz vom 2. Juli 1982, zur Zweiten Durchführungsverordnung zum Wassergesetz - Abwassergeld und Wassernutzungsentgelt vom 2. Juli 1982, zur Dritten Durchführungsverordnung zum Wassergesetz - Schutzgebiete und Vorbehaltsgebiete - vom 2. Juli 1982. Staatsverl. Berlin: der DDR. Papier, H.-J., & Shirvani, F. (2017). In F. J. Säcker et al. (Eds.), Münchener Kommentar zum Bürgerlichen Gesetzbuch: Band 6 (7th ed.). München: C.H.Beck, § 839 BGB. Papier, H.-J., & Shirvani, F. (2018, August). In R. Herzog, et al. (Eds.), Grundgesetz: Kommentar (84th ed.). München: C.H.Beck, Art. 14. Petersen, S. (1989). Deutsches Küstenrecht: Eine systematische Darstellung. Baden-Baden: Nomos. Petz, H. (2018a). In W. Spannowsky & M. Uechtritz (Eds.), Beck’scher Online-Kommentar BauGB (42nd ed.). München: C.H.Beck, § 116 BauGB. Petz, H. (2018b). In W. Spannowsky & M. Uechtritz (Eds.), Beck’scher Online-Kommentar BauGB (42nd ed.). München: C.H.Beck, § 85 BauGB. RADOST Regionale Anpassungsstrategien für die deutsche Ostseeküste. Retrieved March 19, 2020, from https://klimzug-radost.de/ Ramsar Secretariat ‘Ramsar Sites Information Service’. Retrieved March 19, 2020, from https://rsis. ramsar.org/ Rapsch, A. (1989). Kommentar zur Wasserverbandverordnung, WVVO. Düsseldorf: Werner. Reese, M. (2010a). 2. Teil: Die verfassungsrechtlichen Rahmenbedingungen der Anpassung. In Umweltbundesamt (Ed.), Rechtlicher Handlungsbedarf für die Anpassung an die Folgen des Klimawandels (pp. 27–35). Dessau. Reese, M. (2010b). 3. Teil: Die Handlungsfelder staatlicher Anpassungspolitik und Ansatzpunkte rechtlicher Steuerung, A. Hochwasserschutz. In Umweltbundesamt (Ed.), Rechtlicher Handlungsbedarf für die Anpassung an die Folgen des Klimawandels (pp. 36–84). Dessau. Reese, M. (2012). Klimaanpassung im Umwelt- und Planungsrecht, Konzeptionelle Herausforderungen und Optionen. VerwArch, 103, 399–420. Reese, M., Köck, W., & Möckel, S. (2010). G. Räumliche Gesamtplanung. In Umweltbundesamt (Ed.), Rechtlicher Handlungsbedarf für die Anpassung an die Folgen des Klimawandels (pp. 336–402). Dessau. Reffken, H. (2010, November). In M. Elsner & W. Zeiler (Eds.), Niedersächsisches Wassergesetz. Wiesbaden: Kommunal- und Schul-Verl., § 43. Reffken, H. (2013, June). In M. Elsner & W. Zeiler (Eds.), Niedersächsisches Wassergesetz. Wiesbaden: Kommunal- und Schul-Verl., § 107 NWG. Reidt, O. (2016). In U. Battis, S. Mitschang, & O. Reidt (Eds.), Baugesetzbuch Kommentar (14th ed.). München: C.H.Beck, § 171a BauGB. Reinhardt, M. (2004). Hochwasserschutz zwischen Enteignungsentschädigung und Amtshaftung. NuR, 26, 420–429.

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Reinhardt, M. (2005). Hochwasserschutz zwischen Enteignungsentschädigung und Amtshaftung, Bau- und wasserrechtliche Grundlagen der staatlichen Haftung für Überschwemmungsschäden und notleidende Schutzmaßnahmen. In W. Köck (Ed.), Rechtliche Aspekte des vorbeugenden Hochwasserschutzes, Leipziger Schriften zum Umwelt- und Planungsrecht (pp. 87–109). Baden-Baden: Nomos. Reinhardt, M. (2017). Trial and Error: Die WHG Novelle 2017 zum Hochwasserschutz. NVwZ, 1585–1590. Reinhardt, R., & Schäfer, B. (2017, September 15). In B. Schäfer (Ed.), Bundeswasserstraßengesetz (3rd ed.). NomosBundesrecht, § 3. Reise, K. (2015a). Kurswechsel an der Nordseeküste, Warum und wieso schon jetzt? In K. Reise & A. S. MacLean (Eds.), Kurswechsel Küste: Was tun, wenn die Nordsee steigt?, Hanse-Thesen zur Klimaanpassung (pp. 63–74). Kiel, Hamburg: Wachholtz. Reise, K. (2015b). Wie hoch steigt das Meer? In K. Reise & A. S. MacLean (Eds.), Kurswechsel Küste: Was tun, wenn die Nordsee steigt?, Hanse-Thesen zur Klimaanpassung (pp. 37–47). Kiel, Hamburg: Wachholtz. Riese, C. (2018a, July). In M. Beckmann, et al. (Eds.), Landmann/Rohmer, Umweltrecht. München: C.H.Beck, § 67 WHG. Riese, C. (2018b, July). In M. Beckmann, et al. (Eds.), Landmann/Rohmer, Umweltrecht. München: C.H.Beck, § 71 WHG. Robbers, G. (1987). Sicherheit als Menschenrecht: Aspekte der Geschichte, Begründung und Wirkung einer Grundrechtsfunktion. Baden-Baden: Nomos. Robbers, G. (2016). An introduction to German law. Baden-Baden: Nomos. Rossi, M. (2018, June). In F. Sieder, H. Zeitler, & H. Dahme (Eds.), Wasserhaushaltsgesetz/ Abwasserabgabengesetz: Band 1 (51st ed.). München: C.H.Beck, § 73 WHG. Runkel, P. (2018a). In W. Spannowsky, P. Runkel, & K. Goppel (Eds.), Raumordnungsgesetz (ROG) (2nd ed.). München: C.H.Beck, § 1. Runkel, P. (2018b). In W. Spannowsky, P. Runkel, & K. Goppel (Eds.), Raumordnungsgesetz (ROG) (2nd ed.). München: C.H.Beck, § 17 ROG. Runkel, P. (2018c). In W. Spannowsky, P. Runkel, & K. Goppel (Eds.), Raumordnungsgesetz (ROG) (2nd ed.). München: C.H.Beck, § 3 ROG. Rupp-Armstrong, S., & Nicholls, R. J. (2007). Coastal and Estuarine Retreat, a comparison of the application of managed realignment in England and Germany. Journal of Coastal Research, 236, 1418–1430. Sachs, M. (2018). In M. Sachs & H. Schmitz (Eds.), Verwaltungsverfahrensgesetz: Kommentar (9th ed.). München: C.H.Beck, § 40. Sachs, M., & Stern, K. (1988). Das Staatsrecht der Bundesrepublik Deutschland/Bd. 3: Allgemeine Lehren der Grundrechte. München: Beck. Schenk, R. (2017, February). In F. Sieder, H. Zeitler, & H. Dahme (Eds.), Wasserhaushaltsgesetz/ Abwasserabgabengesetz: Band 1 (51st ed.). München: C.H.Beck, § 67 WHG. Schenk, R. (2018, June). In F. Sieder, H. Zeitler, & H. Dahme (Eds.), Wasserhaushaltsgesetz/ Abwasserabgabengesetz: Band 1 (51st ed.). München: C.H.Beck, § 71 WHG. Scheve, J. (2017). Der Sicherheitsdiskurs im deutschen Küstenschutz: Hemmnis für eine notwendige Transformation in Zeiten des Klimawandels. Bremen. Schirmer, M. (2007). Land unter?, Klimawandel, Küstenschutz und Risikomanagement in Nordwestdeutschland: die Perspektive 2050. München: oekom verlag. Schmitz, H. (2018, November 01). In W. Spannowsky & M. Uechtritz (Eds.), Beck’scher OnlineKommentar BauGB (42nd ed.). München: C.H.Beck, § 136. Schneider, S. (2005). Rechtliche Instrumente des Hochwasserschutzes in Deutschland, Wasserrecht und Wasserwirtschaft. Berlin: Erich Schmidt Verlag. Scholz, R. (2018, August). In R. Herzog, et al. (Eds.), Grundgesetz: Kommentar (84th ed.). München: C.H.Beck, Art. 20a. Schönthaler, K., Balla, S., Wachter, T. F., & Peters, H.-J. (2018). Grundlagen der Berücksichtigung des Klimawandels in UVP und SUP. Dessau.

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Schumacher, A., & Schumacher, J. (2011). In J. Schumacher & P. Fischer-Hüftle (Eds.), Bundesnaturschutzgesetz: Kommentar (Rechtswissenschaften und Verwaltung Kommentare, 2nd ed.). Stuttgart: Verlag W. Kohlhammer, § 1 BNatSchG. Schumacher, J., Schumacher, A., Krüsemann, E., Rebsch, S., Becker, R., Niederstadt, F. et al. (2014). Naturschutzrecht im Klimawandel: Juristische Konzepte für naturschutzfachliche Anpassungsstrategien, Schriftenreihe Natur und Recht. Berlin: Springer. Schwendner, J. (2017, February). In F. Sieder, H. Zeitler, & H. Dahme (Eds.), Wasserhaushaltsgesetz/Abwasserabgabengesetz: Band 1 (51st ed.). München: C.H.Beck, § 39 WHG. Seifert, F.-F. (2018). In H. Kröninger, et al. (Eds.), Baugesetzbuch: Mit Baunutzungsverordnung: Handkommentar (NomosKommentar, 4th ed.). Baden-Baden: Nomos, § 142. Singh, M. P. (2001). German administrative law in common law perspective, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht. Berlin: Springer. Söfker, W. (2019a, October). In M. Krautzberger (Ed.), Baugesetzbuch: Kommentar (136th ed.). München: C.H.Beck, § 18 BauNVO. Söfker, W. (2019b, October). In M. Krautzberger (Ed.), Baugesetzbuch: Kommentar (136th ed.). München: C.H.Beck, § 9 BauGB. Spannowsky, W. (2018, May 01). In W. Spannowsky & M. Uechtritz (Eds.), Beck’scher OnlineKommentar BauGB (42nd ed.). München: C.H.Beck, § 9 BauGB. Sparwasser, R., & Wöckel, H. (2007). Ökologische Flutungen von Rückhalteräumen zum Hochwasserschutz und naturschutzrechtliche Eingriffsregelung. NVwZ, 764–770. Speybroeck, J., Bonte, D., Courtens, W., Gheskiere, T., Grootaert, P., Maelfait, J.-P. et al. (2006). Beach nourishment: An ecologically sound coastal alternative?, A review. Aquatic Conservation: Marine and Freshwater Ecosystems, 16, 419–435. Spiekermann, J., & Franck, E. (2014). Anpassung an den Klimawandel in der räumlichen Planung: Handlungsempfehlungen für die niedersächsiche Planungspraxis auf Landes- und Regionalebene. Hannover. Spieth, W. F. (2018, April 01). In L. Giesberts & M. Reinhardt (Eds.), Beck’scher OnlineKommentar Umweltrecht (48th ed.). München: C.H.Beck, § 71 WHG. Stelkens, P. (2018). In M. Sachs & H. Schmitz (Eds.), Verwaltungsverfahrensgesetz: Kommentar (9th ed.). München: C.H.Beck, § 36. Stern, K. (2010). Die Schutzpflichtenfunktion der Grundrechte, Eine juristische Entdeckung. DÖV, 63, 241–249. Stock, M., Kropp, J. P., & Walkenhorst, O. (2009). Risiken, Vulnerabilität und Anpassungserfordernisse für klimaverletzliche Regionen. Raumforsch Raumordn Spat Res Plan, 67, 97–113. Stüer, B. (2007). Hochwasserschutz in der Bauleitplanung und bei der planungsrechtlichen Zulässigkeit von Vorhaben. ZfBR, 17–22. Szczekalla, P. (2002). Die sogenannten grundrechtlichen Schutzpflichten im deutschen und europäischen Recht: Inhalt und Reichweite einer “gemeineuropäischen Grundrechtsfunktion”, Schriften zum europäischen Recht. Berlin: Duncker & Humblot. Széchényi, A., & Hopf, D. (2011). Ausgewählte Aspekte der praktischen Anwendung des neuen Wasserrechts. BayVBl, 357–363. Thorenz, F. (2008). Coastal flood defence and coastal protection algon the North Sea coast of Niedersachsen. Die Küste, 74, 158–169. Tiny Houses Consulting UG. Retrieved March 19, 2020, from https://tiny-houses.de/ Tobey, J., Rubinoff, P., Robadue, D., Ricci, G., Volk, R., Furlow, J. et al. (2010). Practicing coastal adaptation to climate change, lessons from integrated coastal management. Coastal Management, 38, 317–335. Tünnesen-Harmes, C. (2018, January 05). In L. Giesberts & M. Reinhardt (Eds.), Beck’scher Online-Kommentar Umweltrecht (48th ed.). München: C.H.Beck, § 99a WHG. Umweltbundesamt. (2013). Handbuch zur guten Praxis der Anpassung an den Klimawandel. Dessau.

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Umweltbundesamt. (2015a). Vulnerabilität Deutschlands gegenüber dem Klimawandel. Dessau. Umweltbundesamt. (2015b). Monitoringbericht 2015 zur Deutschen Anpassungsstrategie an den Klimawandel: Bericht der Interministeriellen Arbeitsgruppe Anpassungsstrategie der Bundesregierung. Dessau. Umweltbundesamt. (2016). KLIMZUG-NORD, Strategische Anpassungsansätze zum Klimawandel in der Metropolregion Hamburg. Retrieved March 19, 2020, from https://www. umweltbundesamt.de/themen/klima-energie/klimafolgen-anpassung/werkzeuge-deranpassung/projektkatalog/klimzug-nord-strategische-anpassungsansaetze Umweltbundesamt. (2019). Monitoringbericht 2019: zur Deutschen Anpassungsstrategie an den Klimawandel. Dessau. Umweltbundesamt ‘Klimalotse’. Retrieved March 19, 2020, from https://www.umweltbundesamt. de/themen/klima-energie/klimafolgen-anpassung/werkzeuge-der-anpassung/klimalotse UNESCO World Heritage Centre ‘Germany’. Retrieved March 19, 2020, from http://whc.unesco. org/en/statesparties/de United Nations Development Programme. (2011). Paving the way for climate-resilient infrastructure: Guidance for practitioners and planners. New York. Unruh, P. (1996). Zur Dogmatik der grundrechtlichen Schutzpflichten, Schriften zum öffentlichen Recht. Berlin: Duncker & Humblot. Verbraucherzentrale. (2019). Versicherungsschutz für Elementarschäden. Retrieved March 19, 2020, from https://www.verbraucherzentrale.de/wissen/geld-versicherungen/weitereversicherungen/versicherungsschutz-fuer-elementarschaeden-11440 Wade, W., & Forsyth, C. F. (2014). Administrative law. Oxford: Oxford University Press. Wagner, J. (2012). In M. Beckmann (Ed.), Gesetz über die Umweltverträglichkeitsprüfung: (UVPG); Kommentar; mit Kommentierung des Umwelt-Rechtsbehelfsgesetzes (UmwRG) und Erläuterungen zum Öffentlichkeitsbeteiligungsgesetz und zum Gesetz zur Beschleunigung von Planungsverfahren für Infrastrukturvorhaben (4th ed.). Köln: Heymanns, § 16. Wagner, K. (2008). Der Risikoansatz in der europäischen Hochwassermanagementrichtlinie. NuR, 30, 774–779. Wahl, R., & Masing, J. (1990). Schutz durch Eingriff. JZ, 45, 553–604. Wall, T. (2019, May 18). ‘This is a wake-up call’: The villagers who could be Britain’s frist climate refugees. The Guardian. Retrieved April 02, 2020, from https://www.theguardian.com/environ ment/2019/may/18/this-is-a-wake-up-call-the-villagers-who-could-be-britains-first-climaterefugees Wasserstraßen- und Schiffahrtsamt Tönning ‘Der Außenbezirk Helgoland’. Retrieved March 19, 2020, from https://www.wsa-toenning.wsv.de/Webs/WSA/WSA-Toenning/DE/WSAToenning/UeberUns/abz3/abz3_node.html Wille, D. (2009). Raumplanung in der Küsten- und Meeresregion: Das Konzept des Integrierten Küstenzonenmanagements (IKZM) als Herausforderung für das deutsche Raumordnungs-, Zulassungs- und Umweltplanungsrecht, Umweltrechtliche Studien. Baden-Baden: Nomos. Winkler, M. (2005). Klimaschutzrecht: Völker-, europa- und verfassungsrechtliche Grundlagen sowie instrumentelle Umsetzung der deutschen Klimaschutzpolitik unter besonderer Berücksichtigung des Emissionshandels. Zugl.: Halle, Univ. Diss. 2005, Studien zu Gerechtigkeit, Verfassung und Steuerung. Lit, Münster. Winter, G. (2016). Property and environmental protection in Germany. In G. Winter (Ed.), Environmental and property protection in Europe, The Avosetta series (pp. 174–186). Groningen: Europa Law Publishing. WWF Deutschland. (2019). Meeresspiegelanstieg gefährdet Küstennatur: Wie können wir die Natur im Wattenmeer und an der deutschen Ostseeküste retten? Stellungnahme des WWF Deutschland.

Chapter 4

Legal Framework for Coastal Adaptation to Rising Sea Levels in New Zealand

Similar to the proceeding chapter on German law, this chapter analyses if and to what extent New Zealand’s legal framework provides for coastal adaptation to rising sea levels. The chapter starts with a brief overview of the legal system in general and a more detailed introduction to planning law and its instruments since they contain most of the regulations relevant for coastal adaptation. After providing this necessary background information, risk assessments and funding are addressed as overarching issues, before considering land use planning as a tool for avoiding further development in hazard prone areas in particular. The section on land use planning is followed by considering coastal setbacks and buffer zones. Subsequently the relationship between coastal adaptation, for instance land use regulation, and property rights is explored. The examination then moves on to hard and soft defences under a protect strategy. The investigation then turns to managed retreat, among other looking at the current example of relocation in Matatā. Before examining an example of how coastal adaptation strategies are chosen, accommodation in form of floodresistant design and insurance is introduced. The thesis then moves on considering obligations to protect against natural hazards. Next, the intersecting regimes of nature conservation and landscape protection are explored, including potential synergies with coastal adaptation. Then, attention is drawn to the liability of local governments for inadequate adaptation as a framework condition. Finally, the current legal system is evaluated and some recommendations made.

4.1 4.1.1

Introduction New Zealand as a State

First of all, the following section briefly introduces the basic institutional structure of New Zealand. The country is a constitutional monarchy with its unicameral © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5_4

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parliament as legislative branch. New Zealand Parliament also provides the government of the country. In contrast to Germany, New Zealand is not a federal, but a unitary state.1 However, besides its central government, New Zealand has local governments which also play an important role in the country’s society, politics and legal system. Local government is split between two tiers: regional councils and territorial authorities.2 The latter are either city or district councils.3 Furthermore, some unitary authorities carry out the regional as well as the territorial authority functions, like for instance the Auckland Council.4 Since the responsibility for avoidance and mitigation of natural hazards are assigned mainly to the local authorities,5 they play an important role with regard to coastal adaptation. Besides their regulatory power on land use and their key role for natural hazard management, local governments are the major operator of flood protection and river control infrastructure as well as roads.6 The powers, responsibilities, and discretions conferred upon the local governments by the central government are completely delegated and do not reserve any supervisory role of the central government. Therefore, for instance, the local governments exclusively determine tax rates.7 Currently, New Zealand’s local government consists of 6 unitary councils, 11 regional council, and 61 territorial authorities.8 It is beyond the scope of this thesis to examine all those local government jurisdictions, therefore only examples of selected planning instruments are provided. The analysis will focus on the Auckland Regional Council, Tasman District Council (both unitary authorities), Waikato Regional Council, Thames-Coromandel District Council, and Hauraki District Council. Both district councils are located in the Region of Waikato.

1

Joseph (2014), pp. 13, 17 and 311; Ruru (2016), pp. 125 and 128. Local Government Act 2002: LGA, s 21 (a). 3 Resource Management Act 1991: RMA, s 23 (1). 4 James (2018), p. 457. 5 Resource Management Act 1991: RMA, s 30 (1) (c) (iv) and (d) (v) and s 31 (b) (i). Until May 2019, local authorities were also explicitly obliged to have particular regard to the avoidance or mitigation of natural hazards when performing their role: Local Government Act 2002: LGA, s 11A (d). 6 Climate Change Adaptation Technical Working Group (2017), p. 55. 7 Palmer (2012), p. 96. Review of performance is limited to significant failure to carry out obligations or significant deficiencies in management or decision-making processes. 8 Local Government New Zealand (LGNZ) (2017a) Local government in New Zealand. 2

4.1 Introduction

4.1.2

171

Overview of the Legal System

As a former British colony, New Zealand is a common law country.9 Traditionally, the common law system focused on case law which led to a form of legal reasoning in which facts play a central role. This approach is still alive today although legislation has become the main source of law.10 One of the main characteristics of common law is the principle of “stare decisis” or also known as the doctrine of precedent. According to this legal doctrine, decisions create rules that can be applied generally in subsequent cases (like cases are to be treated alike)11 and lower courts are bound by the decisions of higher courts and have to follow their binding rule (ratio decidendi) and thus ensure some legal certainty.12 Legislation is the supreme source of law and overrides judge-made case law. Parliament has unlimited law-making powers and its legislation cannot be declared invalid by other government institutions.13 Furthermore, this parliamentary supremacy also extends to the judiciary: although judges interpret statutes, it is not in their power to declare an act as unconstitutional.14 Consistent with this, there is no hierarchy of laws and Parliament itself is not bound by a constitution,15 unlike the German Basic Law, which also binds parliament.16 Therefore, due to the parliamentary supremacy, New Zealand Parliament could, in theory, pass a law that prohibits anyone from living closer than 100 m or 1 km from the coastline or obligates everyone to live at least 3 m above sea level.

4.1.3

Māori Customary Law and Its Influence on the New Zealand Legal System

New Zealand’s society, politics, and law are partly shaped by Māori,17 who lived in New Zealand long before Europeans arrived at the beginning of the nineteenth century. Although British law and government were established in 1840 and Māori influence upon the affairs of the nation decreased, it experienced a 9 The application of common law and English legislation existing until January 1840 was confirmed by the English Law Acts of 1854, 1858 and 1908. See: Scott (2016a), p. 71. 10 Samuel (2013), p. 2. See also: Scott (2016a), p. 81 who emphasizes that legislation in the past was rare and only meant to correct common law. 11 Scott and Webb (2016), p. 392. 12 See e.g. Cassell & Co Ltd v Broome AC 1027; 2 WLR 645 [1972] 3 UKHL (HL). Furthermore: Samuel (2013), p. 79 f. 13 Ruru (2016), pp. 129 and 141. 14 Samuel (2013), p. 88 f. 15 Ruru (2016), p. 140. 16 See above: Sect. 3.1.1.2. 17 The Māori people came to New Zealand from Polynesia by 1300 AD.

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renaissance.18 In 2013, approximately 15% of New Zealand’s population identified themselves as Māori.19 Nowadays, Māori values and principles20 are recognized by several legislative acts, above all in environmental law.21 The main piece of legislation in this area, the Resource Management Act 1991 (RMA) is a good example of this. The Act declares “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” to be a matter of national importance.22 This of some importance since Māori cultural heritage sites are often located in coastal areas and will be affected by rising sea levels.23 Furthermore, there are some obligations imposed on local governments to consult Māori groups (tangata whenua) when, for instance, preparing a planning document.24

4.1.4

Climate Change Adaptation in New Zealand

In November 2019, a Climate Change Commission was established with the purpose to provide independent, expert advice to the government on climate change mitigation as well as adaptation.25 The same amendment requires the preparation of a national climate change risk assessment and afterwards a national adaptation plan in response.26 Up to now,27 New Zealand does not have such a national plan on adaptation to climate change, although preparations started even before the 2019 amendment.28 Although legislation and policies address adaptation, the provisions lack consistency especially with regard to different timeframes and often contain competing objectives.29 Thus, an overarching National Adaptation Plan could help to overcome these obstacles. Furthermore, a National Policy Statement on natural hazard

Te Ara—The Encyclopedia of New Zealand ‘Māori’. This was established by the (controversial) Treaty of Waitangi. 19 Statistics New Zealand (2013) Major ethnic groups in New Zealand. 20 The Māori world view is a holistic one which connects humankind with nature and e.g. contains the respectful use of natural resources, see: Majurey and Whata (2018), p. 886. 21 Scott (2016b), p. 41; Gordon (2018), p. 339. 22 Resource Management Act 1991: RMA, s 6 e). 23 Climate Change Adaptation Technical Working Group (2017), p. 39. 24 Resource Management Act 1991: RMA, ss 61 (2A), 62 (1) (b), 65 (3) (e). 66 (2A) and 74 (2A). 25 Climate Change Response Act 2002, s 5A and 5B. 26 Climate Change Response Act 2002, s 5ZP, 5ZQ and 5ZS. 27 As of April 2020. 28 National Institute of Water & Atmospheric Research Ltd (NIWA) (2017). The report makes recommendations based on the review of existing national adaptation plans of other countries, including Germany. 29 Climate Change Adaptation Technical Working Group (2018), p. 14. 18

4.2 Background Information

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management was announced to be published in 2018 but this has not happened yet.30 In addition, the government has issued several guidance documents on climate change effects, including coastal hazards. On the local government level, some local authorities have climate change strategies or action plans.31 National funding for research on climate change and adaptation is provided by projects like the Deep South National Science Challenge.

4.2

Background Information

In the absence of a specific responsibility for adaptation to climate change, the responsibility for natural hazards is the closest one with regard to coastal adaptation due to the exacerbation of coastal hazard risk as one of the main impacts of rising sea levels. Local government regulations on coastal hazards and land use are contained in various planning instruments, which play an important role in setting the legal framework for coastal adaptation and govern all adaptation strategies. Understanding their general function and context is therefore necessary before addressing coastal adaptation in particular. Thus, the purpose of the following sections is to provide necessary background information. First of all, the Resource Management Act is introduced as the main statute governing coastal adaptation and explains, inter alia, the implications of matters of national importance, followed by clarifying the scope and the hierarchy of the planning instruments. Afterwards the planning instruments themselves are briefly introduced, before closing with some comments on plan preparation and judicial review. Subsequently, resource consents controlling individual activities, for instance, the construction of coastal defences, are introduced. Whether a resource consent is necessary is determined by the classification of an activity, which is explained next. Finally, guidance material by the national government on coastal hazards is presented.

4.2.1

The Resource Management Act 1991

The Resource Management Act 1991 (RMA) is the central statute for environmental and planning law in New Zealand. In addition to land use, it also addresses natural hazards and regulates structures, including coastal defences.32 Therefore, the RMA

30

As of 31.03.2020. E.g. Christchurch City Council (2010); Dunedin City Council (2010); Greater Wellington Regional Council Climate Change. 32 Resource Management Act 1991: RMA, s 2. This is because the RMA’s definition of ‘resources’ includes structures. 31

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is also the main piece of legislation with regards to coastal adaptation. By addressing land, air and water use under the same legislative Act, the RMA created an integrated and comprehensive piece of environmental legislation.33 The RMA’s jurisdiction covers land as well as the coastal marine area which consists of the foreshore, the seabed, coastal waters, the airspace above and extends to the outer limits of the territorial sea.34 The overall purpose of the RMA established by its s 5 (1) is “to promote the sustainable management of natural and physical resources.” S 5 is considered “a guiding principle which is intended to be applied by those performing functions under the RMA rather than a specifically worded purpose intended more as an aid to interpretation.”35 Hence, this influences plan and decision-making under the RMA. Stronger than s 5 are the subsequently set out the matters of national importance by s 6 and matters set out by s 7. All persons exercising functions and power under the RMA “shall recognise and provide for” matters of national importance. This requires positive action including through the planning instruments (policy statements and plans) under the RMA.36 Relevant matters of national importance of s 6 in the context of coastal adaptation are: (a) preservation of the natural character of the coastal environment (h) management of significant risks from natural hazards.37

The latter was introduced into the Act recently by the Resource Legislation Amendment Act 2017. Due to the recent introduction, there is no jurisprudence yet on what ‘significant‘ natural hazard risks are. The ordinary meaning of ‘significant’ suggests that the risk needs to be substantial, not negligible.38 This can arguably relate to all three aspects of risk—vulnerability, exposure, and hazard.39

Ministry for the Environment (1999), p. 5. The RMA is said to be the ‘groundbreaking’ Act for integrated environmental legislation. 34 Resource Management Act 1991: RMA, s 2 (1). 35 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [24], p. 616. 36 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), p. 656 at [148 f]. See also: Palmer (2018), p. 142. 37 Resource Management Act 1991: RMA, s 2 (1) defines ‘natural hazard’ as follows: “any atmospheric or earth or water related occurrence (including earthquake, tsunami, erosion, volcanic and geothermal activity, landslip, subsidence, sedimentation, wind, drought, fire, or flooding) the action of which adversely affects or my adversely affect human life, property, or other aspects of the environment.” 38 Oxford Living Dictionaries English ‘Significant’ defines the word as “sufficiently great or important to be worthy of attention; noteworthy.” 39 See above: Sects. 1.2.3 and 1.2.4. 33

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In general, the classification as a matter of national importance indicates that these matters are given greater weight than district goals.40 Consequently, natural hazards were assigned a higher status within the RMA through this qualification and thus any decision on resource consents or development of planning instruments needs to give this issue more weight than before.41 This explicit obligation to consider the management of natural hazard risks also supports the local government’s mandate to avoid and mitigate natural hazards as stipulated by s 30 and 31 of the RMA.42 However, since s 6 does not assign any priority to the different matters, they are equally important to other matters of national importance like the protection of areas of significant indigenous vegetation or public access to the coast. Additionally, s 7 (i) of the RMA requires having particular regard43 to the effects of climate change. Apart from some regulation concerning the discharge of greenhouse gases,44 s 7 (i) is the only section of the RMA45 that addresses climate change directly. With regard to climate change adaptation, decision-makers shall investigate and consider the effects of climate change under this section. S 7 is however not as strong as s 6.46 In general, the principles set out by s 6 as well as s 7 of the RMA are tied to the promotion of sustainable management.47 Therefore, all of the matters listed in s 6 are only of national importance in so far as they serve to achieve and promote sustainable management.48 Moreover, issues stated in s 6 of the RMA do not automatically outweigh other relevant considerations.49 Another general consideration to bear in mind is that although the RMA promotes avoidance and mitigation of hazard risks,

40 Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA), Cooke P, p. 260 f. and Bisson J p. 291. The case involved a similar provision of the Town and County Planning Act 1977. 41 Saunders and Beban (2012), p. 14 f. 42 Ministry for the Environment (2015), p. 23. 43 This imposes a duty to be on enquiry which cannot be satisfied by passive actions, see: Gill v Rotorua District Council [1993] 2 NZRMA 604 (Planning Tribunal), at [616]. 44 Resource Management Act 1991: RMA, ss 70A, 70B, 104E and 104F. 45 Up to now, the RMA is the only New Zealand statute giving a mandate to have particular regard to the effects of climate change. See: Climate Change Adaptation Technical Working Group (2018), p. 32. 46 Long Bay-Okura Great Park Society Inc v North Shore City Council (EnvC), A 078/2008 on 16.07.2008, at [282]. 47 The provisions refer to “achieving the purpose of this Act” i.e. s 5 (1). 48 See for instance: New Zealand Rail Ltd v Marlborough District Council [1993] NZRMA 70 (HC), at p. 85. Trio Holdings v Marlborough District Council [1996] 2 ELRNZ 353 (Planning Tribunal), p. 359. 49 Hahei Developments Ltd v Thames Coromandel District Council (EnvC), C 176/2003 on 23.12.2003, at [24]; Meridian Energy Ltd v Wellington City Council (EnvC), W 031/2007 on 14.05.2007, at [449].

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an elimination of all risk is not necessary50 and would furthermore be impractical to achieve. Furthermore, the function assigned to local governments concerning natural hazards can impact the content of planning instruments. In one of its cases, the Environment Court found that the proposed Coastal Environment Plan under appeal failed to provide an integrated hazard management since not all hazards were considered and the recognition of catastrophic events was insufficient. The Court highlighted that if resource management had “a significant function in relation to natural hazards – and it seems important enough to Parliament to give functions in respect of natural hazards to the regional and territorial authorities then surely authorities should recognize that inverse relationship in the preparation and wording of their plans.”51

4.2.2

Planning Instruments Under the RMA

4.2.2.1

Terminology

Before addressing planning instruments in particular, clarifying some important terms is necessary. Planning instruments set out issues, objectives, policies, and rules. The compulsory content depends on the type of planning instrument.52 As apparent from Table 4.1, the issue generally identifies the problem/situation, in this case, that structures in the coastal marine area can have negative effects on the coastal environment and its use. Thus, the objective defines the envisaged outcome, setting out how structures should ideally be dealt with. To achieve this outcome, policies set more precise targets (‘ensure’), e.g. on unlawfully established structures. In contrast to the aforementioned categories, rules are the most precise since they concern specific activities and have legal effect (‘is a permitted activity’).

4.2.2.2

Scope and Hierarchy of Planning Instruments Under the RMA

Figures 4.1 and 4.2 illustrate the scope and the hierarchy of the different planning instruments under the RMA.53 The hierarchical system of planning instruments bears some similarities to the German system of spatial and land use plans, in

50

Waterfront Watch v Wellington Regional Council (EnvC), W 43/2009 on 09.06.2009, p. 22 at [74]. The Environment Court moreover emphasized that it would be self-evident that people living close to the coast assume a higher tsunami risk than people how choose to live in the hills. 51 Save the Bay v Canterbury Regional Council (EnvC), C 6-01 on 19.01.2001, p. 15 f. at [25]. 52 Regional and district plans, for instance, must state the objective for the jurisdiction, its policies, and rules, they may state the issues addressed by the plan: Resource Management Act 1991: RMA, s 67 (1) and (2) (a) and s 75 (1) and (2) (a). 53 See for the hierarchy of planning documents: Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [10] to [11], p. 611 ff.

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Table 4.1 Important terms in planning instruments

a

Issue

Definition/Explanation Matter identified by the planning instrument

Objective

Achieved outcome/goal

Policy

Strategy to achieve the objectives

Rule

Have legal effect, permission or prohibition of specific activities, regional and district rules restrict land use (s 9 (2) and (3) of the RMA)

Examples from the Waikato Regional Coastal Plan: Issue 5.1: Structures in the CMAa can adversely affect natural character, public access and amenity values, impact on natural processes, and conflict with other uses. Objective 5.1: Any development, maintenance, and removal of structures in the CMA carried out in a manner which protects natural character and amenity values, and avoids adverse effects on the environment (including cumulative effects) and on natural processes, does not constitute a hazard to navigation and takes into account other uses of the CMA and adjacent land. Policy 5.1.1: Ensure that existing structures in the CMA that were not lawfully established are either authorised or removed. Rule 16.4.20: The maintenance and repair of any existing lawful structure in the CMA is a permitted activity provided it complies with the conditions stated in this Rule. Conditions (i) Any visible disturbance to the foreshore shall be remedied within 48 h. (ii) The maintenance and repair shall not result in any increase in the area of foreshore or seabed occupied by the structure.[. . .]

This abbreviation refers to the coastal marine area, i.e. the foreshore, seabed, and coastal waters

particular the obligation to implement higher ranking plans. However, in contrast to Germany’s ‘mutual feedback principle’, there is no obligation of higher ranking instruments to consider concerns of a lower level.54

4.2.2.3

New Zealand Coastal Policy Statement (NZCPS)

On the central government level, national policy statements ‘state objectives and policies for matters of national significance that are relevant to achieve the purpose of this Act.’55 With regard to the coastal environment, the national policy statement,

54 55

See Sects. 3.7.1.3 and 5.1.3.1. Resource Management Act 1991: RMA, s 45 (1).

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National Policy Statements, National Environmental Standards

New Zealand Coastal Policy Statement

Regional Policy Statement

Regional Plan

District Plan

Regional

District

Coastal Plan

District Plan

Boundary of the Coastal

boundary

Regional

Boundary

Environment

Mean high water springs

12 nautical mile limit of territorial sea

Fig. 4.1 Scope of planning instruments

the New Zealand coastal policy statement (NZCPS) is mandatory.56 However, the term ‘coastal environment’ and thus the scope of this instrument, is not defined in the RMA nor the NZCPS. However, Policy 1 of the NZCPS provides some guidance on the extent of the coastal environment which is clearly more extensive than the coastal marine area. When assessing the scope of the ‘coastal environment’, the courts regularly emphasize that the coastal environment depends on the local context and that “grey areas and blurred edges” will frequently remain.57 In its preamble, the current NZCPS acknowledges, among other, the difficulties in promoting sustainable management in the coastal environment due to its great

56

Resource Management Act 1991: RMA, s 57 (1). Kaupokonui Beach Society Inc v South Taranaki District Council (EnvC), W 030/2008 on 19.05.2008, at [36] and [46]. 57

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National Level (Central Government) National Planning Standards

National

New Zealand

Environmental

Coastal Policy

Standards

Statement

National Policy Statement

Regional Level (Regional Councils) Regional Policy Statements Regional Coastal Plans

Regional Plans

District Level (Territorial Authorities) District Plans Fig. 4.2 Hierarchy of planning instruments

variety, settlements, and infrastructure close to the coasts as well as its vulnerability to natural hazards.58 Examples: Objective 5 To ensure that coastal hazard risks taking account of climate change, are managed by: • locating new development away from areas prone to such risks; • considering responses, including managed retreat, for existing development in this situation; and • protecting or restoring natural defences to coastal hazards. Policy 25 (Subdivision, Use, and Development in Areas of Coastal Hazard Risk)59 In areas potentially affected by coastal hazards over at least the next 100 years: 58

New Zealand Coastal Policy Statement 2010: NZCPS 2010, p. 5 f. Policy 25 does not prohibit development in potentially coastal hazard prone areas but is one of the factors to be considered under s 104 when deciding on a resource consent, see: Carter Holt Harvey HBU v Tasman District Council [2013] NZEnvC 25 [2013] 17 ELRNZ 239 (EnvC), p. 271 at [179]. However, the wording ‘avoid’ is seen as a stronger directive than ‘discourage’ by the Ministry for the Environment: Ministry for the Environment (2017b), p. 32. 59

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(a) avoid increasing the risk of social, environmental and economic harm from coastal hazards; (b) avoid redevelopment, or change in land use, that would increase the risk of adverse effects from coastal hazards; [. . .] (e) discourage hard protection structures and promote the use of alternatives to them, including natural defences; [. . .] Since the NZCPS can apply to the coastal environment in general or to any specified part, it may prohibit particular activities in certain localities.60 Although the NZCPS cannot contain rules and policies are not rules under the definition of the RMA, a policy can be mandatory, then having the same effect as a rule.61 Regardless of whether the NZCPS content is compulsory or discretionary, the instrument sets out important directives that have to be implemented by other planning instruments.

4.2.2.4

Regional Policy Statements (RPS)

Regional councils are obliged to prepare regional policy statements (RPS).62 They provide an overview of the resource management issues in the region as well as the policies regarding integrated management of the natural and physical resources in the region, in order to achieve the overall purpose of the RMA. Furthermore, they contain methods to implement the policies.63 Although an RPS cannot establish rules,64 i.e. binding regulations on individual citizens, its provisions can be mandatory.65 The Waikato RPS, for instance, names addressing the effects of climate change with an emphasis on the long-term risks of sea level rise to settlements and infrastructure e.g. through increased coastal flooding and erosion, as an issue.66

60 Now clarified by: Resource Management Act 1991: RMA, s 58 (3). Before the provision was introduced, the Supreme Court argued that since district plans may prohibit activities absolutely or in particular localities, there would be no reason why such prohibitions should not be stated by a planning instrument higher in the hierarchy: Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [132], p. 651. 61 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [116] and [122], p. 646 and p. 648. 62 Resource Management Act 1991: RMA, s 60 (1). 63 Resource Management Act 1991: RMA, s 59. 64 These are by definition only regional or district rules in the respective regional or district plans, Resource Management Act 1991: RMA, s 2 (1) and s 43AA. 65 Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18 (CA), p. 23. 66 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Issue 1.2.

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RPS have to give effect to national policy statements, a New Zealand coastal policy statement or a national planning standard.67 The term “give effect to” is considered a strong directive having the meaning of “to implement.”68 Furthermore, the RPS has to state which local authorities are responsible for specifying the objectives, policies, and methods for the control of the use of land to avoid or mitigate natural or other hazards.69 If the RPS does not specify any responsibilities, the regional council retains the primary responsibility.70

4.2.2.5

Regional Plans and Regional Coastal Plans

Preparing a regional plan for the coastal marine area of a region (regional coastal plan) is mandatory.71 Different to other regional plans, the regional coastal plan is subject to approval by the Minister of Conservation,72 who may also require the regional council to amend the plan.73 Regional plans must give effect to national policy statements, a New Zealand coastal policy statement, a national planning standard, and regional policy statements. Furthermore, they must not be inconsistent with other regional plans for the region.74 The term “not be inconsistent” is less strong than “give effect to.”75 Despite the requirement to give effect to higher ranking planning instruments, the Regional Councils have a lot of discretion with regard to the content of the plan.76 In general, regional plans have to state objectives for the region, policies to implement the objectives and rules to implement the policies.77 The latter are referred to as regional rules78 and have the force and effect of a regulation under the RMA to the extent that it is not inconsistent with any such regulation.79 Furthermore, regional plans can include commitments of the regional council with regard to diverse policies and implementation methods. The Waikato Regional Plan, for instance, contains the commitments to address particular erosion issues through a

67

Resource Management Act 1991: RMA, s 62 (3). See very detailed on this: Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [75] to [91], p. 635 ff. 69 Resource Management Act 1991: RMA, s 62 (1) (i) (i). 70 Resource Management Act 1991: RMA, s 62 (2). 71 Resource Management Act 1991: RMA, s 64 (1). 72 Resource Management Act 1991: RMA, sch 1 cl 18 (3). 73 Resource Management Act 1991: RMA, sch 1 cl 19 (1). 74 Resource Management Act 1991: RMA, s 67 (3) and (4). 75 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [76], p. 635. 76 Beattie (2017), p. 36 f. 77 Resource Management Act 1991: RMA, s 67 (1). 78 In contrast to district rules established by district plans. 79 Resource Management Act 1991: RMA, s 68 (2).S 68 (2) of the RMA. 68

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mixture of regulatory and non-regulatory approaches as well as to undertake further investigation concerning erosion and to provide guidance concerning good practice.80 Hence, the importance of regional plans goes beyond mere assistance to the regional councils to carry out their functions to achieve the purpose of the RMA as set out by the Act.81

4.2.2.6

District Plans

Similarly to regional plans, district plans intend to assist the territorial authorities in carrying out their functions to achieve the RMA’s overall purpose.82 District plans are mandatory83 and must give effect to national policy statements, the NZCPS, a national planning standard, a regional policy statement, and regional plans.84 Moreover, they must not be inconsistent with a regional plan for matters specified in s 30 (1) of the RMA,85 for instance with regards to the control of the use of land for the purpose of avoidance or mitigation of natural hazards.86 Similar to regional plans, local authorities must state objectives, policies, and rules for the district in the district plan.87 The district rules have the force and effect of regulations.88 Furthermore, although not mandatory, district plans may state the significant resource management issues for the district.89 An example is an acknowledgment that a district is exposed to coastal hazards and that this risk increases due to climate change and settlements located close to the coastline.90 Usually, district plans contain rules controlling subdivisions and the building of homes and therefore regulate the density and the design of development in the district.91 As a result of these land use regulations, district plans are highly important for coastal adaptation. Since different parts of a district may need different regulations, district plans often map different ‘zones’ or ‘areas’ in which different rules apply. While zones cover separate parts of a district and do not overlap, areas can

80

Waikato Regional Plan, 5.1.3 and 5.1.4. Resource Management Act 1991: RMA, s 63 (1). 82 Resource Management Act 1991: RMA, s 72. 83 Resource Management Act 1991: RMA, s 73 (1). 84 Resource Management Act 1991: RMA, s 75 (3). 85 Resource Management Act 1991: RMA, s 75 (4).S 75 (4) of the RMA. 86 Resource Management Act 1991: RMA, s 30 (1) (c) (iv). 87 Resource Management Act 1991: RMA, s 75 (1).S 75 (1) of the RMA. 88 Resource Management Act 1991: RMA, s 76 (1) and (2). 89 Resource Management Act 1991: RMA, s 75 (2) (a).S 75 (2) (a) of the RMA. 90 Thames-Coromandel Proposed District Plan, Part II Section 10.2.; Hauraki District Plan, Section 3.2.4, 3.3.1 and 3.3.3. 91 Peart (2005), p. 24. 81

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overlay zones as well as other areas.92 Examples are coastal, rural, residential or urban zones or coastal risk, landscape priority or road areas.

4.2.2.7

Interim Summary

Some plans, however, combine different planning instruments, in particular those of unitary authorities. The Tasman Resource Management Plan, for example, is a combined document functioning as Regional Plan, Regional Coastal Plan and District Plan.93 The Auckland Unitary Plan furthermore includes the Regional Policy Statement as well as the aforementioned planning instruments.94 Due to the shared responsibility of regional councils and territorial authorities and the discretion given to them by the RMA, the regulations on coastal hazards are diverse and can vary significantly from one planning instrument to another. This ‘patchwork of regulations’ does not only exist with regard to the different regional and district-wide planning instruments but also within these documents regarding different zones and areas. Consequently, the regulatory framework is highly detailed and very specific and unique in every location. All in all, the described planning instruments are the most important regulatory tools with regard to coastal hazards, coastal settlements and coastal adaptation to climate change since they state and guide the Councils’ actions and determine how coastal hazards and coastal developments are treated in the region and district.

4.2.2.8

Preparation of Policy Statements and Plans

Planning instruments are frequently amended or replaced.95 For example, local authorities must amend their policy statements or plans if a national policy statement requires them to do so to include or give effect to its objective and policies.96 Since the preparation and submission processes take time, policy statements and plans may exist in an operative and proposed version.97 An operative plan may also remain partly in force while other parts are replaced by a new plan.98 Therefore, the RMA often refers to proposed instruments as well.99

92

Tasman Resource Management Plan, 1.6.3. Tasman Resource Management Plan, 1.1 and 1.2. 94 Auckland Unitary Plan, A.1.1. 95 See for the different available processes: Resource Management Act 1991: RMA, sch 1. 96 Resource Management Act 1991: RMA, s 55 (2). 97 See for definitions of operative and proposed plans: Resource Management Act 1991: RMA, ss 43AA and 43AAC (1). 98 Uncertainty about which provisions of an operative plan remain in force was an issue in Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZHC 2933 (HC). 99 Examples are: Resource Management Act 1991: RMA, s 9 (1) (a) and s 12 (1) and (2). 93

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Rules in proposed plans, however, generally only have legal effect after a decision of the local authority on submissions made to it is reached and publicly notified.100 Significant delays for rules to enter into force can be due to the fact that a local authority has up to 2 years time to respond to the submission after notifying the proposed plan.101 To sum up, it is usually necessary to determine which policy statement or plan applies within the region or district and whether rules are already in force. In variance from German law,102 councils are not generally obliged to assess alternatives when preparing a policy statement, a plan, or a change or variation of the latter under s 32 of the RMA. However, an obligation to consider alternatives may arise from the NZCPS. In Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd the Supreme Court held: “If that activity would adversely affect the preservation of natural character in the coastal environment, the decision-maker ought to consider whether the activity does in fact need to occur in the coastal environment. Almost inevitably, this will involve the consideration of alternative locations.”103 Although the case related to Policies 13 (1) (a) and 15 (a) of the NZCPS which set the goal to avoid adverse effects on the natural character of the coastal environment and on outstanding natural features and landscapes, the rationale is arguably applicable to Policy 25 (a) and (b) that aim at avoidance of increasing risk from coastal hazards.

4.2.2.9

Appeal to the Environment Court

With the Environment Court, New Zealand has a specialist court of record that primarily serves as an appellate court for matters under the RMA, like resource consents or regional and district planning documents.104 Among the extensive powers of the Environment Court is the mandate to substitute planning instrument provisions.105 Furthermore, the court can direct an authority to change or amend its policy statement or plan if there is an inconsistency with the higher ranking planning instrument concerning a matter of regional significance or if its policy statement or plan do not give effect to the New Zealand Coastal Policy Statement (NZCPS).106

100

Resource Management Act 1991: RMA, s 86B (1). Resource Management Act 1991: RMA, sch 1 cl. (4) (a). 102 See above: Sect. 3.7.1.4. 103 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), p. 663 at 170. 104 James (2018), p. 460. 105 Resource Management Act 1991: RMA, s 293. 106 Resource Management Act 1991: RMA, s 82. The same applies regarding national planning standards. 101

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The Environment Court’s decisions are final and can only be appealed on questions of law to the High Court.107

4.2.3

Resource Consents

Whereas the planning instruments establish the general framework, resource consents relate to individual activities. Under the RMA activities may require resource consent, for instance for building a house or a coastal protection structure. The RMA distinguishes between several different types of resource consents, the most relevant are land use and subdivision consents and coastal permits.

4.2.3.1 4.2.3.1.1

Types of Resource Consents Land Use Consents

Where land use is restricted by national environmental standards, regional or district rules, contravening land use requires resource consent.108 The definition for ‘use’ includes, for instance, the erection, alteration, demolition or the use of a structure as well as depositing substances in, on, or under land.109 Since the term ‘structure’ refers to man-made facilities fixed to the land, this includes hard protection structures like seawalls,110 while sand nourishment would also be considered a land use since it involves depositing substances. Hence, land use consents are highly relevant for coastal adaptation.

4.2.3.1.2

Subdivision Consents

Closely connected with land use is subdivision. Subdivision is the division of an allotment, i.e., a parcel of land.111 After the subdivision, separate records of title can be obtained.112 Subdividing extensive allotments into smaller lots is economically attractive because smaller lots are usually easier to sell and may better suit the 107

Resource Management Act 1991: RMA, s 295 and 299. High Court decisions can be further on appealed to the Court of Appeal and the Supreme Court, Senior Courts Act 2016, s 56 (1) (a), s 68 and s 69. 108 Resource Management Act 1991: RMA, s 9 (1) to (3). 109 Resource Management Act 1991: RMA, s 2 (1). 110 See for the (affirmatively answered) question if a seawall is a structure: Ohawini Bay Ltd v Whangarei District Council (EnvC), A068/06 on 01.06.2006. The definition of a structure in the district plan was the same as contained in Resource Management Act 1991: RMA, s 2. 111 Resource Management Act 1991: RMA, s 218. 112 Casey (2018), p. 693.

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purposes of acquiring landowners.113 Hence, controlling subdivision is a means to control land use114 and thus controlling development.115 Until the amendment in 2017, subdivision of land was subject to expressive permission, for instance by a subdivision consent. Now the situation is reversed: subdivision is permitted unless it contravenes a national environmental standard or a district rule.116 Arguably this presumption of permissibility signals that subdivision is appropriate in every place at all times, including in areas of high natural hazard risk.117 From the perspective of coastal adaptation returning to the status quo ante would be positive to discourage and control subdivision in at-risk place at the coast.

4.2.3.1.3

Coastal Permits

A coastal permit is necessary for activities in the coastal marine area that would otherwise contravene the restrictions set out by the RMA.118 S 12, for example, regulates the erection, reconstruction, alteration, extension, removal or demolition of any structure fixed in, on, under or over the foreshore or seabed and makes it subject to a resource consent. A separate coastal permit is required for the occupation of the coastal marine area.119 Due to the strict separation of land use consents and coastal permits by the RMA, both types of resource consents are required if a protection structure is located partly within and partly outside the coastal marine area. However, national environmental standards and rules in a (proposed) regional coastal plan can provide otherwise and exempt activities from the necessity of a permit.

4.2.3.2

Required Information

Applications for resource consents have to include information on the activity, in particular, an assessment of the activity against the relevant planning instruments and the activity’s effects on the environment.120 Additional information requirements can be set out by planning instruments, like a requirement for applications for coastal permits concerning structures in the coastal marine area to include

113

Kirkpatrick and Carruthers (2018), p. 272. Casey (2018), p. 693. 115 The fact that subdivision is addressed under a separate section of the RMA (and subsequently by planning instruments) implies its importance in New Zealand law. 116 Resource Management Act 1991: RMA, s 11 (1) (a) and (1A) (a) (ii). 117 For this reason the Minister for the Environment already proposed returning to the previous regulation: Office of the Minister for the Environment, p. 7. 118 Resource Management Act 1991: RMA, s 87 (c). 119 See also: Hume v Auckland Regional Council [2002] 8 ELRNZ 211 (CA), p. 216 at [11–13]. 120 Resource Management Act 1991: RMA, s 88 (1) and (2) and sch 4 cl 2 (1) (g). The relevant planning instruments are those listed in s 104 (1) (b) of the Act. 114

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information about the design of the structure and to which extent it took into account “the potential for natural hazards, in particular sea level rise, and the effects of and on coastal processes.”121 Although this is not an obligation to take into account sea level rise when designing the proposed structure, this requirement provides the Regional Council with information which can then serve as a basis to assess the application for a coastal permit.

4.2.3.3

Decision

Finally, the decision on whether to grant a resource application depends on the stipulations made by s 104 (1) of the RMA which reads as follows: When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to(a) any actual and potential effects on the environment of allowing the activity; and (ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and (b) any relevant provisions of— (i) (ii) (iii) (iv) (v) (vi)

a national environmental standard: other regulations: a national policy statement: a New Zealand coastal policy statement: a regional policy statement or proposed regional policy statement: a plan or proposed plan; and

(c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.

Consequently, resource consents are subject to the planning instruments under the RMA explained above. The objectives, policies and implementation methods set out by the relevant planning instruments, therefore, determine the outcome of an application for a resource consent. Although s 104 of the RMA explicitly refers back to Part 2, this does not override the content of planning instruments since they “give substance” to Part 2 of the RMA122 and a general power to override planning instruments in resource consent decision would be inconsistent with the RMA’s scheme.123

121

Waikato Regional Coastal Plan, Appendix I Structures c). Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), p. 638 at [85 f.]. 123 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316 (CA), at [66–78]. The Court emphasised that matters under Part 2 still have to be considered but can’t generally override planning instruments, thus not inconsistent with the King Salmon decision of the Supreme Court. 122

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Examples In Carter Holt Harvey HBU v Tasman District Council the Environment Court examined an appeal against the declination of resource consents to create residential lots and construct dwellings on them. Among others, the Court found that the proposal did not comply with Objective 5 and Policy 25 of the NZCPS (aiming at avoiding new development in hazard prone areas) and various provisions in the District Plan.124 Hence, the Court upheld the Council’s refusal of the application. Similarly, a resource consent application for a seawall to protect a proposed walk- and cycleway was declined by the consent authority as it was found to be inconsistent with the relevant objectives and policies of the NZCPS and the Auckland Unitary Plan. In particular, the proposal did not satisfy the policy of hard protection structures as a ‘last resort’.125 Since s 104 allows the consent authority to consider any other matter that it considers relevant for its decision, this may include central government guidance documents or reports assessing the coastal hazard risk in the area. Moreover, in case a proposal involves applications for resource consents to more than one consent authority, s 102 (1) of the RMA provides that the consent authorities have to jointly hear and consider the applications. In case more than one resource consent application is made for the same proposal to a consent authority, s 103 of the RMA demands a joint hearing and a decision on the applications together. If more than one resource consent application is made and if there is a direct connection between the activities, the applications are to be bundled and considered together, with the most restrictive consent requirements applying.126 Similar to the project approval procedure under German law, this ensures considering consents related to the same project together. Unlike the project approval, the RMA does not substitute all consents in one permit.

4.2.3.4

Conditions for Resource Consents

Resource consents may be granted under conditions,127 that can be used to reduce the hazard risk and/or to enable future adaptation. Examples include:

124

Carter Holt Harvey HBU v Tasman District Council [2013] NZEnvC 25 [2013] 17 ELRNZ 239 (EnvC), p. 268 at [156–158], p. 271 at [177–178], p. 273 f. at [189–190] and p. 275 at [194–196]. 125 Auckland Council (2017). 126 Urban Auckland v Auckland Council [2015] NZHC 1382 [2015] 18 ELRNZ 792 (HC), p. 801 at [35] and p. 809 at [92 f]. 127 Resource Management Act 1991: RMA, s 108 (1).

4.2 Background Information

• • • •

189

a bond related to a condition to alter or remove a structure128 a requirement that new structures have to be relocatable129 a dune rehabilitation and management plan130 review conditions131

Another type of condition are financial contributions, which can be either a contribution of money, land or a combination of both.132 Financial contributions are only permissible if the plan or proposed plan provides for purpose and level of contribution and the condition is imposed in accordance with those stipulations.133 In this regard, the New Zealand regulation is similar to German law, which also requires a material link of the contribution to the administrative act.134 Although s 108 (1) of the RMA is worded very broadly, there are general limits to the consents authorities’ power to impose conditions. Since October 2017, the newly introduced s 108AA restricts the power to include conditions in a resource consent to those directly connected either to an adverse effect of the activity on the environment or an applicable district or regional rule or a national environmental standard— unless the applicant agrees to the condition or if it related to essential administrative matters for implementing the resource consent. Before this amendment, some restrictions were imposed by case law. Example In Sustainable Ventures v Tasman District Council the Environment Court held that the imposed coast care conditions differed significantly from the proposed and notified rock wall maintenance since it would probably lead to the retreat of the coastline and only guarantee about 30 years of protection instead of the proposed ‘hold the line’ approach and found the condition therefore to be ultra vires. Furthermore, the Court held that the condition would be invalid alone because the applicant would need to apply for a resource consent to carry out the required dune replenishment since the relevant district plan restricted land disturbance.135 However, the consent (continued)

128

Resource Management Act 1991: RMA, s 108 (2) and s 108A (1). This has, for instance, been done by the Thames-Coromandel District Council, see: ThamesCoromandel District Council (2015), p. 32. 130 Aubrey v Whangarei District Council [2017] NZEnvC 44 (EnvC), Annex B. 131 E.g. Waikato Regional Coastal Plan, Policy 12.1.3. Review conditions provide a certain degree of flexibility. 132 Resource Management Act 1991: RMA, s 108 (9). 133 Resource Management Act 1991: RMA, s 108 (2) (a) and (10). This restriction on financial contributions entered into force in April 2018. 134 Stelkens (as of 2018) § 36, paragraph no. 149. 135 Sustainable Ventures Ltd v Tasman District Council [2012] NZEnvC 235 (EnvC), at [39–46]. 129

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authority could have refused the consent instead if it considered the Coast Care Program to be necessary.136 Further conditions are permissible for subdivision consents, for instance, setting requirements for the height of floor levels for any structure on the allotments. Furthermore, conditions can relate to satisfactory protection of any land against erosion, subsidence, slippage, or inundation from any source (regarding land which is part of the subdivision) or if those risks arise or are likely to arise as a result of the subdivision (regarding land which is not part of the subdivision).137 Clearly, these types of conditions can promote coastal adaptation.

4.2.4

Classes of Activities

Whether a resource consent is required depends on the classification of the activity for that the application is made. S 87A of the RMA divides activities into different categories and specifies if resource consents are required. The class of activity does not only determine if a resource consent is necessary but also how difficult it will be to obtain the consents or if no consent can be granted. To which category an activity belongs is determined either by the RMA itself, regulations, plans or proposed plans. When categorizing activities, the plan making authority has to provide for sustainable management as set out in Part II of the RMA.138 All activities, except for the prohibited activities, must comply with the requirements, conditions, and permissions (if any) specified in the RMA or plans. The categorization of activities is, therefore, a management tool of local governments that can encourage, facilitate, discourage, hamper or prohibit certain activities. Hence, the classification of structures or land use is also an instrument for coastal adaptation. Table 4.2 provides an overview of the categories of activities.

4.2.5

National Government Guidance for Local Government

Some guidance for planning for climate change and sea level rise adaptation is provided to the local governments by a guidance manual on coastal hazards and climate change. First published in 2008, the Guidance Manual was replaced by a 136

Sustainable Ventures Ltd v Tasman District Council [2012] NZEnvC 235 (EnvC), at [26]. Resource Management Act 1991: RMA, s 220 (1) (c) and (d). 138 New Zealand Cashflow Control Ltd v Christchurch City Council (EnvC), C 60/03 on 10.05.2003, p. 46 f at [161–164]. In this case the Court concluded that the plan regulations applying seawards of a building line should be more restrictive. 137

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Table 4.2 Categories of activities Category

Resource consent

Example

Permitted activities

No resource consent required

Maintenance, repair, and reconstruction of existing lawful structures and buildings in the coastal marine area if it complies with certain standards/conditions.1

Controlled activities

Resource consent required. Consent must be granted unless an exception applies.

Beach nourishments if less than 10,000 cubic metres are deposited on the foreshore.2

(s 104A)

Conditions can be imposed by the consent authority for matters over which control is reserved. Restricted discretionary activities (s 104C)

Resource consent required. Consent can be declined or granted. The consent authority only considers the matters over which discretion is restricted by a regulation or plan.

All buildings and structures on land in the coastal erosion hazard area not otherwise provided for.3

Conditions can be imposed for matters over which the discretion is restricted.

(s 104B)

Resource consent required. Consent A discretionary activity is not be assumed can be declined or granted. Conditions when Part 3 requires a resource consent can be imposed. but no plan or proposed plan or no relevant rule in such a plan exists.4 For instance, to erect a structure on the foreshore.5

Noncomplying activities

Resource consent required. Consent can only be granted if the requirements of s 104D are met.6

( s 104D)

Conditions can be imposed.

Prohibited activities

No applications for resource consent possible. Consent cannot be granted.

Discretionary activities

1

Hard coastal defences.7

The erection of structures which impound or effectively contain the coastal marine area (excluding flood or erosion control works) in the Firth of Thames RAMSAR site.8

Auckland Unitary Plan, F2 A122 Waikato Regional Coastal Plan, Rule 16.4.20. Waikato Regional Coastal Plan, Rule 16.6.15. 3 Auckland Unitary Plan, Activity E36 A4. 4 Resource Management Act 1991: RMA, s 87B (1) (a). 5 Resource Management Act 1991: RMA, s 12 (1) (b). 6 Resource Management Act 1991: RMA, s 104D requires that the activity does not have adverse effects on the environment that are more than minor or that it is not contrary to the objectives and policies of the relevant plan or proposed plan. The alternatives set out by this provision are referred to as ‘gateways to s 104’, see: High Court (HC) (2017), p. 633 at [16-17] 7 Thames-Coromandel Proposed District Plan, Part IV Section 34 Rule 20. 8 Waikato Regional Coastal Plan, Rule 16.4.13. 2

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new version in 2017. The authoring Ministry for the Environment claims that the 2008 Guidance Manual was widely used by local governments.139 Although the Guidance Manual does not have any legal status, national guidance is taken into account when assessing coastal hazard risk.140 The Guidance Manual, as well as other non-statutory documents, can also play a role when considering a resource consent application141 or serve as a reference point for good practice. Coastal engineers base their design for protection structures on the sea level rise projections of the Manual.142 The 2008 Guidance Manual was also referred to in court proceedings by expert witnesses with regard to future sea level rise.143 In addition to these functions, the Guidance Manual is self-evidently important concerning its primary purpose: providing guidance to the local governments to address coastal hazards. Therefore, the national guidance has an important impact on coastal hazard management and coastal development. Despite the fact that the manual is not binding, it is a key tool for coastal adaptation to rising sea levels. Moreover, the Department of Conservation published a guidance note on the coastal hazards provisions of the NZCPS, which often refer to the Guidance Manual.144

4.3

Risk Assessment and Risk Management

With this general introduction to the RMA and its planning instruments in mind, further analysis focuses on how this framework addresses the particular issue of coastal adaptation, coastal hazards, and coastal protection strategies. This part begins with addressing risk assessment because the degree and extent of coastal hazard risk is the basis for any decision about any coastal protection strategy. A closer look at how risk assessments are conducted and how the legal framework deals with coastal hazard risk is, therefore, a necessary starting point. Risk assessments include the

139

Ministry for the Environment (2017b), p. 11. New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 24. 141 Resource Management Act 1991: RMA, s 104 (1) (c) allows the consent authority to consider “any other matter.” See also: Harker (2016), p. 76. 142 Van Dyke v Tasman District Council [2014] NZEnvC 1 (EnvC), at [52] concerning the design of a rock revetment. 143 Carter Holt Harvey HBU v Tasman District Council [2013] NZEnvC 25 [2013] 17 ELRNZ 239 (EnvC), at [30]. The expert pointed out that the setback distances in the case where based on a sea level rise slightly smaller than recommended by the manual but due to other factors this did not make a difference in the evaluation of coastal erosion risk. In Waterfront Watch v Wellington Regional Council (EnvC), W 43/2009 on 09.06.2009, at [64] one of the experts on climate change induced sea level rise also based his estimations on the Manual. Furthermore, the Manual was referenced with regard to coastal erosion in Weir v Kapiti Coast District Council [2015] NZHC 43 (HC), at [47]. 144 Department of Conservation (2017). 140

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identification, analysis, and evaluation of risk.145 However, it is beyond the scope of this thesis to examine civil defence regulations.146 The following sections examine how coastal hazard risks are treated by the NZCPS, the national Guidance Manual and planning instruments of local governments. Subsequently, the different levels of risk and parameters for determining what ‘acceptable’ risks are, is explored. Finally, the section addressed how risk assessment influences resource consents and thereby individual projects.

4.3.1

Risk in the NZCPS

On a national level, the NZCPS contains the following provision on the identification of coastal hazards: Policy 24 (Identification of Coastal Hazards) (1) Identify areas in the coastal environment that are potentially affected by coastal hazards (including tsunami), giving priority to the identification of areas at high risk of being affected. Hazard risks, over at least 100 years, are to be assessed having regard to: (a) physical drivers and processes that cause coastal change including sea level rise; (b) short-term and long-term natural dynamic fluctuations of erosion and accretion; (c) geomorphological character; (d) the potential for inundation of the coastal environment, taking into account potential sources, inundation pathways and overland extent; (e) cumulative effects of sea level rise, storm surge and wave height under storm conditions; (f) influences that humans have had or are having on the coast; (g) the extent and permanence of built development; and (h) the effects of climate change on: (i) matters (a) to (g) above; (ii) storm frequency, intensity and surges; and (iii) coastal sediment dynamics; taking into account national guidance and the best available information on the likely effects of climate change on the region or district.

145

Standards Australia Ltd: Standards New Zealand (2013), p. 11. Civil Defence Emergency Management Groups manage adverse effects of emergencies and recovery areas, assess and manage hazards and risks, consult and communicate about risks and identify and implement cost-effective risk reduction. Civil Defence Emergency Management Act 2002, s 17.

146

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Hence, Policy 24 of the NZCPS requires the risk identification of areas in the coastal environment that are potentially affected by coastal hazards over a period of at least 100 years (minimum requirement). Sea level rise has explicitly to be taken into account. For the assessment, national guidance, in particular the already mentioned Guidance Manual, as well as the best information on the likely effects of climate change in the relevant region or district, have to be taken into account. With its mandatory wording (“identify”, “are to be assessed”) and focus on a timeframe of at least 100 years, this policy provides a strong directive for long-term planning. Despite the detailed instructions on parameters that should be included in the assessment, the policy does not establish which coastal hazards with what likelihood need to be included. There is no reference to, for instance, 1:20, 1:100 or 1: 200-year events. However, areas at high risk shall have priority. This can be, for instance, where significant new development is proposed in a potential hazard prone area or where the development is proposed on or adjacent to a natural defence.147

4.3.2

Guidance Manual

The Guidance Manual addresses coastal hazard assessment comprehensively, detailedly and instructively. Above all, a transition to adaptive hazard management is advocated.

4.3.2.1

Sea Level Rise as a Dynamic Parameter

While the previous manual recommended a 5-step risk assessment,148 the current guidance highlights the shortcomings of risk assessments based on risk as ‘likelihood x consequence’ since these parameters do not adequately reflect a ‘continuing changing state’ like sea level rise. Since sea level rise is continuous and uncertain with regard to extent and velocity, the likelihood of coastal risks is a dynamic parameter. Events with a 1% annual exceedance probability (AEP),149 for instance, will become more frequent due to the rising sea level.150 To accommodate this, the Manual moves away from a single scenario approach and recommends to include “a range of different hazard magnitudes and likelihoods, sea level rise scenarios and sensitivities to climate change effects on waves and storm surges” in the assessment 147

Department of Conservation (2017), p. 29. Ministry for the Environment (2008), p. 50 ff. The 5 steps were: defining the problem, identifying the relevant coastal hazard and climate change drivers, assessing the likelihood and magnitude of hazards using AEP, assessing the hazard consequences and evaluation of coastal hazard risk. 149 This refers to the probability of exceeding an established threshold within a period of one year and equals a 100-years average return interval. See: Auckland Unitary Plan, Chapter J p. 14. 150 Ministry for the Environment (2017b), p. 178. 148

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as well as the need to make uncertainties and assumptions transparent. This recommendation explicitly refers to equal consideration of different IPCC’s scenarios, including a high and a low emissions scenario.151 The Guidance Manual emphasises that among the different sea level rise scenarios, none can be considered to be the ‘most likely’ due to the various uncertainties involved.152

4.3.2.2

Specific Recommendations

More specifically, regional hazard screening should start with a high sea level rise scenario in order to identify areas that are potentially exposed to coastal inundation and to determine where a more detailed assessment is required. For addressing coastal erosion risks the manual concludes that assessments need to focus around present erosion issues since the hazard occurs more localized.153 In general, the guidance manual’s instructions for risk assessments coincide with the AS/NZS ISO 31000:2009 risk management standard,154 although the assessment steps of the manual are divided into more specific sub-steps.155 In particular, the calculation of 1 per cent AEP events is considered a ‘suitable planning likelihood’ for coastal inundation and erosion assessments since they can, unlike rarer events, usually be calculated with reasonable accuracy. Besides the 1% AEP hazard, at least an extreme scenario or a 1.9 m transitional sea level rise value should be used for the regional hazard screening. The usage of different sea level rise scenarios is also recommended for assessments at district or local level.156

4.3.2.3

Flexible and Adaptive Management

Acknowledging that not all uncertainties about sea level rise can be resolved, the manual recommends taking an approach that identifies options and pathways, emphasizing that uncertainties should not result in missed opportunities nor limit the ability to make adjustments in the future.157 Even near-term decisions158 that have to deal with a smaller uncertainty range should build in a flexible, adaptive management approach that can respond to a faster or slower rate of sea level rise and

151

Ministry for the Environment (2017b), p. 87 ff and 135. The recommended scenarios are: RCP4.5 (moderate emissions), RCP8.5 (high emissions) and RCP2.6 (low emissions). 152 Ministry for the Environment (2017b), p. 101. 153 Ministry for the Environment (2017b), p. 135 and 137. 154 Standards Australia Ltd: Standards New Zealand (2013), Appendix B, p. 32 ff. These include e.g. risk rating matrix, cost-benefit analysis. 155 Ministry for the Environment (2017b), p. 179. 156 Ministry for the Environment (2017b), p. 141 f. 157 Ministry for the Environment (2017b), p. 194. See for adaptation pathways: 3.12.6.2.3. 158 Near-term decisions in this case refer to decisions with a lifetime up to 2040–2060.

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Table 4.3 Transitional sea level rise values Type of development Coastal subdivision, greenfield developments, major new infrastructure Intensification in land use Existing coastal development Non-habitable short-lived assets with a functional need to be at the coast that are either readily adaptable or result in low consequences

Transitional sea level rise value Avoid hazard risk, use of sea level rise over more than 100 years using the highest scenario Adaptation through risk assessments using a range of scenarios and the pathways approach 1.0 m of sea level rise 0.65 of sea level rise

can therefore also deal with sea level rise and increasing impacts of inundation and erosion in the long-term.159 Similarly, the Climate Change Adaptation Technical Working Group recommends avoiding dependency on one option as well as the lock-in of assets and people.160 The Guidance Manual suggests considering different options like maintaining the status quo, retreat, protection of the area or combinations of the aforementioned for any area that has been identified as being at risk.161 With regard to adaptation pathways, the suggested planning approach includes evaluating under which conditions current strategies will cease to be effective and identifying alternative options and different decision pathways. Setting decisions point when a pathway or option needs to switch is part of the adaptive approach and could be based on sea level rise or coastal inundation frequency. When setting the decision points, buffer time should be included for implementing the new pathway.162

4.3.2.4

Transitional Sea Level Rise Values

Since the intended paradigm shift to a long-term adaptive planning approach will take time to be developed, the Guidance Manual additionally recommends that planning instruments should use minimum transitional sea level rise allowances in the meantime. Different transitional responses to sea level rise are assigned to different categories of developments (see Table 4.3).163

159

Ministry for the Environment (2017b), p. 70. Climate Change Adaptation Technical Working Group (2018), p. 31. 161 Ministry for the Environment (2017b), p. 195. 162 Ministry for the Environment (2017b), p. 210 ff. 163 Ministry for the Environment (2017b), p. 107 f. 160

4.3 Risk Assessment and Risk Management

4.3.2.5

197

Summary

As shown by the paragraphs above, the central government guidance on coastal hazards focuses on and promotes change to a long-term and flexible approach164 to adapt to rising sea levels and address coastal hazards. The recommendation and guidance provided acknowledge the various uncertainties in question and is even quite foresighted in incorporating and working with these uncertainties. It is likely that adaptation pathways or similar approaches can provide more certainty through establishing various options than policies that may have to be (more or less) abruptly changed in the future due to changes in climate and sea level. Apart from risk assessments, the document also addresses vulnerability assessments, which draw on the coastal hazard and sea level rise assessments to determine the vulnerabilities of a planning area. This includes assessing the exposure to coastal hazards and climate change impacts and already occurring erosion or coastal defence overtopping.165 All in all, the manual takes a promising approach on dealing with uncertainty and changing risks, however, it is yet to be seen if and how those recommendations are implemented.

4.3.3

Risk Assessment in Local Government Planning Instruments

Moreover, risk assessments as part of the local governments’ responsibility for avoiding and mitigating natural hazards are addressed in planning instruments. In accordance with the hierarchy of planning instruments, regional policy statements can direct district plans to identify areas that are potentially affected by coastal hazards giving priority to the identification of areas at high risk.166 Moreover, regional planning statements can state the Regional Councils’ selfcommitment, like for example the Waikato Regional Council’s affirmation to identify primary hazard zones, where the risk to life, property or the environment from natural hazards is considered to be intolerable.167 Within identified primary hazard zones, the RPS will shift the responsibility to control the use and development of structures to the regional council in order to reduce the risk to an acceptable level.168 164

Climate Change Adaptation Technical Working Group (2018), p. 18. Generally recommends that adaptation action should be flexible. 165 Ministry for the Environment (2017b), p. 174 ff. 166 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 13.2.2 (a). Although the document defines high flood risk zones which need to be identified according to the same provision, there is no definition or indication what areas of high coastal hazard risk are. Similarly: Auckland Unitary Plan, Policy B10.2.2. 167 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 13.1.2. 168 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 13.2.3.

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Since regional councils in contrast to district councils have the power to override existing use rights,169 the shift of responsibility towards the regional council will enable more options, especially a retreat strategy.170 Similarly, although non-statutory, self-commitments concerning risk assessments, e.g. to identify and prioritize coastal hazard risk areas, are sometimes made by local governments.171 Other directives concerning the assessment of natural hazard risk may include taking into account potential effects of climate change and use the best available and up-to-date hazard information and use at least a 100-year timeframe for the evaluation of coastal hazards.172 While some planning instruments only contain a general policy to adopt a precautionary approach when assessing coastal hazard risk,173 others provide more detailed regulations on risk assessments. An example of the latter is the Auckland Unitary Plan, which lists several issues that need to be part of risk assessments for subdivision, use or development proposals on land that is subject to natural hazards. Examples are the type, frequency, and scale of the natural hazard and whether the building or structure is relocatable.174

4.3.4

Levels of Risk

Taking into account the likelihood as well as the consequences, natural hazard risks are often categorized into acceptable, tolerable and intolerable risks.175 These risk levels are created by using a matrix that combines the severity of consequences and the likelihood of a hazard can be used to determine levels of risk, ranging from acceptable risk (unlikely and non-critical consequences) to intolerable risk (high likelihood and severe consequences). The level of risk can, for instance, determine the appropriate activity classification: permitted or controlled for acceptable risks, restricted discretionary or discretionary for tolerable risks and non-complying or prohibited for intolerable risks.176 The term ‘acceptable risk’ or similar risk levels are often used in planning instruments but their definition often remains unclear and needs further guidance, as illustrated by the following quote:

169

Resource Management Act 1991: RMA, s 10 and 10B. See in detail below: 4.9.4. 171 Thames-Coromandel District Council, p. 9. 172 Auckland Unitary Plan, Policy B10.2.2. 173 Waikato Regional Coastal Plan, Policy 8.1.2. This also applies to the assessment of potential risks for coastal permit applications. 174 Auckland Unitary Plan, Policy E36.3 (1) and (3). Furthermore, land that may be subject to natural hazards is to be identified taking into account the likely effects of climate change including coastal hazards like coastal erosion or coastal storm inundation. 175 See for instance: Thames-Coromandel Proposed District Plan, Part II Section 10. 176 Saunders et al. (2013), p. 34 ff. 170

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Table 4.4 Levels of risk (Waikato Regional Policy Statement) Level of risk Intolerable risk Tolerable risk Acceptable risk

Explanation Unjustifiable risk, risk reduction essential

Not negligible risk that a community can live with to secure net benefits which should be kept under review and reduce if possible Minor risk, further risk reduction would be disproportionate

Example Residential housing being developed in a primary hazard zone No example given

Residential housing being developed beyond coastal setbacks

Many land use planning documents throughout the country refer to ‘acceptable risk’. However, these documents do not define what acceptable risk is, or for whom the risk has to be acceptable (i.e., the developers, council, future occupants, or the community). This has resulted in developments being approved in areas susceptible to natural hazards, as the applicant or the developer has been willing to accept the risk associated with the development.177

The Waikato Regional Policy Statement defines the levels of risk as illustrated in Table 4.4.178

4.3.4.1

Point of Reference

Despite the definition and examples given, the terms remain unclear to a certain extent. For instance, the point of reference for the perception of risk levels is not established; in other words: it is not stipulated whose subjective judgment of acceptable, tolerable or intolerable is the relevant one. While for one person a level of risk might appear acceptable, it may be perceived as intolerable by others. Some indication is made by referring to the tolerable risk within the community, not the individual land user. However, in practice, it may be hard to determine the acceptable level for the community if no decision is made by the district councils as representatives of the community. This is also reflected by the expectation that the district plans will “further define what is acceptable and tolerable risk in their community and for particular land uses.”179 This expectation, however, may not always be fulfilled. An exception to this is the approach taken by the Bay of Plenty Regional Council that conducted a public engagement process to determine the acceptability of risk.180

177

Saunders et al. (2013), p. 13. The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, p. G-7. 179 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, p. 133. 180 Kilvington and Saunders (2015). 178

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4 Legal Framework for Coastal Adaptation to Rising Sea Levels in New Zealand

Examples

Thames-Coromandel District Plan is an example of a planning instrument that determines risk more thoroughly. Using a risk matrix, the district plan defines the risk levels according to the likelihood and the severity of the consequences. For determining the latter, the district plan sets out a table that provides parameters for the severity, e.g. number of dead or injured people or the percentage of buildings with compromised functionality.181 The Auckland Unitary Plan takes a different approach: it does not assign risk levels but contains provisions that generally aim to avoid increases in natural hazard risks and to reduce risk where practicable.182 Since this approach relates to an already existing risk, no evaluation of the qualification of the risk that will always be subjective to some extent is necessary. However, such an approach is likely to preserve the status quo and is inadequate to address areas and activities that are already subject to intolerable risks. Particularly the wording “where practicable” weakens the provision. At least where sufficiently precise instructions exist, the Thames-Coromandel District Plan’s approach seems preferable to the one taken by the Auckland Council.

4.3.4.3

Decisions on Acceptable Risk by the Environment Court

However, in some cases, it might well be the courts that have the last say about what is an ‘acceptable risk.’ One example, that at the same time illustrates how hazard risk can influence the outcome of a resource consent application, is the case of Hemi v Waikato District Council. The Waikato District Council declined a resource consent for a dwelling arguing that the risk of coastal inundation would be unacceptable.183 The Environment Court held after consulting several experts, that the inundation risk of the proposed dwelling would be low to moderate and that even if the most severe sea level rise scenario occurred that the appellant could still use the proposed building for several decades and that the risk would, therefore, be acceptable.184 In a different case, Mahanga v Hawke’s Bay Regional Council, the Environment Court approved a proposal to erect dwellings on land prone to coastal hazards despite its inconsistency with the objectives of the relevant regional policy statement and proposed regional coastal plan. The provisions aimed at the avoidance of new development in these areas. The Court argued that since the owners accepted the risk and because of the mitigating consent conditions requiring removal as soon as the

181

Thames-Coromandel Proposed District Plan, Part II Section 10.1.2. Auckland Unitary Plan, e.g. E36.2. 183 Hemi v Waikato District Council [2010] NZEnvC 216 (EnvC), at [3]. 184 Hemi v Waikato District Council [2010] NZEnvC 216 (EnvC), at [58 ff]. 182

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201

seaward toe of the foredune is only 7 m away from the house, the development would not be inappropriate and the level of risk acceptable.185 Even though in this case the planning instruments’ intention to avoid new developments was not effective, the exception was only possible due to the strict risk mitigation conditions; thus still resulting in adaptation.

4.3.5

Risk Assessment and Resource Consents

The role of risk assessments for resource consents has been illustrated by the cases in the paragraph above. Generally, planning instruments can contain explicit requirements for risk assessments. An example of an explicit requirement is the (compulsory) requirement to submit a hazard risk assessment report with the resource consent application if the proposed subdivision, use or developments are situated on land that may be subject to coastal erosion or inundation.186 This natural hazard risk assessment of adverse effects on people, property, infrastructure and the environment for subdivision, use, and development can be required to take into account the likely long-term effects of climate change.187 In other cases, the mere exposure to risk is already a crucial factor whether the consent authority grants or declines a consent.

4.3.6

Summary

The NZCPS establishes some framework conditions concerning parameters for risk assessment and the Guidance Manual comprehensively addresses this issue. The Guidance Manual’s recommendation to use a flexible, robust approach may help to overcome current uncertainties concerning levels of risk and risk reduction as currently used in planning instruments.

4.4

Funding

The funding of coastal adaptation strategies is an important factor for effective implementation. Adaptation action can be funded by the central government, local governments, and private landowners or by a combination of the aforementioned.

185

Mahanga E Tu v Hawkes Bay Regional Council [2014] NZEnvC 83 [2014] 18 ELRNZ 419 (EnvC), p. 432 f. at [53–56]. 186 Auckland Unitary Plan, E.36.9 (1) and (2). The assessment should consider the effects of climate change over at least a 100 year timeframe. 187 Auckland Unitary Plan, Objective E36.2 (1).

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For example, in the case of Middlemiss v Canterbury Regional Council, the agreement was reached that an enhancement of a coastal bank up to 4.5 m should be funded in equal shares between two landowners and the competent regional council. Any enhancement above that height should be funded entirely by one of the landowners.188 Most important is the local government funding due to their responsibility to avoid and mitigate natural hazards. Funding for local government projects, e.g. for coastal protection structures, is contained in long-term and annual plans of the local governments.189 The purpose of both plans is, inter alia, to provide integrated decision making and accountability, long-term plans in addition aim to provide a long-term focus for decisions.190

4.4.1

Sources of Revenue of Local Government

Local governments can access several different funds established by the central government, e.g. the freshwater improvement fund or the Natural Disaster Fund.191 However, there is no particular fund for coastal or natural hazard protection, climate change adaptation or managed retreat. In general, fees and capital investment income contribute to a council’s financial budget which can then be allocated in the long-term and annual plans.192 Another source of revenue for local governments are general and targeted rates. While general rates apply to every rating unit in the jurisdiction, targeted rates are set for particular activities.193 Both types can also be mixed to fund projects. For instance, flood protection, river management, land drainage and soil conservation in the Piako River is financed mostly (85%) through targeted rates based on benefit classification with a minor contribution of a general rate (15%).194

188

Middlemiss v Canterbury Regional Council (EnvC), C97/2007 on 29.07.2007, Annex A. Both plans are compulsory according to Local Government Act 2002: LGA, s 93 (1) and 95 (1). 190 Local Government Act 2002: LGA, s 93 (6) and 95 (5) (c) and (d). 191 See below: 4.10.2.2.1. 192 See for an example of a funding mix: Waikato Regional Council, p. 43. 193 Local authorities are empowered to levy these rates by Local Government (Rating) Act 2002, s 13 (1) and s 16 (1). 194 Waikato Regional Council ‘Targeted rates’. 189

4.4 Funding

4.4.2

203

Long-Term Plans

Long-term plans cover a period of at least 10 years195 but are in force for only 3 years.196 The purposes of the long-term plans are set out by s 93 (6). This longterm focus of at least 10 years is different to the long-term focus of 100 years under the NZCPS. A mandatory part of a long-term plan is an infrastructure strategy for a period of minimum 30 years and taking into account the need to provide for resilience to natural hazard risks.197 The probably most important function of the long-term plan is the assignment of expenditures to annual plans covering at least the next 10 years. Example: Waikato Regional Council 2012-2022 Long-Term Plan With regard to flood control and protection works, the Long-term plan for the Waikato Region establishes the revenues and expenditures assigned to each annual plan. For the annual plan 2017/2018, the plan assigns a revenue of 21,104 NZD and an expenditure of 20,245 NZD.198

4.4.3

Annual Plans

In the annual plan, the local authority must define the proposed budget and funding impact statement for the financial year.199 Therefore, any proposed public expenditure concerning coastal management and adaptation needs to be included in the annual plan.200 Example: Thames-Coromandel Annual Plan 2017/2018 The Plan determines the funding of coastal and hazard management e.g. partly through a general rate and a uniform annual general charge which are imposed on every rating unit within the district as well as rates for local works and services that apply only to rating units in the relevant community area.201 Moreover, the amount of money spend on individual activities is established by the annual plan. For a flood protection wall in Cooks Beach, the plan allocates 270,000 NZD and for coastal erosion in Buffalo Beach 549,000 NZD.202

195

Local Government Act 2002: LGA, s 93 (7) (a). Local Government Act 2002: LGA, s 93 (3). 197 Local Government Act 2002: LGA, s 101B (1) and (3) (e). 198 Waikato Regional Council, p. 152. This is about 11,719 € and 11,242 € respectively. 199 Local Government Act 2002: LGA, s 95 (5) (a). 200 Peart (2005), p. 29. 201 Annual Plan 2017/2018, p. 45 ff. 202 Annual Plan 2017/2018, p. 64. This is about 149,931 € and 304,858 € respectively. 196

204

4.4.4

4 Legal Framework for Coastal Adaptation to Rising Sea Levels in New Zealand

Relationship Between Long-Term and Annual Plans and the RMA Planning Instruments

Some consistency between the RMA’s planning instruments and the long-term and annual plans prepared under the Local Government Act 2002 is ensured by general provisions. Local governments must have regard to management plans and strategies prepared under other acts when preparing or changing a planning instrument under the RMA.203 Vice versa, when preparing long-term or annual plans, local authorities only need to identify decisions that are ‘significantly inconsistent’ with its other policies or plans, including regional policy statements, regional and district plans.204

4.5

Land Use Planning

Land use planning is a “tool for reducing, or even eliminating, risk related to natural hazards.”205 In New Zealand, coastal adaptation is mainly governed by land use regulation. As local governments are responsible for land use regulation as well as for avoiding and mitigating natural hazards, it is not surprising that they pursue the latter to a great extent by making use of their land use regulation powers. Through the restriction by s 9 of the RMA, land use is subject to regulations by planning instruments and resource consents—both tools of spatial planning. As matters of national importance, land use planning and regulation need to recognise and provide for the avoidance and mitigation of natural hazards and have particular regard to the effects of climate change.206 The basics of planning instruments, which stipulate general requirements for land use, for instance by classifying land use related activities, and resource consents as the administrative act that allows individual projects, have been introduced above.207 District plans in particular are an important instrument for land use planning as they may contain provisions relating to subdivision, use, and development, for instance with regard to avoiding development in hazard prone areas.208 In the context of coastal adaptation, land use planning mainly aims at the avoidance of coastal hazard risks, for example through regulations that restrict or prohibit structures, subdivision or development in the coastal environment. However, land use regulation is not limited to avoidance but relevant for all coastal 203

This is required by Resource Management Act 1991: RMA, s 61 (2) (a) (i), s 66 (2) (c) (i) and s 74 (2) (b) (i). The obligations is limited to the extent that the content has a bearing on the resource management issues of the jurisdiction. 204 Local Government Act 2002: LGA, s 80 (1). See further: Edmonds (2018), p. 479. 205 Saunders et al. (2013), p. 1. 206 Resource Management Act 1991: RMA, s 6. See above for s 6 and s 7: 4.2.1. 207 See above: 4.2.2. 208 Hauraki District Plan, 5.1.2. Objective 4 (a) (iv).

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205

adaptation strategies. The following sections intend to given an overview of the variety and different aspects of spatial planning provisions. In order to ensure readability, although provisions may sometimes overlap they are divided into subtopics for the reader’s convenience: starting with general planning directives, the section afterwards focuses on provisions on natural hazards as well as the avoidance of development. Consecutively, relocatable structures are examined, followed by a brief digression on tsunami risk, before considering the role of the Building Act 2002 and information instruments like the land information memoranda.

4.5.1

Planning Directives

Higher-ranking planning instruments like the NZCPS can give general directives that need to be implemented by the lower-ranking instruments like district plans. The outcome of coastal hazard risk assessments, for instance, impacts land use planning through Policy 25 of the NZCPS. This provision gives directives for subdivision, use, and development of areas that are potentially identified to be affected by coastal hazards over at least the next 100 years and in particular that increasing the risk shall be avoided. However, this minimum timeframe may not be sufficient for land use changes or infrastructure that influence development and increase the value of assets for several generations.209 Regional policy statements as higher-ranking planning instruments can also give directives on the planning approach for regional and district plans. For instance, recommending to adopt at least a 100-year planning timeframe with regard to coastal erosion and a precautionary approach towards activities whose effects are uncertain or unknown but potentially either significant or irreversible.210 Other examples related to identifying flooding and coastal erosion as an issue and discouraging urban development from areas prone to natural hazards.211 Particular directions for spatial planning can include the directive to manage new development in a way that acceptable risk levels are not exceeded and that intolerable risks are reduced.212 Planning directives can encourage and impact coastal adaptation through adequate land use regulation on the national or regional level. Although not a planning directive, plan provisions are required to be clear and unambiguous. A provision, for instance, that is worded “land which may be subject to coastal hazards” was found to create uncertainty whether a resource consent was

209

Department of Conservation (2017), p. 20. The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 4.1.9 b) and c). 211 Tasman Regional Policy Statement, Issue 5.2. 212 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 13.1.1. 210

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necessary, in particular since the provision did not provide guidance on the probability required.213

4.5.2

Natural Hazards

Some plan provisions directly deal with natural hazards and for instance, seek to ensure that subdivision, use or development do not exacerbate natural hazards214 or that these activities shall only be permitted where the adverse effects from natural hazards do not increase and are reduced where practicable, again taking into account the likely long-term effects of climate change.215 Other provisions may include implementation approaches, for example by requiring that subdivision, use and development subject to coastal hazards avoid or mitigate adverse effects from coastal storm inundation, coastal erosion, and sea level rise of 1 m through location, design, and management.216

4.5.3

Avoiding Development

Other provisions relate to the avoidance of new development and intensification within existing developments in existing or future hazard prone areas.217 Avoiding placement of assets in hazardous or potentially hazard-prone areas is important to reduce the consequences of coastal hazards. Furthermore, this prevents increasing costs for retreat.218

4.5.3.1

New Development and Natural Hazards

An important part for risk avoidance is restricting new developments in areas prone to coastal hazards. The need for this is, for instance, reflected in the Tasman Regional Policy Statement, which emphasises that coastal erosion caused by sea level rise and current erosion trends “strongly suggest the need to avoid further development in a

213

Man O’War Farm Ltd v Auckland Council [2017] NZHC 1349 (HC), at [13 and 14]. Tasman Resource Management Plan, Policy 23.1.3.3. 215 Auckland Unitary Plan, Objective E36.2 (2). In addition, Auckland Unitary Plan, Policy E36.3 (4) establishes that in areas subject to natural hazards, subdivision, use and development is to be controlled to prevent increases of the natural hazard, vulnerability of activities or risks to human lives and adjacent properties and to achieve a reduction of these effects where possible. 216 Auckland Unitary Plan, Policy E36.3 (5). 217 Ministry for the Environment (2017b), p. 195 recommends this as the best adaptation option. 218 Department of Conservation (2017), p. 42. 214

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wide buffer area of vulnerable coastal land” and that existing protection structures might be overwhelmed or outflanked.219 The NZCPS also advocates managing coastal hazard risks by locating new developments away from hazard prone areas220 and preventing the sprawling of settlements within the coastal environment through encouraging consolidation of existing settlements.221 Hence, new subdivision, use, and development shall often avoid coastal hazard risk to some degree,222 in certain areas223 or to avoid at least the creation of new risks and thus make communities more resilient to natural hazards as well as to climate change.224 Policies to avoid new subdivision, use and development may be tied to the dependence or future dependence on new defences to make the natural hazard risk tolerable.225 In other policies avoidance of new subdivision, use or development is limited to where it detriments the ability of natural systems like beaches or dunes to protect existing subdivision, use or development from natural hazards.226 Classifying new developments as prohibited activities can also be a strong tool, in particular where new dwellings or additions to existing dwellings are categorized as a prohibited activity.227 In Southern Environmental Association v Wellington City Council, the Environment Court denied a proposed rezoning of land from rural to residential, among other concerns, with the argument that the road on which additional houses and residents would depend on would already be subject to erosion and could require major 219

Tasman Regional Policy Statement, Issue 11.3. New Zealand Coastal Policy Statement 2010: NZCPS 2010, Objective 5. See above: 4.2.2.3. 221 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 6 (1) (c). A similar provision is contained in Auckland Unitary Plan, Policy B8.3.2 (2). 222 Auckland Unitary Plan, Objective B2.6.1 (1) (c). The provision concerns growth and development in rural and coastal towns and villages that shall avoid areas with significant natural hazard risk. Similarly, Tasman Regional Policy Statement, Objective 5.2 and Policy 5.2 define the objective and state the Council’s intent to avoid new development in hazard prone areas unless adequate mitigation measures are provided. Moreover, the objective and policy also address the issues of identifying special landscapes and natural areas in order to protect them from residential development, Tasman Regional Policy Statement, Issue 5.5. 223 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 13.3.1 (a) The policy states that local authorities should where possible address potential effects of high impact but low probability natural hazard events through avoiding new development in high hazard risk areas. Tasman Resource Management Plan, Objective 6.2.2, Policy 6.2.3.4 and Objective 13.1.2 which address avoiding urban growth and development in hazard prone areas. 224 Auckland Unitary Plan, Objective B10.2.1 (1) and (3). Similar provisions are Auckland Unitary Plan, Policies B2.2.2 and B2.6.2 which require urban growth to avoid locations with significant natural hazard risk completely and that the expansion of existing or the creation of new rural and coastal towns and villages avoids locations with significant hazard risks if these risks cannot be adequately remedied or mitigated. 225 Thames-Coromandel Proposed District Plan, Part II Section 10 Policy 4c. setting a timeframe for risk within the next 100 years. 226 Tasman Resource Management Plan, Policies 13.1.3.16 and 23.1.3.8. 227 Thames-Coromandel Proposed District Plan, Section 34.11 Rule 15. The rule applies to a number of frontage properties specified in the rule. 220

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protection works. The Court held that since natural coastal events are likely to exacerbate in the future, further residential development would leave no options for future sustainable management.228

4.5.3.2 4.5.3.2.1

Inappropriate Development Relevant Provisions

Another tool to prevent development in coastal areas are regulations on inappropriate development that can also relate to other issues than natural hazards, in particular the natural character of the coastal environment. The protection of the natural character of the coastal environment and outstanding features or landscapes from inappropriate subdivision, use and development are matters of national importance.229 The NZCPS reinforces these requirements with similar provisions. For instance, the NZCPS stipulates that areas within the coastal environment where subdivision, use, and development is inappropriate are identified and protected by regional policy statements and plans.230 It furthermore generally requires the protection of the natural character of the coastal environment from inappropriate subdivision, use, and development.231 One way to protect the natural character from inappropriate subdivision and adverse effects on its natural character is to avoid new settlement areas and direct the development of existing key settlements landwards and thus containing subdivision, use, and development within the coastal environment.232

4.5.3.2.2

The Meaning of ‘Inappropriate’

Chiefly, it is important how to interpret the term ‘(in)appropriate subdivision, use, and development’. In New Zealand Rail Ltd v Marlborough District Council the High Court held that “a question of inappropriateness [is] to be decided on a case by case basis in the circumstances of the particular case [. . .] from the point of view

228

Southern Environmental Association v Wellington City Council [2010] NZEnvC 114 (EnvC), at [124 f]. 229 Resource Management Act 1991: RMA, s 6 (a) and (b). 230 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 7 (1) (b). 231 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 13 (1). The standard of protection is higher in case the coastal environment has an outstanding natural character (avoid all adverse effects not only significant ones). Policy 15 contains a similar provision with regard to the protection of natural features and natural landscapes. 232 Tasman Resource Management Plan, Issue 6.4.1, Objective 6.4.2 and Policies 6.4.3.1 and 6.4.3.2.

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of the preservation of natural character in order to achieve the promotion of sustainable management as a matter of national importance.”233 Consequently, the interpretation depends on the local context. When taking this case-by-caseapproach, the meaning of ‘appropriate’ or ‘inappropriate’ depends on the context, especially considering what the provision seeks to protect.234 In Gallagher v Tasman District Council the Environment Court found that the applicants’ property would not be “an appropriate place for development due to the extent to which it increases exposure to coastal hazard risk.”235 Thus, hazard risk can play a role when defining the appropriateness of subdivision, use, and development.

4.5.3.2.3

Inappropriateness and Natural Hazards

The connection between hazard risk and appropriateness of land use is also reflected by the approach of planning instruments on inappropriate subdivision, use, and development. In particular, the context in which they address this issue can help with its interpretation within the planning instrument (noscitur a sociis). One example is a provision that sets as an objective that subdivision, use, and development in the coastal environment are located in appropriate places and that in areas potentially affected by coastal hazards, the risk of social, environmental and economic harm does not increase.236 Another example is a provision that the assessment of the appropriateness includes the likely need for coastal protection works and to avoid sites that are likely to require such protection works if practicable.237 Although many provisions on avoiding inappropriate development pursue other objectives, they can still serve for coastal adaptation by avoiding further development along the coast.

4.5.4

Relocatable Buildings and Structures

Apart from prohibiting development, planning instruments can reduce risk through provisions that require or at least encourage buildings and structure to be relocatable.238 Privileging relocatable buildings through classifying their construction or

233

New Zealand Rail Ltd v Marlborough District Council [1993] NZRMA 70 (HC), p. 85. Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), at [100] and [101]. 235 Gallagher v Tasman District Council [2014] NZEnvC 245 (EnvC), at [161]. 236 Auckland Unitary Plan, Objective B8.3 (1) and (7). 237 Tasman Resource Management Plan, Policy 13.1.3.2 and Objective 23.1.2 and Policy 23.1.3.1. 238 Auckland Unitary Plan, Policy B10.1.1 (9) (d). 234

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alteration either as a permitted activity or as a restricted discretionary activity239 can also promote their use. This seems most effective if the construction or alteration of a dwelling is categorized as a non-complying activity at the same time.240 The ability to relocate a building or a structure can also be a consideration when assessing resource consent applications.241 However, relocatable building requirements are designed as a strategy to be carried out in the future (enabling managed retreat). Therefore, clear communication of the implications for present and future owners as well as the community is required on the one hand and on the other hand, the relocation needs to be secured by e.g. bonds covering the relocation cost or consent notices on titles.242 To this end, a consent condition referring to the removal can demand a covenant in favour of the Council to bind all future owners to these conditions and a bond to ensure the removal.243 In contrast to the limited scope of application of temporary building permits in Germany,244 temporary land use like relocation requirements is not restricted to exceptional cases.

4.5.5

Tsunami Risk

A point to address separately is tsunami risk. Parts of New Zealand’s coast is also at risk from tsunamis, which are unpredictable isolated events245 that can cause devastating damage (high impact, low probability).246 Tsunami risk is among the coastal hazards to be identified under the NZCPS and the potential effects of tsunamis, as well as their avoidance or mitigation, are to be considered in those areas.247

239

Tasman Resource Management Plan, Rules 18.9.2.1 and 18.9.2.2. Permitted activity status applies to non-habitable structures, restricted discretionary status to habitable structure that are not dwellings. 240 Tasman Resource Management Plan, Rule 18.9.2.4. 241 Auckland Unitary Plan, E36.8 Activities in the coastal erosion hazard area (1) (d) and Activities in the coastal storm inundation 1% annual exceedance probability (AEP) area (2) (d). This equals a 100 year average return period. (Restricted discretionary activities in identified hazard areas). 242 Ministry for the Environment (2017b), p. 36. 243 Mahanga E Tu Inc v Hawkes Bay Regional Council [2014] NZEnvC 248 (EnvC). 244 See above: Sect. 3.7.4. 245 Tasman Resource Management Plan, p. 23/1. 246 Auckland Unitary Plan, E36.1. 247 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policies 24 and 25.

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Tsunami risk can be avoided or mitigated by limiting new development in highrisk hazard areas248 or by requiring or recommending vertical evacuation areas for facilities.249 Apart from areas to evacuate to, evacuation zones250 (areas that need to be left in case of an event) need to be assigned and be made public e.g. through information boards at the beach. Whether there will be enough time for people to evacuate to a safe location can play a role in deciding on a resource consent application for a development.251 In addition, raising public awareness among property owners located in tsunami evacuation zones is important. This can happen by putting information on Land Information Memorandums of those properties.252 Emergency warning systems through sirens can also ensure evacuation in case of a tsunami event.253

4.5.6

Building Act 2004

4.5.6.1

General

In addition to resource consents, a structure may require a building consent under the Building Act 2004. While the RMA focus is on the sustainable management of resources and takes a broad environmental perspective, the Building Act 2004s purpose is the integrity and safety of buildings.254 Due to this focus, a building consent cannot be refused if land and building are protected through adequate provisions even if they are located in a hazard prone area.255 Hence, both Acts may conflict, for instance, where existing hard protection structures meet the requirements of the Building Act for new buildings but conflict with the management of development in coastal areas addressed by the RMA.256 ‘Building’ within the meaning of the Building Act 2004 is defined as “a temporary or permanent movable or immovable structure”257 and includes coastal pro-

248

The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 6.2 (j) and Implementation Method 13.3.1. (a). 249 Thames-Coromandel Proposed District Plan, Section 10.3 Policy 3b for facilities for children, aged care facilities and hospitals in an area at tsunami risk. 250 Ministry of Civil Defence & Emergency Management (2016). 251 Save the Point Inc v Wellington City Council (EnvC), W 82/07 on 20.09.2007, at [128]-[144]. 252 Ministry of Civil Defence & Emergency Management (2016), p. 19. 253 Whitianga Tsunami Working Group (2012), p. 5 f. 254 Bay of Plenty Regional Council v Western Bay of Plenty District Council [2002] 8 ELRNZ 97 (EnvC), p. 126 at [81]. 255 Ministry for the Environment (2017b), p. 40. 256 Ministry for the Environment (2017b), p. 41. 257 Building Act 2004, s 8 (1) (a).

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tection structures like seawalls.258 Due to the scope of the jurisdiction,259 building works in the coastal marine area also require a building consent from the competent building consent authority, in most cases a district council.260 Any building work261 must be carried out in accordance with the building consent.262 With regard to granting a building consent, the building consents authority does not have discretion since s 49 (1) of the Building Act 2004 establishes that a building consent “must” be granted by the competent authority if the building work complies with the provisions of the building code.

4.5.6.2

Provisions Concerning Natural Hazards

Refusing or imposing adequate conditions in a building consent can also avoid development in at risk areas and encourage adaptation. With regard to land subject to natural hazards, s 71 (1) of the Building Act 2004 regulates a mandatory refusal of building consents unless an exemption applies.263 The relevant provision reads as follows: s 71 Building on Land Subject to Natural Hazards (1) A building consent authority must refuse to grant a building consent for construction of a building, or major alterations to a building, if(a) the land on which the building work is to be carried out is subject or is likely to be subject to 1 or more natural hazards; or (b) the building work is likely to accelerate, worsen, or result in a natural hazard on that land or any other property. (2) Subsection (1) does not apply if the building consent authority is satisfied that adequate provision has been or will be made to(a) protect the land, building work, or other property referred to in that subsection from the natural hazard or hazards; or (b) restore any damage to that land or other property as a result of the building work.

258

See Determination 2011/115. (A determination is a legally binding ruling by the Ministry of Business, Innovation and Employment, see: https://www.building.govt.nz/resolving-problems/res olution-options/determinations/). 259 Building Act 2004, s 212 (1). 260 Ministry of Building, Innovation & Employment, Building Consent Authorities (BCA) Register. 261 A ‘building work’ is defined by Building Act 2004, s 7 and includes any work for or in connection with the construction, alteration, demolition or removal of a building. 262 Building Act 2004, s 40 (1). 263 The definition of ‘natural hazard’ is contained in s 71 (3) and includes coastal erosion and inundation by storm surges and tidal effects.

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Although s 71 (2) (a) uses the word ‘or’, the provision is interpreted to be meant as ‘and’ thus requiring that land, as well as the building work, is protected.264 The Hastings District Council, for instance, refused an application for a building consent for the construction of a house on land subject to coastal erosion and inundation since it found the proposal did not comply with the relevant provisions of the Building Act.265 While s 71 (2) of the Building Act 2004 entails some discretion of the building consent authority (‘is satisfied’), a mandatory exception from the refusal is regulated by s 72 of the aforementioned Act. According to that provision, the building consent authority must grant a building consent if it considers that building work, will not accelerate, worsen, or result in a natural hazard on the land where the work is to be carried out or any other property, and if it is reasonable to grant either a waiver or modification of the building code in respect of the natural hazard concerned. If, however, a building consent is issued under the exception of s 72 Building Act 2004, a notification to the Registrar-General of Land needs to be made who will then record the information on the natural hazard concerned on the record of title to the land.266 This does not only provide information and warning to property owners and potential buyers but excludes the liability of the building consent authority if the building for which the building consent was issued is affected by a natural hazard identified on the property title.267 Overall, the consent authorities have less discretion than when granting resource consents but the Building Act 2004 still provides some measures to limit coastal hazard risk.

4.5.7

Information Instruments Connected to Land Use

Another way to avoid development in at-risk areas that should not be neglected is providing necessary information to prospective residents.

264

Logan v Auckland City Council (CA), CA 243/99 on 09.03.2000, at [27–31]. The case dealt with a very similar and as far as the case is concerned identical provision of the Building Act 1991. See also Determination 2017/048. 265 This was discussed and confirmed by a determination by the chief executive according to s 188, Determination 2007/110, especially p.1 cl. 1.3 and p. 43 cl 8.1. See also: Determination 2015/ 018 concerning a case of refusal because of coastal and river inundation risk. 266 Building Act 2004, s 73 and 74 (1) (b). Up to November 2018 the instrument was called ‘certificate of title’. 267 Building Act 2004, s 392 (2) and (3).

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4.5.7.1

4 Legal Framework for Coastal Adaptation to Rising Sea Levels in New Zealand

Land Information Memoranda

Land information memoranda are a tool to raise awareness to potential natural hazards for risk and communication, which can discourage new developments in hazard prone areas.268 They include information about special features or characteristics of the land concerned, expressively including information about potential erosion and inundation, which is known by the territorial authority but not apparent from the district plan.269 Land information memoranda have to include knowledge within the Council of potential erosion, leaving no discretion on this issue.270 Since land information memoranda can be updated more easily, they can include the most recent information concerning natural hazards that are relevant to the property.271 A land information memorandum can be obtained by applying to the competent territorial authority.272 Although it is in principle a self-evident rule that the councils cannot disclose information they do not have, the question arises whether there are cases where the council should gather information about hazard prone land. Since rising sea levels are considered as common knowledge, this could mean that councils at the coast might have a duty to investigate sea level rise and its effects on their territory. On the other hand, if sea level rise is self-evident that could mean that it does not require a declaratory statement from any authority. In a case about contaminated land, the High Court held that local authorities do not “owe a duty to the world at large to simply keep comprehensive records.”273 Applying this standard to rising sea levels and exacerbated coastal hazards would mean that the Councils do not need to undertake exhaustive research on sea level rise. However, it is uncertain how this would be treated by the courts.

4.5.7.2

Project Information Memoranda

Another instrument to provide information about natural hazards under the Building Act 2004 is the project information memorandum. The building consent authority has to apply for such a memorandum to the territorial authority when receiving an application and that the authority has to provide a copy of the received project

268

Saunders and Mathieson (2016), p. 5. Local Government Official Information and Meetings Act 1987: LGOIMA, s 44A. 270 Weir v Kapiti Coast District Council [2013] NZHC 3522 [2013] 15 NZCPR 28 (HC), p. 42 at [64–66]. The Court also emphasised that the wording “potential erosion” does not mean that the erosion need to be probable or even inevitable. This interim judgment was confirmed by: Weir v Kapiti Coast District Council [2015] NZHC 43 (HC), at [11]. 271 Saunders and Mathieson (2016), p. 55. 272 Local Government Official Information and Meetings Act 1987: LGOIMA, s 44A (1). 273 Monticello Holdings Ltd v Selwyn District Council [2015] NZHC 1674 [2015] 2 NZLR 148 (HC), at [93]. 269

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information memorandum to the owner.274 The compulsory content includes potential natural hazards that are likely to be relevant for the design and construction or alteration of the building and that is known to the territorial authority but not apparent from the district plan.275

4.5.8

Summary

To sum up, land use is mainly regulated by district plans that need to implement directions from the RMA, the NZCPS and regional planning instruments that stipulate the avoidance of development in hazard prone areas or within the coastal environment if it is inappropriate. Buildings, for residential use, for instance, can also be restricted in hazard prone areas under the Building Act. Furthermore, information instruments can also encourage avoidance of further risk.

4.6

Coastal Setbacks and Buffer Zones

Part of an avoidance or a retreat strategy can be setback lines from the coast and the creation of buffer zones.

4.6.1

Setback Lines and Coastal Hazard Areas

Setback lines and coastal hazard areas provide another planning tool to control subdivision, use, and development. Setback lines require a certain distance of developments from a point of reference, e.g. the coastal edge or the coastal marine area. When relating to coastal hazards setbacks are also referred to as Coastal Protection or Coastal Erosion Lines. Development setbacks within the coastal environment can have different purposes, for instance, to avoid natural hazards,276 to protect the natural hazard mitigation function of the coast and to allow the coast to migrate landwards277 and to protect amenity values.278 To achieve these purposes,

274

Building Act 2004, s 31 (1). Building Act 2004, s 35 (1) (a) (ii) in conjunction with (2). 276 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 6.2.3. 277 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 6.2 (a); Thames-Coromandel Proposed District Plan, Part III Section 15 Policy 3c (b). 278 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 12.3.2 (c); Auckland Unitary Plan, Policy B8.3.2 (7). 275

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regional policy statements sometimes urge regional and district plans to require new developments to be setback at sufficient distance from the coastal edge.279 Building restriction lines were already subject to judicial review. In the case of Francks v Canterbury Regional Council, the High Court found the setback line under review to be appropriately assessed taking into account historic worst-case events as well as expert evidence on future erosion. The setback line prohibited habitable buildings over 25 m2 and made smaller buildings a discretionary activity.280 The setback distance can vary significantly between different planning instruments or even within one plan. Under the Tasman Resource Management Plan, for instance, new buildings in the Coastal Environment Area as defined by the planning maps, need to be set back from the mean high water springs. The exact set back distance required, however, depends on the zone of the location and varies from 10 to 100 m.281

4.6.1.1

Use of Different Setbacks

Other setback lines relate to areas identified as being subject to coastal hazards. District plans often use two different types of setbacks: one referring to the currently vulnerable area and a second setback taking into account future changes. Using different setback lines allows placing more severe restrictions on developments closest to the coast while less restrictive provisions can be imposed on developments further away that are not immediately affected by coastal hazards but will likely be in the future. The Thames-Coromandel District Plan, for instance, defines Current Coastal Erosion Lines as well as Future Coastal Protection Lines, the latter cover the area possibly being subject to erosion in the year 2100.282 In the area between the two setback lines, buildings are usually required to be relocatable283 along with a damage waiver or a similar instrument protecting the council and its ratepayers from liability.284 Similarly, the Hauraki District Plan uses a Primary and a Secondary Development Setback that refers to possible vulnerability within the next 100 years and includes 50 cm of sea level rise. The plan prohibits new buildings or additions to existing buildings seawards of the Primary Development Setback. In between the

279

The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 6.2.3. 280 Francks v Canterbury Regional Council (HC), CIV-2003-485-001131 on 10.06.2004, at [35] and [52]. 281 Tasman Resource Management Plan, Rule 18.11.3.1. 282 See Thames-Coromandel Proposed District Plan, Part VI Section 34.5. 283 Thames-Coromandel Proposed District Plan, Part II Section 10 Policy 1g generally requires relocation of structures and buildings where there is a potential future hazard risk within the next 100 years to make developments ‘future proofed.’ 284 Thames-Coromandel District Council (2015), p. 32.

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two setback lines, new dwellings are not permitted and additions to existing dwellings have to be relocatable.285 Working with different setback lines has the advantage that the impression areas outside the hazard zone would be safe is weakened. Hence, maladaptation in future hazard prone areas that are not yet zoned as at risk is at least partly avoided.286 Generally, this also depends on the timeframe applied to establish setbacks and whether setback lines and hazard zones are reviewed and updated periodically.

4.6.1.2

Setback Lines as a Controversial Issue

Designating coastal hazard zones and erosion lines can be controversial and face public pushback, above all from affected property owners. For example, the Kāpiti Coast District Council proposed building and subdivision restrictions in a 50-year erosion hazard zone based on projections of shoreline retreat within that timeframe. About half the submissions to the proposed district plan concerned the coastal management provisions, illustrating the importance and contentiousness of this issue. The public pressure led to the appointment of an expert panel which concluded that the erosion assessment was not robust enough and in the end, the district council withdrew the coastal management provisions from its proposed plan.287 With rising sea levels and expected exacerbating coastal erosion, at risk areas will move further landwards and setback lines should move further inland accordingly. As a consequence, more existing development will likely be zoned as located in a hazardous area. Due to the contentiousness of development restrictions, it seems advisable to use setbacks that cover future hazard prone areas to limit increasing vulnerabilities there.

4.6.2

Buffer Zones

Buffer zones can be created through development setbacks. Among other purposes like public access to the sea or recreational use,288 esplanade reserves and esplanade strips can have the function to mitigate natural hazards.289

285

Hauraki District Plan, 8.2.3.3. Rouse et al. (2016), p. 199. 287 Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZHC 2933 (HC), at [8–10]. See also: Weir v Kapiti Coast District Council [2013] NZHC 3522 [2013] 15 NZCPR 28 (HC). 288 Resource Management Act 1991: RMA, s 229 (b) and (c). 289 Resource Management Act 1991: RMA, s 229 (a) (v). 286

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Table 4.5 Buffer zones Esplanade Reserve

Esplanade Strips

Access Strips

a

Regulation S 230 (3), s 77 (1) (a) and s 237E (1) of the RMA S 232, s 237E (1) and sch 10 of the RMA s 237B and sch 10 of the RMA

Description Required an allotment of less than 4 hectares is created by land subdivision. 20 m width required by the RMA can be enhanced or reduced by district rules or reduced or waived by a resource consent. Created by the registration of an instrument between the territorial authority and the subdividing owner. Width is specified by district rules.

Compensation No compensation for the property owner.a

Created through the registration of an easement for the purpose of allowing public access to rivers, lakes, the coast, esplanade reserves or strips, other reserves or land owned either by a local authority or the Crown.

No provision exists.

No compensation for the property owner.b

Resource Management Act 1991: RMA, s 237E (1) Resource Management Act 1991: RMA, s 237E (1)

b

Maintaining and enhancing public access to the coastal marine area is a matter of national importance.290 The RMA regulates three different types of coastal buffer zones, summarized in Table 4.5. Since property owners do not get any compensation for creating an esplanade reserve or stip, they often try to get such a waiver or reduction.291 Planning instruments can set further requirements to maintain or acquire a reserve or protected buffer zone of at least 20 m width along the coastline—either as a recommendation292 or a mandatory provision.293 Considering that buffer zones along the coast do not only support avoiding further development but also dissipate wave energy, reducing adverse effects,294 their creation and maintenance is likely a no-regret action. Thus, mandatory plan provisions seem preferable.

290

Resource Management Act 1991: RMA, s 6 (1) (d). MacDonald v Christchurch City Council (EnvC), C 121/2002 on 03.10.2002. In this case the applicants sought to not provide for any esplanade reserve for their subdivision. Their application was denied by the Court. 292 Waikato Regional Coastal Plan, Implementation Method 17.2.14. The Regional Coastal Plan encourages the Territorial authorities to adopt such a buffer zone in order to protect from coastal hazards, predicted sea level rise and to protect indigenous vegetation, saltmarshes, mangroves and wetlands. 293 Tasman Resource Management Plan, Policy 8.2.3.11. Purposes are the protection of the natural character, the coastal ecology and public access. 294 See above: Sect. 2.5.3.3. 291

4.7 Property Rights

4.7

219

Property Rights

The land use regulations examined above as well as the establishment of setback lines tangent property rights, hence the next section is dedicated to their role in the context of coastal adaptation. First of all, the effect of natural processes like erosion on property is examined from a legal perspective. Afterwards, compulsory acquisition and its restrictions are addressed, followed by exploring the relationship between property rights and land use regulation under the RMA.

4.7.1

Property Rights and the Common Law Doctrine of Accretion and Erosion

Natural processes like erosion do not only affect the land itself but also property rights concerning real estate. The common law doctrine of accretion and erosion295 addresses the legal issue of ownership arising when land is bounded by water and therefore subject to natural changes of this boundary. In the case of accretion, the land is enhanced by (gradual and imperceptible)296 natural processes while in case of erosion the land decreases. According to this doctrine, the landowner’s title extends to the addition to the land by accretion, whereas the landowner is legally deprived of the property lost due to erosion.297 Therefore, erosion not only physically but also legally threatens properties. Since water bodies are often separated from private land through esplanade reserves, esplanade strips or roads, cases on accretion and erosion are rare in New Zealand despite ongoing erosion.298 With the expectation that erosion will be exacerbated by sea level rise, this might not remain the case. Thus, the relevance will likely increase in the future.

295

Marine and Coastal Area (Takutai Moana) Act 2011, s 13 (1) explicitly states that the Act does not affect the common law governing accretion and erosion with regard to the boundary between the land and the sea. 296 Eldrige v Beange (HC), CIV-2002-485-902 on 30.09.2005, at [16] and [20]. Contrary to this, sudden changes of the land-water-boundary, e.g. caused by earthquakes, are called ‘avulsion’ and the ownership remains unchanged. 297 Eldrige v Beange (HC), CIV-2002-485-902 on 30.09.2005, at [16]. See also: Foster (2014), p. 442; Attorney-General v Findlay [1919] NZLR 513 (SC). Note that the case was decided by the High Court which was referred to as ‘Supreme Court’ at that time. 298 Grinlinton (2006), p. 222.

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Expropriation or Compulsory Acquisition

The right of property and its exclusive use by the owner has long been recognized by the common law.299 However, in contrast to the protection of property rights under the German Basic Law or the US Constitution, no general statutory protection for property rights exists in New Zealand law that would be equivalent.300 This is due to the circumstance that the New Zealand Bill of Rights Act 1990, only protects property against unreasonable search or seizure301 but does not provide any further protection of property rights. Moreover, since it is an ordinary statute, not a supreme law and is thus subject to parliamentary supremacy.302 Therefore, courts cannot hold any enactment to be invalid because it is inconsistent with the New Zealand Bill of Rights Act.303 However, an interpretation of any enactment that is consistent with the New Zealand Bill of Rights Act is preferable.304 Expropriation is also addressed by the Magna Carta,305 which demands that “the power to expropriate is conferred by statute, and the statutory practice is to confer entitlements to fair compensation where the legislature considers land is being taken for public purposes under statutory power.”306 However, like the New Zealand Bill of Rights Act, the Magna Carta does not supersede other statutes. Therefore, according to the doctrine of implied repeal, this principle can be repealed by legislation307 and thus does not guarantee compensation. Under New Zealand law there is no general obligation to compensate for the appropriation of private property for a public purpose. Compensation, therefore, depends either on statutory provisions as for example in the Public Works Act 1981 or on the good will of the executive and the legislative.308 However, the common law presumes that Parliament did not intend to take away property without

299

See Blackstone (1871), p. 329. Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33 (SC), at [45]. The case involved the construction of a road. 301 New Zealand Bill of Rights Act: NZBORA, s 21. 302 Butler and Butler (2015), p. 5. 303 New Zealand Bill of Rights Act: NZBORA, s 4 (a). 304 New Zealand Bill of Rights Act: NZBORA, s 6. 305 The Magna Carta is part of New Zealand law, see Imperial Laws Application Act 1988, sch 1. The English translation of the Latin original provision reads as follows: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” 306 Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33 (SC), at [45]. 307 Barton (2003), p. 4. 308 Palmer (2001), p. 168. Agreeing: Barton (2003), p. 3 f. 300

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compensation unless is explicitly said so.309 Under the Public Works Act 1981, the owner is entitled to full compensation for land acquired or taken for public works.310 Different than under German law, expropriation is not limited to cases where it serves the public good but for all Government or local works authorized by any Act (public work).311 All in all, despite the ‘weaker’ protection of property rights, compensation is usually payable.

4.7.3

Property Rights Under the RMA

Due to the principle of Parliamentary sovereignty, any law passed by Parliament may restrict property rights to any extent.312 The RMA, for instance, does restrict property rights by e.g. regulating land use. The following case on coastal regulation summarizes the extent to which the RMA can restrict property rights through its regulatory regime. Example: Case of Falkner v Gisborne District Council313 In the past, the Gisborne District Council had erected and maintained coastal protection works, which also protected the front beach properties of the appellants. In 1992, the Council decided to implement a policy of ‘managed retreat’ through discontinuing the protection works. As a consequence, the appellants wanted to undertake protection works themselves and disputed the need for a resource consent for these works, invoking the common law right to protect their property against the sea as frontagers.314 Barker J found such a right as incompatible with the RMA’s regulatory approach: The Act prescribes a comprehensive, interrelated system of rules, plans, policy statements and procedures, all guided by the touchstone of sustainable management of resources. The whole trust of the regime is the regulation and control of the use of land, sea and air. There is nothing ambiguous or unequivocal about this. It is a

(continued)

309

Belfast Corporation v O. D. Cars Ltd. [1960] AC 490 [1959] 2 WLR 148 (HL), p. 509. The case concerned a Northern Irish statute but the cited section concerns general aspects and is applicable to New Zealand. 310 Public Works Act 1981: PWA, s 60 (1) (a). 311 Public Works Act 1981: PWA, s 23 (1) and s 2. However, it can be ultra vires if an authority takes land for the benefit of a private person, see: Bartrum v Manurewa Borough [1961] NZLR 21 (SC). 312 Barton (2003), p. 13. 313 Falkner v Gisborne District Council [1995] 3 NZLR 622 (HC). 314 They also claimed that the Crown had a common law duty to protect the realm against the inroads of the sea. This duty was found to exist in the interest of the general public, not just the frontagers and to be unenforceable.

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necessary implication of such a regime that common law property rights pertaining the use of land or sea are to be subject to it. [. . .] The effect of all this is simply that, where pre-existing common law rights are inconsistent with the Act’s scheme, those rights will no longer be applicable. Clearly, a unilateral right to protect one’s property from the sea is inconsistent with the resource consent procedure envisaged by the Act; accordingly, any protection work proposed by the residents must be subject to that procedure.

To sum up, property rights are neither absolute nor unlimitable and they do not prevent implementing a retreat strategy. However, compensation is usually required for compulsory acquisition. Further restrictions are made by the principle of reasonableness which applies to compulsory acquisition as well as to land use regulation.315

4.8

Protect Strategy

Although the provisions examined above on avoiding further development in risky areas are important, this does not address existing development. Existing property may favour pursuing a protection strategy, also because of the implications of property rights. In particular, major coastal cities such as Auckland will likely require protection works. The next section addresses different elements of a protect strategy, starting with structural protection works. This includes exploring the impacts of the Soil Conservation and Rivers Control Act. Afterwards, dunes and sand nourishment as soft defences are examined.

4.8.1

Structural Protection Works

In numerous places, structural ‘hard’ protection works are already in place. In many other places, hard defences will be feasible to protect people and assets over at least a short to medium term. In contrast to Germany, where dikes are the main defences along the North Sea coast, stopbanks as New Zealand’s equivalent only play a minor role for coastal protection. They exist, for instance, along the Hauraki Gulf where they protect low-lying land.316 However, seawalls and revetments are common coastal defences. Although planning instruments use different terms like ‘coastal

315

This is implied by Public Works Act 1981: PWA, s 23 (1) (b) (iii). See explicitly for resource consents: Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33 (SC), at [61]. See also in more detail below: Sect. 5.2.2.1. 316 Hauraki District Plan, 5.4.1 (6) (b) and (c).

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protection works’ or ‘hard protection structures’ their definition is similar. In the Tasman Resource Management Plan, the definition is as follows: “a seawall, rock revetment, groyne, breakwater, stopbank, retaining wall or comparable structure or modification to the seabed, foreshore or land adjacent to the coast that has a purpose or effect of protecting land from a coastal hazard, including seawater inundation or erosion.”317 Structural protection works also fall under the RMA’s definition of ‘structure’ as “any building, equipment, device, or other facility made by people and which is fixed to land; and including any raft.”318 The Acts contains different regulations for the coastal marine area, the location of a coastal protection structure (within or outside the coastal marine area) is essential to determine the applicable law. Due to the RMA’s distinction between land use consents and coastal permits and different responsibilities, a structure located partly within and partly outside the CMA’s boundaries, requires both permits.319

4.8.1.1

Structural Protection Works on Land

Landwards of the mean high-water springs, structural protection works, among others, are governed by district plans. As mentioned above, district plans often map different zones and areas within their territory and apply different regulations. The activity status of a structure can vary in different zones or areas. By assigning activity categories, councils can encourage or restrain protection structures; making it easy, difficult or even impossible to obtain a resource consent for a structure. When activities are classified as ‘restricted discretionary activity’, the discretion for granting a resource consent is restricted to the matters reserved.320 With regards to the installation of a coastal protection structure, the restriction of discretion can include the effects on the adjoining properties, the natural environment, and coastal processes as well as their effect on the access to the coast.321 Further examples of activity classifications relating to structural protection works are listed in Table 4.6.322 Other provisions relate to the interaction of structures with the environment. For instance, provisions that require protection structures to be located as far landwards 317 Tasman Resource Management Plan, Chapter 2. (coastal protection structure); Auckland Unitary Plan, Chapter J—Definitions. (hard protection structure). The Auckland Unitary Plan uses the term ‘coastal marine area structure’ which is defined as “any building, equipment, device or other facility made by people and which is fixed to the land, including the foreshore and seabed covered by water” and explicitly includes seawalls. 318 Resource Management Act 1991: RMA, s2 (1). 319 See for an example of this: Mason & Keall v Bay of Plenty Regional Council (EnvC), A098/07 on 30.11.2007. The case involved the construction of a seawall. 320 See above: 4.2.5. 321 Tasman Resource Management Plan, Rule 18.9.2.3. 322 See for detail on activity classification in general: 4.2.4.

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Table 4.6 Activities concerning structural protection works Hard coastal defences within the Current Coastal Erosion Area as well as the Future Coastal Process Areaa Extensions or alterations to existing lawful hard protection structures.b Repair, maintenance or minor upgradec of lawfully established protection structures against coastal erosion or inundation.d Installation, alteration, removal, maintenance, upgrade and debris clearance of (coastal) flood defences commissioned by the Waikato Regional Council.e

Non-complying activity Restricted discretionary activity Permitted activities

a

Thames-Coromandel Proposed District Plan, Part VI Section 34 Rules 11 and 20. According to the definition in Section 3 of the District plan a hard defence is a solid man-made structure, e.g. groynes, concrete sea walls, rock revetments, and river stopbanks b Auckland Unitary Plan, Activity E36 A 20 c Minor upgrade in this case means that the area occupied by the structure does not increase d Auckland Unitary Plan, E36.4.1. Activity A 19 and Standard E36.6.1.4. The Standard requires that good and safe working conditions of the structure are maintained, that the external appearance is not changed in more than a minor way and that the area occupied by the structure must not change e Thames-Coromandel Proposed District Plan, Part VI Section 34 Rule 23. Other activities related to flood defences are declared as discretionary activities

as possible in order to conserve the beach as a natural buffer.323 Plan provisions may also concern the protection of coastal defences, such as restricting buildings on berm land to protect stopbanks324 or directives that subdivision, use, and development shall not compromise or degrade the functionality and long-term stability of authorised flood and coastal defences.325

4.8.1.2

Structural Protection Works Within the Coastal Marine Area (CMA)

For the coastal marine area, s 12 (1) (b) of the RMA regulates that no person may “erect, reconstruct, place, alter, extend, remove, or demolish any structure or any part of a structure that is fixed in, on, under, or over any foreshore or seabed“ without the permission through either a national environmental standard, a rule in a regional coastal plan or a resource consent.326 As mentioned above, a second coastal permit for the occupation of the common and coastal area may be necessary unless provided otherwise.327

323

Auckland Unitary Plan, E36.3 (12). The provision refers to hard protection works located outside the coastal marine area. 324 Tasman Resource Management Plan, Rule 16.10.3.1. Buildings with a floor area greater than 15 qm are defined as a prohibited activity. 325 Thames-Coromandel Proposed District Plan, Part II Section 10 Policy 2a. 326 Resource Management Act 1991: RMA, s 12 (1) (b). 327 See above: 4.2.3.1.3.

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Table 4.7 Structures in the CMA Erecting structures that impound or effectively contain 4 ha or more of the CMA.a Erecting solid structures that are oblique or perpendicular to the mean high water springs.b Minor extensions, reconstructions or alterations to existing lawful structures if it does not add more than 5% to the overall size of the structure and if the external appearance does not change significantly.c Short-term structures (less than 3 months) for hazard management purpose if there is a functional need for the structure to be located in the CMA.d Maintenance and repair of lawfully existing structures if the foreshore or the seabed is not disturbed by the works and other terms are met e.g. no substantial change to the external appearance.e Disturbance and removal of material e.g. sand for the maintenance of stopbanks.f

Discretionary activity

Controlled activity

Permitted activity

a

Waikato Regional Coastal Plan, Rule 16.4.12 Waikato Regional Coastal Plan, Rule 16.4.16 c Waikato Regional Coastal Plan, Rule 16.4.22 d Waikato Regional Coastal Plan, Rule 16.7.1. The Council furthermore reserves control with respect to e.g. the location of the structure e Waikato Regional Coastal Plan, Rule 16.4.20 and Rule 16.4.21 f Waikato Regional Coastal Plan, Rule 16.6.23 b

Decision-making criteria for discretionary or non-complying activities may require taking into account whether and to what extent the design of a structure can withstand coastal processes and relative changes in sea level.328 The activity classification is often less strict for maintenance, repair, and reconstruction of existing lawful structures (e.g permitted activities).329 The occupation of space in the CMA by any structure is also subject to activity rules in regional coastal plans.330 Regulations may differ depending on various parameters like the size or alignment of the structure. Table 4.7 presents some exmaples from the Waikato Regional Coastal Plan. Other regulations aim at locating protection structures as far landwards as possible, for instance only allowing structures seaward of the mean high water springs when other options331 are not practicable and proposed structure is the most

328

Waikato Regional Coastal Plan, Appendix II Structures g). See e.g. Auckland Unitary Plan, Activity F2.19.10 A122. 330 See for instance: Waikato Regional Coastal Plan, Rule 16.4.26. (General classification as discretionary activity). 331 This includes non-intervention, managed retreat, abandonment or relocation of the development/ structure. 329

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appropriate method.332 Furthermore, structures may only be allowed in the CMA if they require a coastal location and do not detract the natural character.333 All in all, the regulatory possibilities are manifold and vary depending on the location of the structure.

4.8.1.3

Choice, Design, and Dimensions of Structures

As apparent from the examples in the table above, some regulations on the activity status depend on the design of the defence. With regard to the design of protection structures, planning instruments may require the design to take into account the effects of sea level rise at least over a 100 year timeframe334 and to avoid any increase of coastal erosion rates and to take into account dynamic coastal processes expressively including expected effects of climate change and sea level rise.335

4.8.1.3.1

Non-Statutory Guidelines

In general, there is almost no regulation on the choice, design, and calculation of coastal defences. In some cases, local governments create their own, non-statutory guidance documents. An example are the guidelines of the Bay of Plenty Regional Council concerning the actual choice and design coastal defences. Their Guideline for Erosion Protection Works in the Tauranga Harbour provides standard designs for different protection works but also identifies whether site-specific assessment by a specialist coastal engineer is necessary.336 The Guidelines partly take into account rising sea levels. Another guideline by the same council covers stopbank design and construction and, among other, recommends including climate change into the design.337 However, the guideline does not cover coastal protection works338 but includes stopbanks located on tidally influenced river estuaries.339 Although the guidelines are non-statutory, they can constitute ‘good practice’ and impact coastal

332

Auckland Unitary Plan, Policy F2.16.3 (14). Also compared to soft engineering works. Tasman Resource Management Plan, Policy 21.1.3.1 and 21.1.3.3. Similarly, Tasman Resource Management Plan, Policy 21.2.3.3. demands the avoidance, remedy or mitigation of the adverse effects of structure or works in the CMA on (among others) the natural character and natural coastal processes, aiming at the protection of coastal marine habitats and ecosystems. 334 Auckland Unitary Plan, Policy F2.16.3 (16) (c). 335 Auckland Unitary Plan, Policy F2.16.3 (7) (f) and (g) and (8) (d) and (e). 336 Environment BOP (2002), pp. 4 and 69. Groynes, for instance, are considered to always require a site-specific assessment. 337 Bay of Plenty Regional Council (2014), p. 13. 338 Bay of Plenty Regional Council (2014), p. 1. 339 For the Bay of Plenty region the existing stopbanks are identified in Bay of Plenty Regional Council (2015), p. 15, 20, 23 and 26. 333

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adaptation through recommendations concerning climate change. They may also play a role for resource consents under s 104 (1) (c) of the RMA.

4.8.1.3.2

Site-Specific Expert Reports

With regard to options of and designs for particular coastal protection structures, councils often request site-specific reports from engineering companies. A report concerning the construction of a seawall prepared for the Auckland Council, for instance, establishes the important parameters for the designs such as water and tidal levels, storm surges, and future sea level rise The recommended design objectives include the possibility to modify the structure taking into account a sea level rise of 0.5 m.340 After assessing different options, including landwards relocation, largescale beach nourishment, and different revetment and seawall types, the report recommends a combination of sloping rock armour revetment, stone walls, and sand nourishment.341 As apparent from the examples given, there is not much guidance, whether statutory or non-statutory, on coastal protection structures but a strong reliance on engineering standards and expertise.

4.8.1.4

Soil Conservation and Rivers Control Act 1941

Apart from coastal protection works assigned as a task to a council by a planning instrument,342 councils can be responsible for flood protection works under the Soil Conservation and Rivers Control Act 1941. Although most of the content of this Act was repealed, some sections concerning flood protection are still in force. Functions, duties, and powers under the Act are assigned to Catchment Boards,343 which were all subsumed into regional councils.344 The Ministry for the Environment may contribute financially to the construction of defences against water or soil erosion.345 One function of Catchment Boards is “to minimise and prevent damage within its district by floods and erosion.”346 To carry out its functions, the Act generally assigns “all powers, rights and privileges as may reasonably necessary or 340

Although the report acknowledges that sea levels might rise between 0.62 and 1.27 in the next 100 years or even more if the Antarctic ice sheet collapses, it only considers the 0.5 m sea level rise recommended in the previous national guidance manual. See: Tonkin & Taylor Ltd (2015), pp. 11 and 13. 341 Tonkin & Taylor Ltd (2015), p. 19 ff. and 42. 342 Tasman Resource Management Plan, Works and Services 13.1.20.4. 343 See e.g. Soil Conservation and Rivers Control Act 1941: SCRCA, s 40. 344 Edmonds (2018), p. 571; Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2011] 1 NZLR 120 (HC), at [103 f.]. 345 Soil Conservation and Rivers Control Act 1941: SCRCA, s 30 (1). 346 Soil Conservation and Rivers Control Act 1941: SCRCA, s 126 (1).

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expedient” and particularly with regard to the construction, reconstruction, alteration, repair, and maintenance of works.347 Hence, the maintenance of a stopbank can be permitted under the relevant protection scheme of a defence. This includes repair works as well as reconstructions and amendments as long as the overall intent of the original scheme is maintained; therefore the level of protection needs to remain the same.348 Since the provisions do not supersede the RMA, all constructions need to comply with the mentioned Act.349 At tidally influenced rivers, river and catchment management schemes impact the flood protection strategy. For example, the current flood protection and stopbank management schemes by the Waikato Regional Council for the Hauraki District350 aim at a 100 year protection level from high tides and tidal floods and planning with 0.5 m of sea level rise.351 Consequently, the aforementioned management schemes play a role for structural protection works, although not a dominating one.

4.8.1.5

Summary

As seen, structural protection works are subject to the provisions of planning instruments, just like any other activity. There is no specific regulation like the Lower Saxonian Dike Act or the separate sections on flood protection works in the State Water Acts in Germany.352 Structural protection works are not prioritized in the same way but often discouraged by the planning instruments. The reliance on engineering standards and expert knowledge with regards to choice and design of protection structures was already mentioned.

4.8.2

Dunes

Dunes are an important part of coastal protection in New Zealand, which is illustrated by the amount of regulation at all levels. Where dunes are part of the natural

347

Soil Conservation and Rivers Control Act 1941: SCRCA, s 126 (2). Middlemiss v Canterbury Regional Council (EnvC), C97/2007 on 29.07.2007, at [6–8]. The case dealt with the question whether an improvement of coastal banks where a permitted activity under the scheme or if a consent under the Coastal Plan was required. 349 Soil Conservation and Rivers Control Act 1941: SCRCA, s 10A. 350 Environment Waikato (2007), p. 10. Note that ‘Environment Waikato’ was a name used by the Waikato Regional Council in the past. See for the Waikato Regional Council’s responsibility for flood protection also: Waikato Regional Council, p. 71. 351 Environment Waikato (2007), pp. 12–15. 352 See above: Sect. 3.4. 348

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character of the coastal environment or part of an outstanding natural landscape, their protection is a matter of national importance under s 6 of the RMA.353 The NZCPS explicitly lists dunes as a coastal ecosystem that is part of the coastal environment.354 Furthermore, not only the preservation of the coastal environment but also the protection and restoration of natural defences is an objective of the NZCPS relevant for dunes as soft defences.355 Like in case of protection structures, plan provisions may differ if the dune is located in the coastal marine area356 or be connected to the location of dunes in an area defined by a planning instrument, such as a High Risk Erosion Area.357 Mostly, planning instrument provisions on dunes relate to their protection or enhancement. For instance, a stipulation promoting the management of dunes to maintain or enhance their function of reducing natural hazard risks.358 Development setbacks may serve the same purpose.359 These provisions can also help to avoid coastal squeeze through enabling landward migration of dunes. Similarly, the protection of dunes is promoted by provisions that demand to avoid the modification, alteration, and removal of sand dunes and sand dune vegetation that would endanger their protective function against coastal hazards.360 Another tool to protect dunes is classifying dune stabilization361 as a permitted activity if it is conducted for the purposes of erosion management, replenishment or habitat enhancement.362 Similar to regulations on dunes in Germany,363 access is restricted for pedestrians and vehicles by various provisions, including policies of the NZCPS.364

353

See above on matters of national importance: 4.2.1. New Zealand Coastal Policy Statement 2010: NZCPS 2010, Objective 1. 355 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Objectives 2 and 5. Furthermore, New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policies 14 (c) (iv), 19 (3) (b), 20 (1) (a) and 26. 356 In case of the Auckland Unitary Plan, for instance, the regional coastal plan provisions apply to dunes located in the coastal marine area. 357 Waikato Regional Plan, Rules 5.1.4.14 and 5.1.4.15. The provisions establish controlled and discretionary activities in this area, which includes coastal frontal dunes at the east coast. 358 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Objetive 3.16 (b). 359 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policies 6.2 b) and 6.2.3 f). 360 Auckland Unitary Plan, Policy E36.3 (10). 361 Dune stabilisation refers to soft engineering works like revegetation, wind fencing and dune reshaping. See for the definition: Auckland Unitary Plan, Chapter J p. 35. 362 Auckland Unitary Plan, E36.4.1 Activity A15 and Standard E36.6.1.3. This requires a written notice to the council 10 working days before starting the works. The Standard sets further requirements e.g. concerning the seaward extent of the dune. Otherwise, due stabilizations are discretionary activities according to Auckland Unitary Plan, E36 Activity A17. 363 See above: Sect. 3.4.6. 364 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policies 19 and 20; The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policy 12.5.2. 354

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Regulations on subdivision, use, and development may require the aforementioned activities to avoid, remedy or mitigate adverse effects on dunes365 or even promote that they enhance the ability of dunes to protect against coastal erosion and inundation.366 Dune erosion management can further aim to avoid significant adverse effects on the natural character and ecological values associated with the coastal environment as well as damage to property and infrastructure.367 Dune restorations can also be part of a Coast Care Program required as a condition for a land use consent. In one of its cases, the Environment Court acknowledged that Coast Care Programs, in that case a dune restoration plan including sand entrapment, dune replenishment, and planting, generally are more likely to be in accordance with the intentions of the NZCPS than a rock wall.368 Overall, dunes are addressed by several different regulations ensuring their protections which is likely due to their significance as soft coastal defences.

4.8.3

Sand Nourishment

Part of a strategy to preserve dunes and their protective function is conducting sand nourishments. The Bay of Plenty Regional Councils guideline on Erosion Protection Works in the Tauranga Harbour, for instance, recommends the placement of additional sand in order to reconstruct dunes.369 Sand nourishments are often used to compensate sediment deficits of beaches.370 Regulations on sand nourishment exist with regards to the extraction of nourishment material and its deposition. They furthermore depend on whether the location is within the coastal marine area or on land. Within the coastal marine area, the extraction of sand constitutes a disturbance of the foreshore or seabed and is, as a consequence, subject to a resource consent if it will or is likely to have adverse effects on this area—unless provided otherwise by a national environmental standard or a rule in a regional coastal plan. The same applies to the deposition of the nourishment material.371 Since the extraction, as well as the deposition of sediment, usually has negative impacts on the natural processes, (a) relating to avoid inappropriate vehicle use to protect the stability of dunes. As well as Auckland Unitary Plan, Policy F9.3 (3) (a). 365 See for example: Auckland Unitary Plan, Policy E18.3 (3) (h); Thames-Coromandel Proposed District Plan, Part II Section 6 Policy 1e. The latter concerns the protection of dunes as an indigenous ecosystem and habitat. 366 Thames-Coromandel Proposed District Plan, Part II Section 10 Policy 4b. 367 Waikato Regional Plan, Objective 5.1.2. 368 Sustainable Ventures Ltd v Tasman District Council [2012] NZEnvC 235 (EnvC), at [6] and [35]. 369 Environment BOP (2002), p. 48. 370 See above: Sect. 2.5.3.2. 371 Resource Management Act 1991: RMA, s 12 (1) (c) and (d).

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ecosystem, and habitat in the borrow site as well as the target site,372 adverse effects will almost always be likely when conduction sand nourishments. This is supported by the circumstance that some provisions on nourishments concern their adverse effects. Examples are provisions that require physical modifications (including dredging, removal or deposition of material) to avoid, remedy or mitigate their adverse effects on the natural character of the coastal marine area373 or on public access, amenity values, coastal processes, ecosystems, habitats, and lawful structures.374 Moreover, sand nourishment is subject to activity classification. The activity status of sand nourishments can depend on different circumstances like the zone where the material is deposited, the quantity of material or if the deposited material is taken from within or outside the same coastal cell.375 Disturbance for the purpose of avoiding or mitigating effects of erosion or inundation is sometimes privileged as a permitted activity.376 In case sand is extracted from the common marine and coastal area,377 s 12 (2) (b) applies, also requiring permission by a national environmental standard, a regional rule or a resource consent. Outside the coastal marine area, beach nourishment may in some cases be classified as a permitted activity if conducted for the purpose of erosion management, beach and dune replenishment or habitat enhancement and only requires prior written advice to the council.378

4.9

Managed Retreat

Currently, relocation or abandonment of assets is usually “considered on a case by case basis – not as part of adaptive, integrated strategies.”379 An example of the adoption of managed retreat strategy is the ‘Sunset Beach Erosion Project 2016’. To

372

See above: Sect. 2.5.3.2. Tasman Resource Management Plan, Policy 21.1.3.1. 374 Tasman Resource Management Plan, Policy 21.2.3.8. 375 Auckland Unitary Plan, Activities F219.2 A7 to A10. Depending on these parameters, the sediment deposit can be a permitted, restricted discretionary, discretionary or non-complying activity. 376 Tasman Resource Management Plan, Rules 25.1.5.5, 21.1.5.7 and 21.1.5.8. The nourishment must comply with some conditions, otherwise, it is a controlled activity or a discretionary activity. 377 Resource Management Act 1991: RMA, s 2 (1) refers to the definition of s 9 of the Marine and Coastal Area Act 2011 which refers to the marine and coastal area which is not freehold land or owned by the Crown and has a status as conservation area, national park or reserve. 378 Auckland Unitary Plan, E36.4.1 Activity A 14 and Standard E36.6.1.2. The Standard sets further requirements e.g. concerning the deposited material. Otherwise, beach nourishments are classified as discretionary activities by Auckland Unitary Plan, E36 Activity A 16. Similarly, Waikato Regional Coastal Plan, Rule 16.6.15. ties the activity status to the quantity (10,000 m3 of sand or shell) that is deposited on the foreshore. 379 Hanna et al. (2017), p. 12. 373

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respond to ongoing and further erosion of Sunset Beach, the Waikato District Council decided after extensive community consultation to relocate community assets like the community hall if erosion continues.380 It is likely that the community support for the managed retreat option is due to the fact that the relocation does not affect private property. In general, retreat strategies are expected to become more viable with rising sea levels and exacerbating coastal hazards. Hence, the following paragraphs examine the implications of property rights, present implementation strategies and an example where retreat is taking place at the moment, before closing with examples of planning instruments on that matter.

4.9.1

Managed Retreat and Property Rights

Unsurprisingly, managed retreat strategies and their implementation are usually strongly opposed by the affected property owners.381 Although the case did not concern the legality of the ‘managed retreat’ policy, the Court dedicated a few words to this matter in the already mentioned case of Falkner v Gisborne District Council. The appellants, in this case, had invoked s 21 of the New Zealand Bill of Rights Act 1990 arguing that the managed retreat policy would amount to a ‘seizure’ of their property and thus infringe the invoked right. Barker J remarked that it would be questionable whether the erosion of property by the sea falls under the definition of ‘seizure’ since the word would suggest ‘some sort of human agency’.382 In addition, this interpretation is supported by the context of the provision, which only protects against “unreasonable seizures.” Erosion as a natural process cannot be reasonable or unreasonable. More important, it has already been examined that property rights can be limited by regulations. In case compulsory acquisition is necessary for the implementation, compensation would usually be paid.383

4.9.2

Implementation Strategies

In general, managed retreat can occur reactively in response to a hazard event or in an anticipated manner, where properties at high risk are identified and over time relocated before an event occurs.384 To implement managed retreat, protection

380

Waikato District Council Addressing erosion at Port Waikato’s Sunset Beach. See for the different retreat options assessed: Waikato District Council (2016). 381 Vandenbeld and MacDonald (2013), p. 161. 382 Falkner v Gisborne District Council [1995] 3 NZLR 622 (HC), p. 633. 383 See above: 4.7.2 and 4.7.3. 384 Owen et al. (2018), p. 10.

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Table 4.8 Implementation of managed retreat Method Regional and district plan rules Property title covenants

Financial instruments

Description Manage existing use rights and limiting or controlling the construction of protection works Prevent undesirable activities like the construction of coastal defences and/or specify where and when retreat and/or relocation is required Purchase of property, subsidies for relocation, taxation of risk or adverse effects, community relocation fund, transferable development rights

Relocation of infrastructure out of hazard areas Insurance incentives or disincentives

structures must be prevented and buildings are required to be either relocated or removed when a pre-set hazard threshold is exceeded.385 Furthermore, locations need to be identified where the community can be relocated to and provisions need to be made for removing or relocating at-risk infrastructure.386

4.9.2.1

Methods

For implementing managed retreat strategies, the previous guidance manual of the Ministry for the Environment lists the methods summarized in Table 4.8.387 Property title covenants could, inter alia, include provisions requiring buildings to be removed or relocated when affected by coastal processes, that protection works will not be built and that neither complaints will be made about erosion nor protection works requested. Furthermore, penalties payments in case the requirements are disregarded could be included.388 Other possible instruments for managed retreat are a no-build covenant389 or designation.390 Furthermore, the state (either central or local government) could acquire land to establish a “coastal protection reserve” under the powers conferred by the Public Works Act 1981.391 Hence, the implementation options are manifold.

385

Environment Waikato (2006b), p. 23. Owen et al. (2018), p. 9. 387 Ministry for the Environment (2008), p. 70. 388 Environment Waikato (2006b), p. 26. 389 Aubrey v Whangarei District Council [2017] NZEnvC 44 (EnvC). The registration of a no-build covenant was required for consenting a proposed campsite at the coast. 390 Kenderdine (2010), p. 76. 391 Harker (2016), p. 81 f. 386

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Existing Use Rights

Implementation may require the extinction of existing use rights. Partly similar to grandfathered rights under German law,392 existing use rights may contravene district plan rules if their effects are the same or similar to those which existed before the rule became operative.393 This, however, does explicitly not apply to the regional councils’ powers to control land uses under s 30 (1) (c) of the RMA.394 Hence, regional councils can revoke existing use rights to achieve the avoidance and mitigation of natural hazards.395 Unless entirely voluntary, successful retreat strategies will, therefore, need to be implemented on the regional level. However, since the territorial authorities are generally in charge of land use planning, this regulation creates not only a jurisdictional problem but also confusion and uncertainty among practitioners.396

4.9.3

Examples

Retreat is increasingly considered as an option, not only in the coastal context. In Hawke’s Bay, for instance, retreat is among the strategies considered in order to cope with coastal hazards. An economic analysis of different options found that in two locations an immediate retreat would be the least expensive option. However, due to the lack of flexibility of a retreat strategy, in both cases, the recommendation was to start with sand nourishment or defences that provide the choice to be enhanced later or to opt for a retreat strategy.397 This illustrates that although being the most economic option, retreat is difficult to implement, especially without preparing a strategy a long time in advance. Furthermore, relocation is now discussed for two small communities in the West Coast region of the South Island which are considered to be under imminent threat of inundation.398 Furthermore, managed retreat is investigated as an option for the Franz Josef township, gateway to the glacier with the same name at the west coast of the South Island. In a report concerning the management of natural hazard risk from the alpine fault, landslides triggered by earthquakes and river flooding, relocating the town to another location was one of three options assessed and the only one that would effectively reduce the risk from earthquake-triggered landslides.399

392

See above: Sect. 3.8.1.3.1. Resource Management Act 1991: RMA, s 10 (1). 394 Resource Management Act 1991: RMA, s 10 (4) (a). 395 Resource Management Act 1991: RMA, s 30 (1) (c) (iv). 396 Hanna et al. (2020), p. 7. 397 Infometrics (2017), p. 1f. 398 Carroll (2018) West Coast communities warned they must move from flood and erosion zones. 399 Tonkin & Taylor Ltd and EY (2017), especially p. 74. 393

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More advanced and on its way to implementation is the managed retreat strategy for parts of the Matatā community in the Whakatāne District in the Bay of Plenty Region:400 After a debris flood in 2005 devastated parts of the township, the District Council aimed at constructing protection works. However, engineering solutions turned out not to be viable, leaving managed retreat as the only option. The Councils’ obligation to address natural hazards due to this being a matter of national importance under s 6 (h) of the RMA and the relevant RPS demanding the reduction of high natural hazard risk to at least medium risk level,401 enabled the adopting of the managed retreat strategy.402 Apart from working on a voluntary retreat strategy offering compensation to the affected property owners with remaining issues about funding, the District Council proposed a plan change that rezones the high-risk area from ‘residential’ status to a ‘Coastal Protection Zone’ where all activities other than recreational use of open space is prohibited. Since the District Council does not have the power to regulate existing use rights, this plan change only affects new developments. In order to address this circumstance, the District Council submitted a Plan Change to the Regional Natural Resource Plan to include a rule that prohibits residential activities within the high-risk area after the 31st of March 2021.

4.9.4

Planning Instruments on Managed Retreat

Despite the enabling role in the Matatā case, in the absence of national guidance, the terminology in planning instruments on managed retreat, in general, is inconsistent and mostly lacks definitions.403 Existing plan provisions may be rather general and e.g. only encourage managed retreat to reduce hazards risks through relocation, removal or abandonment of structures.404 This would be the first case where RMA provisions are used to force property owners to abandon their land.405 The Waikato Regional Policy Statement is an exception to this since it is mandatory in its wording and directs that regional plans “shall identify the circumstances when it is appropriate to require existing development along the coast to be relocated, and shall include provisions for this relocation, to be sufficient distance from the coastal edge” to, among other considerations, avoid natural hazards.406 With setting this requirement, the Waikato Regional Council actively pursues enabling managed retreat, which now has to be implemented into the regional plan (currently under review) due to the RMA’s hierarchy of planning instruments. This

400

Whakatāne District Council (2018). Regional Policy Statement for the Bay of Plenty, Policy NH 3B (a). 402 Hanna et al. (2018), p. 22. 403 Hanna et al. (2017), p. 13. 404 Auckland Unitary Plan, Policy B10.2.2 (9) (b). 405 Ellis (2018), p. 33. 406 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Implementation Method 6.2.4. 401

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approach is, however, a singular one. Usually, the wording of provisions on managed retreat is less strong and directive, mostly only requiring to ‘consider’ managed retreat. Although some of the existing planning instruments promote or seek to facilitate managed retreat, none actually requires to implement a managed retreat strategy. The focus is more on future retreat options for new developments through relocation requirements than dealing with existing development.407 Establishing future retreat options is indisputably important but may not be enough since many existing developments will experience severe impacts due to rising sea levels. Thus, policies on managed retreat need to be implemented through binding regulations, i.e. rules in regional or district plans that for example prohibit further subdivision. Up to now, rules that enable managed retreat are often missing in planning instruments.408 Exceptions where subdivision is a prohibited activity are a few locations in the Tasman District409 and, although only in some circumstances, new or additional dwellings in the Current Erosion Risk Zone in the Whakatāne District.410 Overall, managed retreat is more and more considered as a viable option but remains hard to implement, except under extreme circumstances like in the case of Matatā. In particular, due to its usually controversial nature, strong directives rather than obligations to consider retreat are necessary to implement a retreat strategy where suitable.

4.10

Accommodation

A less controversial adaptation strategy is accommodation, for instance in the form of flood-resistant design or insurance, including ‘state insurers’ like the Earthquake Commission.

4.10.1 Flood-Resistant Design Planning instruments can generally encourage to reduce existing risks and avoid the creation of new risks through the design of buildings and structures,411 thus 407

Hanna et al. (2017), pp. 15–20. The study undertook a comprehensive review of planning instruments concerning managed retreat. 408 See generally on the lack of rules as a problem of poorly drafted planning instruments: Environment Court (EnvC) (2014), p. 24. 409 Tasman Resource Management Plan, Rules 16.3.3.8 and 16.3.3.9. However, an exception applies to subdivision that complies with another rule. 410 Whakatāne District Plan, 18.2.1 Activities 14–16. 411 Auckland Unitary Plan, Policies B10.2.2 (1) (a) and (13) (c). The provision deals with redevelopment on land prone to natural hazards).

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Accommodation

237

increasing resilience through promoting an accommodation strategy. Another example is the requirement for minimum floor levels of buildings in flood-prone areas. Such provisions can be found in some planning instruments412 and were already subject to judicial review.413 Flood-resistant design can also influence the assessment of a resource consent application. In Otago Regional Council v Dunedin City Council, the Environment Court accepted a proposal to erect a house on low-lying coastal land (below one metre above mean sea level) since the house was to be built on columns with a minimum floor level of 3.7 m above the mean sea level. Moreover, the Court accepted the condition offered by the landowners to keep a boat on their premises.414 Although the latter is not an example of flood-resistant design, it can arguably be considered as adaptation in a broader sense.

4.10.2 Insurance Insurance as a risk spreading instrument can also be a tool for accommodation.415

4.10.2.1

General

At the moment, insurance premiums are mostly cross-subsidised and thus do not reflect the risks adequately. Furthermore, after a disaster, the insurance often only covers comparable replacements (“like for like”) but does not encourage risk reduction or resilience.416 Hence, in these cases, adequate adaptation does not take place. With increasing coastal hazard risks, affected properties are expected to face higher premiums or excesses, for instance, in a hazardous area in Christchurch the excess was raised to 10,000 NZD.417 Properties that are especially vulnerable to sea level rise are expected to become difficult or impossible to insure.418 There are already some cases in which insurance is considered on a case-by-case basis and denied in some cases due to the extreme coastal erosion and inundation risk.419 At 412

Auckland Unitary Plan, Policy E36.3 (9), Activity E36.4.1 A12 (permitted activity) and Standard E36.6.1.1. 413 Trustees of Tuhua Trust Board v Minister of Local Government [2012] NZEnvC 202 [2012] 17 ELRNZ 93 (EnvC), In particular at [70–76]. 414 Otago Regional Council v Dunedin City Council [2010] NZENvC 120 [2010] NZRMA 263 (EnvC), at [7, 10, 69, 91]. 415 See above: Sect. 2.5.5.2. 416 Boston and Lawrence (2017), p. 12. 417 Storey et al. (2017), pp. 3 and 7. This corresponds to about 6036 €. 418 Storey et al. (2017), p. 2. 419 Climate Change Adaptation Technical Working Group (2017), p. 74. This took place in Haumoana, Hawke’s Bay. See also: Storey (2018b).

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the moment, the risk is generally taken into account by higher excesses not higher premiums.420 In some locations, insurance will probably become unavailable. For Wellington, this so-called ‘insurance retreat’ is expected within the next 20 years since the expected rise of 20 cm in relative sea level within that timeframe will likely increase coastal flood probabilities from once in 100 years to once in 20 years.421 Failing to obtain or renew insurance, will entail major consequences for home buyers and homeowners since insurance is a requirement for residential mortgages. While mortgages are repaid over several years, insurances have to be renewed annually, thus allowing the insurer to withdraw within 12 months. This is expected to lead to higher interest rates for mortgages, making buying homes less affordable.422 All in all, insurance plays a much more important role in New Zealand than it does in Germany.423 Increasing premiums or excesses as well as denying insurance send signals to (future) coastal property owners about the risks that they are facing and may prevent further investment in hazard prone areas. Hence, insurance can also function as a risk communication tool.

4.10.2.2 4.10.2.2.1

The Earthquake Commission (EQC) Introduction

With regard to natural disaster insurance and compensation, the Earthquake Commission plays an important role. The Earthquake Commission is a Crown entity424 administering the insurance against natural disaster damage provided under the Earthquake Commission Act 1993. Among others, the Earthquake Commission collects insurance premiums and administers the Natural Disaster Fund,425 which is used to settle claims against the Earthquake Commission in respect of the insurance provided by the Act.426 Therefore, the Earthquake Commission is a ‘state insurer’ for natural disaster risks.427 The financial obligations and liabilities of the Earthquake Commission are secured by a Crown guarantee in case the funds are deficient.428 Despite its name, the Earthquake Commission’s responsibility does not only include tsunamis as earthquake-related coastal hazards but also natural

420

Ellis (2018), p. 28. Storey (2018a). See generally on changing sea levels for New Zealand: Stephens (2015), p. 32 ff. 422 Storey et al. (2017), p. 8. 423 See above: Sect. 3.6.2. 424 Earthquake Commission Act 1993, s 4 (1). 425 Earthquake Commission Act 1993, s 5 (1). 426 Earthquake Commission Act 1993, s 15 (a). 427 Michalik and Boys (2015), p. 287. 428 Earthquake Commission Act 1993, s 16. 421

4.10

Accommodation

239

disaster fires and (although limited to residential land) storms and floods.429 Damages caused by coastal erosion are not covered.

4.10.2.2.2

Coverage

Any residential building in New Zealand that is insured against fire by an insurance company is automatically covered by the insurance under the Earthquake Commission Act 1993.430 A premium is to be paid to the Earthquake Commission by the insurance company for each contract of fire insurance.431 The premium is a nationwide one432 and does not take into account exposure to risk. Therefore, this spreads the risk across all policyholders in the country but also “mutes the price signal” which could otherwise discourage development in hazard prone areas.433 However, after the flood event in Edgecumbe on the North Island in 2017, the Earthquake Commission was instructed by the competent Minister to also clean-up affected properties that are not covered by insurance.434 This extension of compensation is likely to discourage people from obtaining insurance and from changing to more resilient actions, thus possibly resulting in maladaptation.435 Ad hoc government assistance to natural disaster losses is the norm rather than the exception and there is a corresponding social expectation of compensation by the state for these losses.436

4.10.2.2.3

Potential Limitations

The Earthquake Commission may decline a claim if the record of title for the land contains an entry under s 74 of the Building Act identifying the land as subject to natural hazards.437 However, the claim can only be declined for hazards registered on the record but not if the damage occurs because of a different hazard.438 It is unclear whether this provision was used so far to reject a claim but its importance is likely to increase with exacerbating hazards.439

429

Earthquake Commission Act 1993, s 2. Earthquake Commission Act 1993, s 18 (1). 431 Earthquake Commission Act 1993, s 23 (1). 432 Earthquake Commission Regulations 1993, Regulation 3 (1) (a). It is calculated at 20 cents per 100 NZD of cover. 433 Storey et al. (2017), p. 3. 434 New Zealand Government (2017) EQC to lead Edgecumbe clean-up. 435 See for post-disaster help as maladaptive: Glavovic and Smith (2014), p. 4. 436 Ellis (2018), p. 21. This is similar to the situation in Germany, see above: Sect. 3.12.5. 437 Earthquake Commission Act 1993, sch 3 cl 3 (d). 438 Doyle v Earthquake Commission [2009] NZRMA 546 (HC), at [46]. 439 At least, there was no case in court involving the provision so far. 430

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Furthermore, it is possible for the Earthquake Commission to limit its liability by giving written notice to the insured that it considers the property to be in “imminent danger of suffering natural disaster damage”. Similarly, the Earthquake Commission may give notice that it may decline further claims if a natural disaster has occurred and the Earthquake Commission considers that the property will suffer the same loss or damage again and that the damage can be reasonably avoided.440 Such a ‘warning’ could encourage the insured property owners to take precautions. Instead of compensation, the natural disaster damage occurred to residential buildings or land, the Earthquake Commission can relocate a building on the same site or to a different site of reasonable equivalent to the existing site before the damage occurred.441 In these cases reactive adaptation takes place. With exacerbating coastal hazards, the role of the Earthquake Commission will likely become more important. Setting the right incentives and using the available means to achieve adaptation and increase resilience should, therefore, be paramount.

4.11

Choosing a Strategy: The Example of Cooks Beach Coastal Erosion Management Strategy

Due to the distribution of responsibilities, local governments mostly decide on coastal adaptation. This section presents an example of how councils choose an adaptation strategy. Some directives exist, as most planning documents promote risk avoidance (e.g. through relocation) or prefer soft protection measures442 or natural defences443 to hard protection measures. Other provisions aim at discouraging hard protection structures.444 Examples are provisions that view new hard coastal defences as only as a ‘last resort’ when other options are not available445 or classify hard protection works as non-complying activities.446 Which strategy is adopted is often decided by the competent council after commissioning an assessment report and consulting the stakeholders involved. An example of this are non-statutory coastal management strategies. Located on the east coast of the Coromandel peninsula, Cooks Beach is one of the many places subject to coastal erosion in New Zealand. In order to decide on how

440

Earthquake Commission Act 1993, h 3 cl 5 (1) and (2). Earthquake Commission Act 1993, sch 3 cl 10 (1). 442 Thames-Coromandel Proposed District Plan, Part II Section 10 Policies 1b, 4a and 4e. 443 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Policies 13.1 g) and 13.2 f) ; Auckland Unitary Plan, Objective E36.2 (6). 444 Auckland Unitary Plan, Policy B10.2.2 (9) (c) and (11) and E36.3 (11). 445 Thames-Coromandel Proposed District Plan, Part II Section 10.3 Objective 4; Tasman Resource Management Plan, Policy 23.1.3.6. 446 Whakatāne District Plan, Rule 18.2.1. This applies with the defence is located in the coastal erosion risk zone and has the purpose to protect private or public land. 441

4.11

Choosing a Strategy: The Example of Cooks Beach Coastal Erosion. . .

241

Table 4.9 Cooks beach coastal erosion management strategy Option Status Quo Living with Coastal Erosion (Accommodate) Purchase of beachfront properties and rezone (Retreat) Frontal Seawall (Protect) Backstop wall, relocation, and land swap (Protect + Retreat)

Groynes plus nourishment (Protect) Offshore Breakwater and renourishment (Protect)

Short description Maintenance of existing structures Management of use and development to minimise risk to dwellings but does not include their protection Purchase at current market value, removal of dwellings and existing coastal structures, restoration of the natural dune and designation of the area as a reserve Construction of a seawall parallel to the coastline Wall located landwards and buried so only exposed during extreme storm events. Sand in front of the backstop wall serves as a natural dune buffer. Relocation of existing houses necessary to make room for the wall Counteract the strong net longshore sediment transport Reduce wave energy and building up a salient

coastal erosion should be managed in this location, a report was prepared on behalf of the Regional Council, assessing different strategies. At the time the report was prepared (2006), sea level rise was estimated to cause 15–20 m of beach erosion over the next 100 years on the Coromandel east coast, putting a number of coastal properties at risk.447 Table 4.9 shows the options that were considered.448 Taking into account a timeframe of 50 years, the options were assessed with regard to a multitude of different aspects, for instance:449 • compliance with national, regional and district policies, • impact on the Council (e.g. liability to undertake coastal protection works, longterm commitments to maintenance), • equity (balance of benefits for the wider community and private beachfront owners), • natural character, • effects on coastal flooding risk, • climate change, • reversibility of the option and costs. The “Backstop Wall” option, a combination of protect and retreat, was considered to be the preferable option, having not only the most positive and the least negative impacts in the conducted qualitative analysis but also the highest economic benefit within the considered timeframe of 50 years.450 Although the report took into account climate change as well as the reversibility of the chosen option which supports flexible adaptation, an assessment of preferable options in a 100-year 447

Environment Waikato (2006a), p. 1. Environment Waikato (2006a), p. 8 f. 449 Environment Waikato (2006a), pp. 10–13. 450 Environment Waikato (2006a), p. 17. 448

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timeframe might have turned out differently, thus creating the potential for maladaptation. To sum up, similar to the design of protection structures, there are almost no binding provisions but rather a strong reliance on expert knowledge.

4.12

Obligations to Protect Against Coastal Hazards

Whether positive obligation impact coastal adaptation was examined for the German legal framework.451 The next section examines the role of obligations established by the RMA and other Acts.

4.12.1 Obligations Under the RMA Under the RMA, the management of ‘significant risks’ from natural hazards is now a matter of national importance, this needs to be recognised and provided for when preparing a planning instrument, for instance, a NZCPS. Although the obligation is limited, coastal hazards need to be addressed at least to some degree. More specifically, regional councils and territorial authorities both have the function to control land use to avoid or mitigate natural hazards.452 However, even with regards to provisions that specifically enable the refusal of subdivision consents if the land for which a consent is sought is subject to material damage453 by erosion, inundation or other hazards, this is not seen as an obligation of the council to protect every part of the land within the subdivision from inundation.454 Furthermore, the Environment Court emphasized in one of its cases that “there is an element of ‘voluntary assumption of risk’ by people who choose to live near the coast [. . .] the Court’s concern must be whether such risk is acceptable on all of the facts presented to it, rather than whether such risk is able to be avoided absolutely.”455 Hence, the broader provisions of the RMA do—a fortiori—not require absolute risk avoidance.

451

See above: Sect. 3.8.1.4. Resource Management Act 1991: RMA, s 30 (1) (c) and s 31 (1) (b) (i). 453 “Material” is interpreted as “significant” or “relevant”, see: Carter Holt Harvey HBU v Tasman District Council [2013] NZEnvC 25 [2013] 17 ELRNZ 239 (EnvC), p. 260 f at [122–125]. The Court found that both interpretations were met in the case since a large part of the residential lot in questions were likely to be eroded or inundated within the 100-year timeframe required by the NZCPS. 454 Maruia Society Inc. v Whakatane District Council (HC), CP 162/88 on 08.03.1991, p. 27. A similar provision is contained in Resource Management Act 1991: RMA, s 106 (1). 455 Hemi v Waikato District Council [2010] NZEnvC 216 (EnvC), at [77]. 452

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In an earlier case, however, the Environment Court had held that “the voluntary assumption of risk by private property owners does not abrogate the Council’s responsibility of controlling the use of “at risk” land for the purpose of avoiding or mitigating natural hazards. [. . .] Failure to manage known actual and potential effects of natural hazards [. . .] under the Act’s regime would not, in our view, be consistent with the legislative purpose of sustainability.”456 In the same judgment, however, the Court emphasises that it did not have the authority to commit a council to the financial obligation and responsibility to undertake a public work like the reinstatement and maintenance of a seawall by a District Council.457 Read together, the judgments imply that the councils do have to address natural hazards to fulfil their obligation but they do not have to achieve absolute avoidance or mitigation. Furthermore, the local governments have discretion on how to achieve their function.

4.12.2 Positive Obligations Under the Local Government Act In a case about the denial of a building permit due to the land being subject to erosion, a provision of the Local Government Act 1974 on flood protection works was examined by the High Court. At the time of the judgment, the Act provided as follows:458 “The council may construct and maintain [. . .] any works or do anything necessary to prevent damage to any property [. . .] from floods of rivers or streams, or from encroachment of the sea.” Among other, the Court stated that the provision did not constitute a duty of the council to protect its ratepayers from the sea but transferred a power that could be exercised at the discretion of the council, which had concluded that protection works were not feasible.459 Since no duty arose from the specific power of local governments to construct coastal defences, no other conclusion can apply to the general powers conferred upon local authorities by s 12 (2) of the Local Government Act 2002.

456

Bay of Plenty Regional Council v Western Bay of Plenty District Council [2002] 8 ELRNZ 97 (EnvC), p. 109 at [34]. The Court furthermore took the RMA provisions dealing with the coastal environment and the NZCPS into account for reaching its conclusion. See also: Harker (2011), p. 307. 457 Bay of Plenty Regional Council v Western Bay of Plenty District Council [2002] 8 ELRNZ 97 (EnvC), p. 120 at [66]. 458 Local Government Act 1974: LGA 1974, s 469. This section was repealed in 2003 by the Local Government Act 2002. 459 Bosworth v Rodney County Council (HC), A 350/81 on 24.02.1983, p. 63 ff. A similar conclusion was reached by East Suffolk Rivers Catchment Board v Kent [1941] AC 74 [1940] 3 UKHL (HL).

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4.12.3 Positive Obligations Under the New Zealand Bill of Rights Act The long title of the New Zealand Bill of Rights Act does not only include the affirmation and protection but also the promotion of human rights and fundamental freedoms. This ‘duty to promote’ can be interpreted as a positive obligation to e.g. provide for an environment in which the rights protected by the Act can be ‘enjoyed to the greatest extent possible.’460 Arguably, such a general positive obligation is unlikely to reach beyond the specific obligation of local government to avoid and mitigate natural hazards.

4.13

Intersection with Nature Conservation and Protection of Coastal Landscapes

Rising sea levels will pressurize coastal ecosystems in several ways. First of all, sea level rise may submerge or erode habitats in the coastal environment. Second, adaptive responses like sand nourishments or the construction of hard defences can also have detrimental effects. Hence, nature conservation interest may contravene coastal adaptation. On the other hand, coastal ecosystems like mangroves can provide protection from coastal hazards. This section therefore addresses the manifold intersection of both areas, starting with addressing the RMA’s and the planning instruments’ regulation on nature conservation, in particular addressing adverse effects of adaptation action on the environment as well as the potential for synergy. In this context, different types of conservation areas are briefly introduced. Special regulations for the Hauraki Gulf are examined subsequently, before closing with remarks concerning the related protection of coastal landscapes.

4.13.1 Intersection with Nature Conservation Nature conservation issues may conflict or complement coastal adaptation. They are therefore important to consider for coastal hazard strategies, particularly since the preservation of the natural character of the coastal environment and the protection of significant indigenous vegetation and fauna are matters of national importance.461 In addition, the intrinsic values of ecosystems is a matter under s 7 of the RMA. More generally, sustainable management of resources as the guiding principle of the RMA 460

Butler and Butler (2015), p. 320 f. Resource Management Act 1991: RMA, s 6 (a) and (c). Furthermore, the intrinsic value of ecosystems are a matter to have particular regard to under Resource Management Act 1991: RMA, s 7 (d).

461

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includes avoiding, remedying, or mitigating adverse effects of activities on the environment.462 Environmental protection is, therefore, a “core element of sustainable management”, besides its use and development.463 Hence, this bears some similarity to the obligation to protect nature under German law.464 More important are the entailed impacts on activities, including adaptation action, within the coastal environment. On the national level, several NZCPS objectives and policies related to nature conservation address safeguarding the coastal environment and its ecosystems,465 indigenous biodiversity in the coastal environment466 and the restoration of the natural character of the coastal environment including e.g. the restoration and enhancement of habitats for indigenous species.467 As a higher-ranking planning instrument, these provisions need to be implemented by regional coastal plans and district plans and play a role for resource consent applications.468 The construction of a seawall in the coastal environment, for example, would—inter alia—have to avoid significant adverse effects and avoid, remedy or mitigate other adverse effects on coastal wetlands, dunes, and other coastal ecosystems.469

4.13.1.1

Adverse Effects on the Environment in Resource Consent Applications

Any application for a resource consent must include an assessment of the activity’s effects on the environment.470 This includes the assessment of the actual or potential effect of the activity on the environment and a description of mitigation measures to prevent or reduce these effects.471 The assessment must, inter alia, mandatorily address any risk through natural hazards or hazardous installations to the neighbourhood, wider community or environment.472 Assessing alternative locations or methods for undertaking the activity is only necessary if the activity will

462

Resource Management Act 1991: RMA, s 5. Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 (SC), p. 617 at 24. The Supreme Court furthermore clarified that “while” in s 5 means “at the same time as”, thereby ending an existing controversy. 464 See above: Sect. 3.9.1.5. 465 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Objective 1. 466 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 11. 467 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 14. 468 See above: 4.2.2.2. 469 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 11 (b) (iii); Tasman Regional Policy Statement, Policy 9.7.; Tasman Resource Management Plan, Policy 8.2.3.18.; Auckland Unitary Plan, Policy E18.3 (1). Waikato Regional Coastal Plan, Policy 3.1.4A (a). 470 See above: 4.2.3.2. 471 Resource Management Act 1991: RMA, sch 4 cl. 6 (1) (b) and (e). 472 Resource Management Act 1991: RMA, sch 4 cl 7 (1). 463

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have significant adverse effects on the environment.473 Thus, the assessment of alternatives is mostly not mandatory and generally does not play a major role in the resource consent procedure.474 With regard to the evaluation of adverse effects of the activity on the environment under s 104 (1) (a), s 104 (2) gives the consents authority some discretion since it permits (“may”) to disregard adverse effects if an activity with that effect is permitted by a national environmental standard or the relevant plan (‘permitted baseline’). In Kapiti Environmental Action v Kapiti Coast District Council, the Environment Court compared the environmental effects of a proposed campsite in a coastal environment characterized by dunes with the environmental effects of the permitted activities of production forestry and pastoral farming.475 The underlying rationale focuses on the adverse effect, assuming that if an activity with adverse effects is permitted by the relevant planning instruments, a different activity with the same effects should not be prohibited on these grounds either. Other or further adverse effects, however, still have to be considered.476 Furthermore, s 104 (1) (ab) requires the consent authority to have regard to positive effects on the environment that offset or compensate potential adverse effects resulting from allowing the activity.477

4.13.1.2

Synergies: Coastal Vegetation

An example of coastal protection and nature conservation addressed together, are provisions concerning the protection and management of vegetation in the coastal environment recognizing their role in coastal hazard mitigation.478 This is also reflected by making hazard mitigation one of the assessment criteria for vegetation removal as a discretionary activity.479 Other plan provisions may promote the maintenance and enhancement of coastal vegetation in areas at risk from coastal erosion.480 Specific regulations apply to the removal of mangroves481 since they reduce flood risk and protect the shoreline from storm surges.482 Consequently, the coastal protection purpose of this regulation also benefits nature conservation values.

473

Resource Management Act 1991: RMA, sch 4 cl 6 (1) (a). Marquardt (2014), p. 232. The work provides a thorough analysis of the assessment of alternatives under the RMA. 475 Kapiti Environmental Action Inc v Kapiti Coast District Council [2002] NZRMA 289 (EnvC), at [103–133]. In fact, the court compared the proposed activity to hypothetical permitted activities since neither was actually carried out. 476 Arrigato Investments Ltd v Auckland Regional Council [2001] 7 ELRNZ 193 (CA), p. 205 at [29]. 477 This paragraph was inserted on 18 October 2017. 478 Auckland Unitary Plan, Policies E15.3 (1) and (2), F2.7.3 (1) (b) and F2.9.3 (4) (b). 479 Auckland Unitary Plan, E15.8.1 and E15.8.2. 480 Tasman Resource Management Plan, Policy 23.1.3.7. 481 Auckland Unitary Plan, Activities F2.19.4 A45 to A50. 482 Field et al. (2014), p. 52. 474

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Summing up, nature conservation interests influence coastal adaptation to rising sea levels in various ways, including some potential for synergy effects.

4.13.1.3

Conservation Areas

Important instruments for nature conservation are protected areas. Conservation areas serve multiple purposes besides the protection and conservation of ecosystems and species, such as public access.483 If situated within the coastal environment, conservation areas can also (indirectly) serve coastal hazard protection through restricting development in the area or protecting the mitigating function of nature as, for instance, mangroves. In other words: they can function as buffer zones. Under New Zealand law, there are different Acts484 and different types of conservation areas established for different purposes. The Reserves Act 1977, for instance, aims at the preservation and the management of areas deemed valuable for various different reasons like recreational use, indigenous species, environmental amenity or natural character or the coastal environment.485 Restrictions (e.g. necessity for a consent) apply to buildings or other structures on conservation land486 and any use of or any building, vehicle, boat, caravan, tent, or structure located in a reserve.487 Similarly, any structure within a National Park488 requires a consent, unless they are located in a wilderness area, where they are prohibited.489 Moreover, management plans under the Reserves Act 1977 can address natural hazards that have an impact on reserves and can thus also be used to meet objectives and policies set out in planning instruments under the RMA.490 Consequently, there is some potential for synergies between conservation interests and coastal adaptation that is not yet used. Restricting land use at the coast for conservation reasons could be used as a no-regret-action where land is not yet at risk from coastal hazards.

4.13.1.4

Special Areas in the Hauraki Gulf

Special protection applies within the Hauraki Gulf Marine Park.491 In its preamble, the statute recognizes the quality and diversity of the Gulf’s biology and its

483

Wheen (2018), p. 930. E.g. National Parks Act 1980 Reserves Act 1977 Conservation Act 1987. 485 Reserves Act 1977, s 3 (1). 486 Conservation Act 1987, s 39 (f). 487 Reserves Act 1977, s 44 (1). 488 National Parks Act 1980, s 61 (5). 489 National Parks Act 1980, s 14 (2) (b) and (c). 490 Hanna et al. (2017), p. 9. Management plans are required by Reserves Act 1977, s 41 (1). 491 Hauraki Gulf Marine Park Act 2000, s 33 (1). The marine park was established by its own parliamentary statute. 484

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outstanding landscape, emphasising the diverse marine environment which includes the deep ocean as well as bays, inlets, the shallow sea and the intertidal flats of the Firth of Thames.492 S 7 and 8 of the Hauraki Gulf Marine Park Act have to be treated as a NZCPS for the coastal environment of the Hauraki Gulf.493 Both sections emphasise the national significance of the Gulf and establish the management objective of the marine park, e.g. the protection of the life-supporting capacity of the Gulf and the protection of natural, historic and physical resources. Local governments must ensure that their regional policy statements, regional and district plans do not conflict with these two sections.494 When granting resource consents, the consent authorities need to have regard to these sections as well.495 With regards to the part of the Hauraki Gulf Marine Park that is classified as a Ramsar site,496 relevant coastal plan provisions are more restrictive. Generally, the construction, placement, use or occupation of space by any structure (excluding flood and erosion control works) are classified as prohibited activities.497 Furthermore, disturbances and deposits to the foreshore or seabed are prohibited activities unless the quantity of the material is less than 50,000 m3 or if it concerns works for erosion or flood control.498 Reclamations, with the exception of small-scale reclamations, are also prohibited activities.499

4.13.2 Intersection with the Protection of Coastal Landscapes The protection of coastal landscapes also intersects with coastal adaptation. In particular, since man-made structures have a high visual impact which reduces the natural character of the coast, coastal landscape protection can include the avoidance of buildings and infrastructure along the coast, especially in areas that are considered to have an outstanding landscape.500 Under the RMA, the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and

492

Hauraki Gulf Marine Park Act 2000, Preamble. Hauraki Gulf Marine Park Act 2000, s 10 (1). In case of conflict, the NZCPS prevails, according to s 10 (2). 494 Hauraki Gulf Marine Park Act 2000, s 9 (2) and (3). 495 Hauraki Gulf Marine Park Act 2000, s 9 (4). 496 Other coastal Ramsar sites in New Zealand are: Manawatu River Mouth and Estuary, Farewell Spit and Awarua Wetland. 497 Waikato Regional Coastal Plan, Rules 16.4.13, 16.4.15 and 16.4.17. 498 Waikato Regional Coastal Plan, Rule 16,6,14. Furthermore, in case of extraction the removal must not be from an area of 4 hectares or more or that extends 1000 m or more over the foreshore or seabed. 499 Waikato Regional Coastal Plan, Rule 16.6.21. 500 Peart (2005), p. 52. 493

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development is defined as a matter of national importance as well as already mentioned preservation of the natural character of the coastal environment.501 Furthermore, the matters to have particular regard to under s 7 of the RMA include the maintenance and enhancement of amenity values. Moreover, the NZCPS also covers the preservation of coastal landscapes. Provisions include the preservation of the natural character of the coastal environment,502 the restoration or rehabilitation of the natural character503 and the protection of natural features and landscapes from inappropriate subdivision, use, and development.504 These objectives and policies are, for instance, given effect to by provisions that concern the preservation of the natural character and the protection of the natural features and landscape values of the coastal environment.505 Other provisions may require to avoid, remedy or mitigate adverse effects of coastal land uses, activities and development on the natural character of the coastal environment.506 Therefore, also not initially intended, this can also protect from coastal hazards by avoiding the exposure to coastal hazard risks. Similar to nature conservation, this provides some potential for synergy with coastal adaptation.

4.14

Liability

An important factor influencing the pursuit of coastal adaptation is the framework on the liability of the state and state agencies for inadequate action. Exposure to liability can be a means to ensure that responsibilities and functions are carried out with the necessary care.507 However, some effects may be detrimental. In Australia, the fear of legal action has made local councils reluctant to approve new developments that may be subject to future climate impacts.508

501

Resource Management Act 1991: RMA, s 6 (a) and (b). New Zealand Coastal Policy Statement 2010: NZCPS 2010, Objective 2 Policy 13. 503 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 14. 504 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 15. 505 The Waikato Regional Policy Statement - Te Tauākī Kaupapahere O Te Rohe O Waikato, Objective 3.7; Hauraki District Plan, 5.4.2 Objective 1 and Policies to implement objective 1. 506 Tasman Regional Policy Statement, Objectives 9.5 and 9.6 and Policies 5.5 and 9.3. 507 Todd (2016c), p. 16 f on the objectives of tort law. 508 McDonald (2015), p. 631. 502

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4.14.1 General With regard to personal injuries, compensation claims are generally barred by the Accident Compensation Act 2001, which provides cover for any person that suffers a personal injury in New Zealand.509 This, however, does not include claims related to damaged property.510 Similar to German law, there is no liability for legislative injustice but the underlying reason in common law is the supremacy of parliament that can do no wrong.511 As a consequence, actions that fall within the discretion conferred upon an authority by Parliament are also excluded from liability. However, where discretion is exercised ultra vires, liability in tort would not be excluded a priori.512 Hence, local governments could arguably be liable for zoning an area for new development clearly contrary to the NZCPS thereby disregarding their implementation obligation of the higher-ranking instrument.513 In their role as catchment boards, councils may also be liable for damage caused by negligent construction or maintenance of their banks, dams, sluices or reservoirs.514 The next paragraphs therefore briefly examine the requirements for liability in negligence as the probably most relevant tort.

4.14.2 Tort of Negligence The law of torts concerns the compensation of an injured party for a loss suffered through a ‘civil wrong’ other than a breach of contract or a breach of trust.515 Relevant in the context of coastal adaptation is the tort of negligence, which, in essence, deals with liability for losses due to a lack of care. This tort has the following four requirements:516

509

Accident Compensation Act 2001: ACC, s 317 (1). The details of the coverage are established by Accident Compensation Act 2001: ACC, s 20. 510 Explicitly: Accident Compensation Act 2001: ACC, s 317 (2) (a). 511 Mayo (1999), p. 131. 512 Markesinis (1999), p. 14. 513 Ministry for the Environment (2017b), p. 39. 514 This follows as an argumentum e contrario from the exclusion of liability contained in: Soil Conservation and Rivers Control Act 1941: SCRCA, s 148. See also: Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2011] 1 NZLR 120 (HC), at [132]. In this case, the Court found a breach of the duty of care concerning the monitoring and maintenance of a stopbank by the Council but did not regard the causation of damage to be proven by the applicants. The decision was confirmed in Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2013] NZCA 79 (CA). 515 Todd (2016c), pp. 1 and 8. 516 Todd (2016f), p. 149 f.

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1. the defendant owed the plaintiff a ‘duty of care’, 2. the defendant breached that duty, 3. the damage suffered by the plaintiff was caused by that breach of the duty of care, and 4. the damage was not too remote from the breach but a sufficiently proximate consequence. Possible cases where liability in the tort of negligence could arise with regard to coastal hazards can relate to inadequate protection structures, approval of a building consent on land prone to coastal hazards or erroneous information about coastal hazards on a land information memorandum.

4.14.2.1

Duty of Care

With regard to protection structures, there is no duty on the responsible local governments to erect such. However, if a council chooses to take action and does build coastal defences, the standard of reasonable care applies and may result in a negligence claim if disregarded.517 This could be the case if works fail their purpose because they were not built with due care or if the council negligently decided to only protect against a lesser flood, e.g. a one in a 50-year flood but a one in 100-years flood occurs.518 However, maladministration does not itself constitute a tort,519 council decisions on e.g. a certain level of protection or an adaptation strategy that turns out to be inadequate, resulting in further cost like the enhancement of a defence, do not give rise to liability on their own.

4.14.2.1.1

Proximity and Foreseeability

Constitutive elements of a duty of care are the foreseeability of damage and the degree of proximity between the defendant and the plaintiff.520 The requirement of foreseeability of harm excludes cases in which the loss suffered is an unlikely result of the act or omission that no reasonable person could have foreseen it.521 The prerequisite of proximity limits the scope of the responsibility, e.g. “a prison authority that negligently allows a prisoner to escape was found to owe a duty to those in the neighbourhood of the prison but not those far from the vicinity of the escape.”522 In general, New Zealand courts apply a two-stage approach when the existence of a duty of care is not covered by existing authority. First, the courts 517

East Suffolk Rivers Catchment Board v Kent [1941] AC 74 [1940] 3 UKHL (HL). Brennan (2015), p. 99. The article deals with river floods and uses a stopbank as example. This seems applicable to coastal protection works. 519 Attorney-General v Body Corporate 200200 [2005] 1 NZLR 95 (CA), p. 114 at [69]. 520 See for a detailed analysis: Todd (2016f), p. 158 ff. 521 Todd (2016f), p. 158 f. 522 Todd (2016f), p. 161. 518

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analyse the degree of proximity, second, they assess whether policy considerations prevent imposing a duty of care.523 In Attorney-General v Body Corporate 200200, the Court of Appeal applied the following criteria to determine whether proximity existed between the plaintiff and the defendant:524 (a) whether duties of care have been imposed in analogous situations (b) the substantiality of the nexus between the defendant’s alleged negligence and the plaintiff’s loss [. . .] (c) general considerations of vulnerability on the part of the plaintiff and the potential burden on the defendant [. . .] of taking precautions against the risk in issue [. . .] (d) the nature of the relevant risk. [. . .] Also relevant is the size of the class affected by the risk. The larger that class (and thus the more indeterminate the alleged duty), the less likely it is that a duty will be imposed. It is unclear how this test, in particular, the last criterion, applies in the context of coastal adaptation. If applicable, a duty of care to take adequate action to protect a community from coastal hazards exists would depend on the size of the class affected and could e.g. exist with regard to smaller settlements or neighbourhoods but not with regards to larger towns, where no duty would be the likely result due to the size of the class affected.

4.14.2.1.2

Policy Considerations

More generally, quasi-legislative or quasi-judicial functions are usually a strong argument against a duty of care.525 A local government exercises a quasi-judicial function, e.g. when deciding on a change of land use526 or on a resource consent application, since it is the local government’s obligation is to give effect to the RMA not taking care of individual needs.527 This roots in the axiom that it is not the role of a court to substitute a discretionary decision of a public body since the discretion assigns the decision to the public body. With regard to the implementation of such a decision, negligence is justiciable.528 The same rationale applies to regional and

523

South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd; Mortensen v Laing [1991] 2 NZLR 282 (CA), p. 283. 524 Attorney-General v Body Corporate 200200 [2005] 1 NZLR 95 (CA), p. 106 at [37]. 525 Attorney-General v Body Corporate 200200 [2005] 1 NZLR 95 (CA), p 112 f. at [62]. 526 Smaill v Buller District Council [1997] 1 NZLR 190 (HC), p. 206. 527 Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33 [2007] 13 ELRNZ 119 (CA), p. 134 at 54. Subsequently, the court affirms negating a duty of care due to policy considerations: Monticello Holdings Ltd v Selwyn District Council [2015] NZHC 1674 [2015] 2 NZLR 148 (HC), at [87]. 528 Todd (2016e), p. 349.

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district planning instruments at the discretion of the local governments since they assume a ‘quasi-legislative’ role.529 However, a duty of care can exist with regard to matters that are not discretionary but ‘operational’ or ‘administrative’.530 On the contrary decisions on building consents are administrative decisions.531 Henceforth, there is no liability in negligence for resource consents;532 but negligent approval of a building permit can result in liability.533 This could be the case if a building consent authority negligently grants a consent on land subject to natural hazards.534

4.14.2.2

Breach

The probability of the damage and the gravity of the risk are factors that determine the expected reasonable care, and thus whether a foreseeable risk of damage to the plaintiff arose from the defendant’s conduct.535 Whether an existing duty of care was breached is generally determined by reference to the objective standard of a reasonable person. With respect to professional persons, e.g. a doctor or engineer, the standard of care is the one “reasonable to be expected of skilled and informed members of their respective professions.” A similar standard of care applies to persons in trade or business. The standard of care is thus determined by the area where the defendant claimed as his or her area of competence.536 At least regular tasks like the decision on resource consents or providing Land Information Memoranda would certainly fall into the area of competence of a council. Whether or to what extent a property is subject to natural hazards, is generally a complex question. It is unlikely that a detailed scientific understanding of the council is required but rather the gathering of expert information, at least where this would be the reasonable thing to do for a council. Drawing on the recommendations of the Guidance Manual as ‘best practice’ to determine the standard of care seems obvious.

529

See with regard to regional and district rules: Rivers-McCombs (2011), p. 47. Craig v East Coast Bays City Council [1986] 1 NZLR 99 (CA), p. 107. 531 Harker (2011), p. 310. 532 Notwithstanding, the right of appeal to the Environment Court provides judicial redress, see above: 4.2.2.9. 533 North Shore City Council v Body Corporate 188529 (Sunset Terraces) [2010] NZSC 158 [2010] 2 NZLR 289 (SC), at [6] and [48]. 534 Unless it is satisfied that adequate action is taken to protect the land or building, the authority has to decline the consent, see above: 4.5.6.2. 535 Todd (2016d), p. 432 ff. 536 Todd (2016d), pp. 420–422. 530

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Causation and Remoteness

Furthermore, the negligent action must have caused the plaintiff’s loss. To determine this issue, the courts assess whether the plaintiff’s loss would have occurred without the defendant’s negligent conduct (therefore called the “but for” test). The defendant’s liability is limited to those damages that are considered as reasonably foreseeable consequences of the wrongdoing. An exception applies to intended consequences which are never considered to be too remote.537 Hence, any breach of a duty of care regarding inadequate adaptation would have to satisfy causation and foreseeability of the entailed loss.

4.14.3 Liability for Land Information Memoranda Councils can, for example, be liable if they do not disclose their knowledge about hazards, particularly in a land information memorandum.538

4.14.3.1

Duty of Care

When issuing a land information memorandum, territorial authorities are under a duty of care since proximity exists the issuing authorities and the person requesting a land information memorandum. Since the latter has to pay a fee, the relationship is “closely analogous to a contractual one.”539 A council breaches this duty of care where it provides incorrect or inaccurate information540 or where the wording of the land information memorandum is not clear and unequivocal.541 Similarly, councils are also under a duty of care when giving advice e.g. concerning property

537

Todd (2016a), p. 1098 f. and 1132 ff. In Resource Planning & Management Ltd v Marlborough District Council (HC), CIV-2001-485814 on 10.10.2003. the Marlborough District Council was found to have disclosed flooding and inundation issues through a brief, a land information memorandum and a subdivision consent notice. Therefore, the questions if the Council owed a duty to disclose information to the plaintiff had not to be answered by the Court. 539 Marlborough District Council v Altimarloch Joint Venture Ltd. [2012] NZSC 11 [2012] 2 NZLR 726 (SC), p. 766 at [85] and [86]. 540 Marlborough District Council v Altimarloch Joint Venture Ltd. [2012] NZSC 11 [2012] 2 NZLR 726 (SC), p. 727. Concerning a claim in tort for negligence. The claim based on the breach of a statutory duty was already dismissed by the Court of Appeal since the duty to provide information in a land information memorandum would not be an absolute and indefeasible one. See: Vining Realty Group Ltd v Moorhouse [2010] NZCA 104 [2010] 11 NZCPR 879 (CA), at [70]. See also: Saunders and Mathieson (2016), p. 1. 541 Henry v Auckland Council [2015] NZHC 435 [2015] 16 NZCPR 683 (HC), at [109 and 168]. In this case, the claim was denied because, among other reasons, the claimants’ reliance on the land information memorandum was unreasonable. 538

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information and may be liable for negligent advice.542 Since people often seek advice from their district council with regard to district planning and property information the liability issue is highly relevant.543 Liability could, for instance, arise where the requested land information memorandum did not state the risk of coastal flooding that the land was subject to although the competent council did have this information and after buying the property, the land and the house built on it are flooded.

4.14.3.2

Remedy

If liability is established, the subsequent question concerns the remedy. In most cases, the remedy for a tort is an award of monetary damages as compensation for the loss caused.544 The guiding principle for calculating the compensatory damages is to award the amount of money that is required to put the plaintiff into the position that he or she would have been in if the wrong had not occurred. Estimating the monetary value can be difficult in cases of intangible loss, like the inconvenience and anxiety,545 for instance arising from loss of or damage to a home. With regard to damage to land, usually, the amount by which the value of the land was diminished (the difference between the paid price and the market value) is awarded rather than the costs to reinstate the property to its former state. The latter may be granted if the plaintiff intends to restore the property and if it’s reasonable to do so.546 Where the land continues to be subject to coastal hazards, repairing the property will be unreasonable. Thus, in most cases, the damages will cover the loss of value of land. Liability is not excluded due to statutory immunity547 since the relevant provision does not apply to land information memoranda.548

542

Ivan and Barbara Court v Dunedin City Council [1998] NZRMA 312 (HC). The case concerned advice from a planner of the Council about the construction of a house on land that the plaintiffs wanted to sell. The Court applied the principles developed in Hedley Byrne & Co Ltd v Heller & Partners Ltd. [1964] AC 465 [1963] 3 WLR 101 (HL). The Court held that since the planner had special knowledge it was reasonable for the plaintiff to rely on her information. Since the planner knew that the plaintiff planned on selling the land it was clear that he was relying on her advice. See also: Henry v Auckland Council [2015] NZHC 435 [2015] 16 NZCPR 683 (HC), at [79]. 543 Harker (2011), p. 293. 544 Atkin (2016), p. 1306. 545 Atkin (2016), p. 1308. 546 Atkin (2016), p. 1315. 547 Local Government Official Information and Meetings Act 1987: LGOIMA, s 41. 548 See also: Vining Realty Group Ltd v Moorhouse. [2010] NZCA 104 [2010] 11 NZCPR 879 (CA), at [79 ff].

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4.14.4 Exclusion of Liability However, liability can be excluded by statutory immunity when issuing a building consent under s 72 or giving a notification under s 73 of the Building Act 2004. In these cases, the building consent authority is excluded from liability in civil proceedings brought by any person who has an interest in the building on the grounds that the land was subject or likely to be subject to natural hazards.549 Furthermore, liability can be excluded through contract.550 In Otago Regional Council v Dunedin City Council, the Court held that the risk assumed by the landowners to build a house on low-lying coastal land was not unreasonable but required a deed in favour of the Dunedin City Council by which the landowners and any successor acknowledge that they bear the risk of property flooding.551 Even where liability was not excluded by agreement, the plaintiff’s claim can be barred if he voluntarily assumed the risk that resulted from a breach of duty. The application of the volenti non fit injura doctrine (“no harm is done to one who consents”) requires that the plaintiff was fully aware of the factual circumstances as well as the inherent dangers and that he or she freely and voluntarily incurred the danger. Consequently, the standard is set very high and thus the doctrine does not often succeed.552

4.14.5 Summary As illustrated, liability can arise where protection works are constructed negligently or where building consent authorities negligently granted building consents in areas that are at risk from coastal hazards. In particular, negligent information on land information memoranda can result in negligence. With regard to land use regulation in regional and district plans as well as for decisions on resource consents, liability seems less likely since judicial redress is mostly achievable through appeal to the Environment Court. In these cases, tort liability could only arise where discretion is exercised ultra vires, but so far this issue remains unclear.

549

Building Act 2004, s 392 (2) to (4). Todd (2016b), p. 1181 f. 551 Otago Regional Council v Dunedin City Council [2010] NZENvC 120 [2010] NZRMA 263 (EnvC), at [82 f]. 552 Todd (2016b), p. 1176. 550

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Summary

In New Zealand, climate change adaptation is embedded in the “devolved system of local government management of natural resources and hazards” which also reflects the need for local adaptation options due to the variability of impacts.553 Up to now, coastal management is often handled ‘ad hoc’ by the councils,554 showing the need to shift to more proactive coastal adaptation. Generally, a mixture of coastal adaptation strategies is pursued around the country, with land use regulation being dominant. Despite similarities in the examined planning instruments, coastal adaptation varies between the different jurisdictions. As a result, there is no overall strategy but rather a ‘patchwork of strategies.’ More important, coastal management and coastal adaptation are regulated through a decentralized mosaic of provisions in different planning instruments, different rules applying in different zones and areas within one plan as well as different versions of plans (operative and proposed). Despite efforts to increase commonality among planning instruments, e.g. through planning templates, the regulation of coastal adaptation remains highly diverse and fragmented. Thus, the given examples of provisions cannot be described as ‘standard provisions’ but as stand-alone examples. Although councils have numerous possibilities to regulate coastal development and land use through regional and district plans, which allow taking into account the local coastal circumstances like topography and population, they seem to struggle to make adequate use of their regulatory freedom. However, the outcome of planning or resource consenting is influenced by several criteria. Most prominently, the RMA stipulates avoidance and mitigation of natural hazards as functions of the local governments and ‘significant natural hazards’ have particular weight as a matter of national importance. Higher-ranking planning instruments also set important guidelines. Nationwide, the NZCPS stipulates general directions, for instance, to adopt a precautionary approach with regard to the use and management of coastal resources that are potentially vulnerable to climate change impacts.555 Furthermore, under the NZCPS natural defences are preferable over hard protection works. In addition to the specific criteria, the general requirements of administrative law need to be taken into account, like the doctrine of ultra vires and the principle of reasonableness. An overview of the adaptation instruments is given by Tables 4.10 and 4.11.

553

Rive and Weeks (2011), p. 357. Thames-Coromandel District Council, p. 1. 555 New Zealand Coastal Policy Statement 2010: NZCPS 2010, Policy 3 (2). 554

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Table 4.10 Main adaptation instruments Main adaptation instruments Resource Management Act

Explanation Mandatory issues to consider and powers + responsibilities of local government

New Zealand Coastal Policy Statement Regional Policy Statements Regional (Coastal) Plans, District Plans

General directions (nationwide)

Resource consents

Decline resource consent or grant with conditions

Non-statutory

Coastal (hazard) management strategies

General directions (regional) Specific regulations, activity classes and zoning (regional/local)

Example S 6 (h) natural hazards as matter of national importance, S 31 function of territorial authorities, including regulating land use to avoid or mitigate natural hazards Direction to locate new developments away from areas at risk from coastal hazards Direction that district plans shall identify at-risk areas Definition of setback lines and coastal hazard areas, Assigning prohibited or non-complying activity status for coastal developments Conditions that mitigate natural hazard risk, requirements to use flood-resistant design Assessment and implementation of adaptation options

Table 4.11 Other adaptation instruments Other instruments Funding Building permits Coastal buffer zones Insurance

4.16

Legal provision Local Government Rating Act, Long-term and Annual plans S 71 (1) Building Act Sections 77 (1) (a), 230 (3), 232, 237B, 237E (1) and sch 10 of the RMA Earthquake Commission Act

Explanation/Example Allocation of funds to specific coastal adaptation projects Refusal of building permit on land subject to natural hazards Esplanade reserves Compensation for damage caused by natural hazards

Evaluation and Recommendations

This chapter has analysed the current legal framework for coastal adaptation in New Zealand, above all examining the dominating role of planning instruments in this field. As a final part of this chapter, the legal framework is evaluated and some recommendations for improvement are made. First of all, enhancing the responsibilities of the central government in order to provide more consistency within the country is discussed. Second and partly related to the first issues, ways to strengthen the position of local government with regards to coastal adaptation is examined.

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Third, general improvements of planning instruments are addressed, for instance with regards to a long-term oriented and flexible decision-making as well as better implementation of plan provisions. Fourth, the role of insurance is assessed under the aspect of resilience and maladaptation. Last, the section discussed whether compensation should be granted for managed retreat.

4.16.1 Revising Responsibilities Between Central and Local Governments With regard to hazard management, local governments are assigned the primary responsibility but a lack of funding and sometimes of expertise often impede the adequate identification of all hazards and effective adaptation in the region or district.556 Equally, the lack of funding affects the ability to finance adaptation strategies.557 The Councils’ lack of resources also impedes risk management or risk mitigation policies.558 Considering the range of local services that local governments are responsible for,559 climate change adaptation will often not be a priority. Furthermore, local governments have different approaches to climate change adaptation and thus lack a consistent strategy, which can create confusion for the public.560 In general, the plans prepared by the local authorities differ greatly from each other with respect to structure, form, and content, which is also timeconsuming and costly, especially for regional and national organisations that work with more than one plan.561 Moreover, having different assessment and implementation approaches results is inefficiency since the impacts of sea level rise are similar across the country.562

4.16.1.1

Lack of National Guidance

Hence, since sea level rise and coastal hazards affect communities across the whole country, greater consistency and more central government responsibility and guidance could support overcoming these discrepancies and difficulties resulting from the responsibility of local governments. There are many challenges that require an

556

Climate Change Adaptation Technical Working Group (2018), p. 41. Harker (2011), p. 288; Hanna et al. (2017), p. 17. 558 Stobo (2013), p. 11. 559 Territorial authorities, for instance, are responsible for roads, water supply, sewage, libraries and many other issues. See: Local Government New Zealand (LGNZ) (2017b) Local government basics. 560 Climate Change Adaptation Technical Working Group (2017), p. 53. 561 Ministry for the Environment (2017a), p. 6. 562 Climate Change Adaptation Technical Working Group (2017), p. 55. 557

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effective partnership between central and local government563 and coastal adaptation is definitely one of them.

4.16.1.1.1

Existing Instruments

Currently, the central government provides the legislative framework, mainly through the RMA, and has published some guidance in form of the Guidance Manual. Furthermore, the national government funds research concerning sea level rise and climate change adaptation but does not engage in coastal adaptation apart from that.564 The recently developed national planning standards aim at reducing the time and resources necessary for the development and use of plans as well as ensuring that national direction and good planning practice are implemented fast.565 However, the national planning standard only standardize the plan format but not the content.566 Thus, the more important issues of divergent contents and individual risk assessments and adaptation action will not be solved.

4.16.1.1.2

Proposed New Instruments

To achieve greater consistency with regards to coping with rising sea levels, a national adaptation strategy or plan could be developed. A national adaptation action plan could, among others, define outcomes, goal, and priorities for adaptation, clarify the responsibilities between central and local government, provide robust information about climate change impacts and use a 100-year planning timeframe.567 A different means would be the creation of national environmental standards with regard to sea level rise568 or a national policy statement for hazard management.569 The latter could, for instance, require territorial authorities to develop policies and rules for identifying hazards. Furthermore, a national methodology for risk assessments could make coastal hazard and climate change risks and vulnerabilities evaluations consistent and comparable.570 This could likely be implemented by amending the NZCPS accordingly. Consistency in risk management could also be

563

Department of Prime Minister and Cabinet (2019), p. 5. Climate Change Adaptation Technical Working Group (2017), p. 46. 565 Ministry for the Environment (2017a), p. 11 f. They came into force on 3 May 2019. 566 Ministry for the Environment (2019). 567 Climate Change Adaptation Technical Working Group (2018), p. 22. 568 New Zealand Society of Local Government Managers (SOLGM) (2015), p. 26; Rive and Weeks (2011), p. 367. 569 Harker (2011), p. 321. 570 Climate Change Adaptation Technical Working Group (2018), p. 25. 564

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achieved by including a definition of ‘risk’ in the RMA.571 Climate change impacts could also be directly evaluated by a regularly updated national risk assessment.572 Where areas are identified as being at risk from coastal hazards within the next 100 years, the outcome of such an assessment could then impact and support decisions under Policy 25 of the NZCPS. Furthermore, nationwide criteria on prioritising protection similar to Road of National Significance are considered to be useful.573 Adaptation guidance through statutory instruments could not only provide more consistency but also enable local governments to fulfill their role in coastal management, in particular giving them a better standing when confronted with community push-back.574 In any case, the quality of the content of any guidance material is more important than whether it is statutory. As seen from the different suggestions, the potential for national action is manifold. In addition to a greater involvement of the central government, inter-council cooperation should be strengthened as well.575

4.16.1.2

Funding

One of the most important ways that central government could provide help, is funding as a crucial factor for all adaptation actions. As mentioned before, local governments, at least in some cases, lack the funding to e.g. carry out adequate risk assessments.576 To meet the cost of adapting to sea level rise and to fund costly managed retreat strategies, central government funding is expected to be necessary since some councils will not have the required financial needs.577 Central government could (partially) fund particular activities, for instance, the development of local sea level projections.578 Funding for climate change adaptation could be improved by transforming the role for the Earthquake Commissions from providing insurance to fund managed retreat and other large-scale adaptations. Alternatively, a new fund with the only purpose to fund cost-effective climate change adaptation could be established.579

571

Saunders et al. (2015), p. 67. Climate Change Adaptation Technical Working Group (2018), p. 19. 573 New Zealand Society of Local Government Managers (SOLGM) (2015), p. 27. 574 See above: 4.6.1.2. 575 Local Government New Zealand (LGNZ) (2019), p. 10. 576 See above: 4.16.1. 577 Boston and Lawrence (2017), p. 18. 578 New Zealand Society of Local Government Managers (SOLGM) (2015), p. 27. 579 Boston and Lawrence (2017), p. 26. 572

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4.16.1.2.1

Shared Funding Framework

Such a central government fund could function similar to the German federal government funding and for instance include a system where local governments need to make contributions, too.580 A New Zealand example for shared funding between the central government and local councils exists with regard to building and maintaining local roads.581 This would not shift the entire financial responsibility to the central government and if local governments need to pay their share it is more likely that they will diligently select and design their adaptation projects. Moreover, the fact that the management of natural hazards is a responsibility assigned to the local governments by the RMA is an argument that the cost should not be borne by the central government alone. However, the shortcomings for the German funding system should be overcome and not be limited to technical defences but include all available adaptation options. Furthermore, there is no reason why the fund should be limited to coastal adaptation but could be set up broader and cover all climate change adaptation. On the other hand, a specialized fund for coastal adaptation could set out more specific funding guidelines which could e.g. refer to the planning timeframe or the robustness of the adaptation action under various sea level rise scenarios. Generally, any funding system should include guidelines on eligibility and terms of funding. For example, in case funding is given to a retreat project, the guidelines should e.g. include a provision that excludes speculators from making money by buying at-risk properties as well as setting out how the compensation is calculated. Similar to the German guidelines, nature conservation and other environmental issues could be included as criteria for funding.

4.16.1.2.2

General Challenges for Funding

In general, current funding mechanisms focus on post-event responses and not on pre-event responses that minimise risk. Therefore, changes of the funding system are recommended, that minimise adaptation costs in the long-term, encourage futureproof infrastructure and managed retreat and comply with intergenerational and intra-generational equity. Intergenerational equity could, for example, be achieved through a public fund based on imposing taxes today to cover adaptation costs tomorrow.582

580

See above: Sect. 3.3. Ministry of Transport (2019) Road funding in New Zealand. 582 Boston and Lawrence (2017), pp. 19–22. 581

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4.16.2 Strengthening Local Governments Other challenges for the local governments may not require that the central government takes responsibility but rather strengthening local governments. In Australia, unclear responsibilities, lack or limitation of financial capacity and expertise as well as concern about potential liability have been identified as barriers for local governments and their role for climate change adaptation.583 These findings are also applicable to the situation of local governments in New Zealand, where resource consent authorities try to avoid litigation by rather focusing on procedural compliance than on the quality of the outcome.584 Effective coastal adaptation, however, depends on local governments that are able to make the right decisions—even if they are controversial. Hence, providing a clear mandate for adaptation and setting a clear legal framework for liability, would enable coastal adaptation.

4.16.2.1

Clear Mandate for Climate Change Adaptation

Up to now, responsibilities of local government for climate change are derived from its obligation to promote “the social, economic, environmental, and cultural wellbeing of communities in the present and for the future.”585 This is linked to climate change impacts, like raising protective assets like seawalls and stopbanks.586 Furthermore, the local governments’ responsibility for avoiding and mitigating natural hazards has been examined above. Both, however, only indirectly relate to climate change adaptation. Amending the Local Government Act 2002 and explicitly assigning climate change adaptation as a function of local government, would give a clearer mandate to act and incorporate adaptation in e.g. land use planning, resource management, and building and construction.587 As a likely consequence, local governments would be increasingly aware of this task and adaptation action easier to justify.

4.16.2.2

Clear Legal Framework on Liability

Above the current legal framework on tort liability for councils was examined.588 Councils are often under pressure by developers to allow subdivision as well as by homeowners affected by including hazard information on land information 583

Ramm et al. (2018), p. 92. Local Government New Zealand (LGNZ) (2015), p. 27. 585 Local Government Act 2002: LGA, s 10 (1) (b). Up to May 2019 the provision was worded “good quality infrastructure to meet the current and future needs of communities.” 586 New Zealand Society of Local Government Managers (SOLGM) (2015), p. 11 f. 587 Climate Change Adaptation Technical Working Group (2018), p. 33. 588 See above: 4.14. 584

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memoranda. Therefore, they are asking central government to provide a legal basis that enables them to make and defend tough decisions.589 At the moment, councils are often caught between potential liability if they adopt strategies like erosion setback lines if private property rights are affected, and potential liability if they fail to comply with obligations like the land information memorandum. Apart from providing more certainty, a clear regulation concerning the councils’ liability with regard to coastal hazards would likely limit law suits and encourage the councils’ work in this field.

4.16.2.2.1

Transferrable Lessons from Australia

An example of how local government’s liability could be limited and adaptation encouraged is s 733 of the Local Government Act 1993 of New South Wales, Australia. Among others, the aforementioned provision applies to flood liable land and land in the coastal zone and exempts all councils’ actions and omissions done in good faith from liability. As examples, the provision explicitly mentions the preparation and adoption of a coastal management program, carrying out coastal protection works and the provision of information about climate change and sea level rise.590 Furthermore, the crucial term ‘good faith’ is rebuttably presumed if the councils’ action or omission was substantially in accordance with the current coastal management manual.591 Enacting a similar provision in New Zealand could refer to the Guidance Manual published by the Ministry for the Environment. If complying with the Guidance Manual results in an exemption from liability, it is very likely that councils would implement the Manual’s recommendations. With the certainty that liability is excluded, councils are more likely to be able to withstand push-back from beachfront property owners and other stakeholders as well as pressure from property developers. That strengthening of local governments is necessary is illustrated by the approval of major new subdivisions and developments in areas that will likely be at risk from coastal hazards due to rising sea levels within this century.592 To guarantee adequate consideration of new scientific understanding, the Guidance Manual should be updated regularly.

4.16.2.2.2

Standardizing Land Information Memoranda

Furthermore and specifically with regard to land information memoranda should be more standardized or could even be transferred to official national agencies to

589

Gibson (2018) No action on rising seas without law change. Local Goverment Act 1993, s 733 (3) (b), (f) and (f5). 591 Local Goverment Act 1993, s 733 (4). 592 Boston and Lawrence (2018), p. 42. 590

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provide official information on natural hazards.593 Proceduralising the assessment of natural hazards that must be included in land information memoranda—or at least establishing guidelines and setting standards—would provide more clarity for the councils’ obligations and their liabilities. Clear standards could thus reduce liability costs for challenges to the assessment outcomes and encourage the councils’ work. However, such a regulation should still be flexible enough to incorporate the best available knowledge or current good practices.

4.16.3 Planning Instruments Enhancing flexibility is also recommended with regards to planning instruments in general. Furthermore, strengthening long-term planning and overcoming difficulties in implementing plan provisions are also prominent.

4.16.3.1

Long-Term Approach and Climate Proofing

Although the NZCPS already sets a long-term oriented timeframe of at least 100 years for coastal hazard assessments and planning, the Local Government Act 2002 has a much shorter planning timeframe of 10 years (and 30 years for infrastructure), causing inconsistency in planning. Aligning both timeframes by raising the planning timeframe of the Local Government Act to 100 years could help to facilitate consistent foresighted planning.594 Furthermore, a long-term perspective could be introduced for resource consents and building permits as well. Potential changes in sea level and coastal hazard risk could be required to be taken into account over the duration of the consent or the expected lifetime of the structure. This could enable ‘climate proofed’ development.595 Currently, this is already the case where planning instruments require information on climate change impacts like sea level rise for the structure resource consent is sought for.596 Introducing a general requirement, however, would ensure that all activities that require a resource consent have regard to climate change impacts. However, this would have to occur in a manner that does not overburden the capacity of local governments. Furthermore, the existing regulation in s 71 of the Building Act 2004 could be amended to include potential natural hazards over the lifetime of a building or the next 100 years.

593

Saunders and Mathieson (2016), p. 57 f. Climate Change Adaptation Technical Working Group (2018), p. 33. 595 See for climate proofing in general: Sect. 3.12.7. 596 See above: 4.2.3.2. 594

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Dynamic and Flexible Decision-Making

Along with the long-term planning horizon, planning and decision-making frameworks should incorporate and take into account the dynamic nature of climate change. Up to now, decision-making frameworks in New Zealand mainly address climate change by using static single numbers, such as an estimation of the extent of sea level rise by 2050597 and thus fail to consider its dynamic nature in an appropriate way. However, risk and risk affected land will change in the future. Furthermore, most planning instruments only consider single hazard events and thus do not adequately take into account subsequent hazards or cumulative effects.598 This static approach can create the impression among decision-makers as well as communities that existing responses, like raising stopbanks or floor levels, will be sufficient and sustainable adaptation.599 Similarly, planning practice frequently uses projections based on historical data and ‘best estimates’ when working with hazard zones, setback lines or minimum floor levels; hereby creating lock-in effects and reducing the flexibility to respond to future climate change impacts.600 Furthermore, a dynamic decision-making approach could provide faster responses to changing risk than the current planning framework.601 Accounting for dynamic risks is difficult, particularly since decision-making processes and the evidence-based legal processes under the RMA desire certainty—as do politicians and communities.602 Therefore, it is important to enable more dynamic and flexible decisionmaking and planning processes. Thus, the recommendation of the Guidance Manual to use adaptation pathways is a good starting point but would be more effective and enforceable if it were implemented through RMA plans.603 However, it is yet to see how these recommendations will be implemented. In order to adequately reflect changing coastal hazard risks, the NZCPS’ policy on the assessment of coastal hazards could contain a fixed review interval similar to the EU Floods Directive. The 6-year period established there seems also suitable for the New Zealand context, especially since such an interval was established for the newly introduced national climate change risk assessment.604 Similarly, fixed review intervals should apply to setback lines and coastal hazard zones. In addition, plans rarely include monitoring provisions but with coastal erosion and coastal flooding

597

Rouse et al. (2016), p. 210. Saunders et al. (2015), pp. 66 and 72. This study analyzed all operative regional policy statement, district and unitary plans. Unitary plans were found to address cumulative hazards better than district plans. 599 Manning et al. (2015), p. 584. 600 Lawrence and Manning (2012), p. 24. 601 Climate Change Adaptation Technical Working Group (2017), p. 52. 602 Manning et al. (2015), p. 585. 603 Ministry for the Environment (2017b), p. 219. 604 Climate Change Response Act 2002, s 5ZQ (1). 598

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being the most monitored hazards in district and unitary plans with about 27.5%.605 Monitoring of coastal hazard risk could also be made mandatory and thereby support adaptation action with regard to plan reviews.

4.16.3.3

Changing Jurisdictions in the Coastal Marine Area and the Coastal Environment

Another challenge that could better be accommodated by a more flexible planning and decision-making regime as well as a long-term timeframe, relates to the likely changes of jurisdictional boundaries.

4.16.3.3.1

Coastal Marine Area

Since the landward boundary of the coastal marine area is constituted by the mean high-water springs, the boundary is a dynamic one and will change when the sea levels around New Zealand are rising. Therefore, parts of the land now adjacent to the coastal marine area may become part of it as sea levels rise. As a consequence, the responsible authority would shift to the regional councils and regional coastal plans would replace district plans as the relevant legal regime.606 Since the area would also no longer be subject to s 9 but s 12 of the RMA, a coastal permit instead of a land use consent would be required unless provided otherwise. Since the RMA strictly separates both areas and coastal permits cease to apply to reclaimed land,607 existing land use consents will most likely also cease to apply. Furthermore, existing use rights under s 10 of the RMA also only apply to land but not the coastal marine area.608 Hence, regional and district councils should accommodate these changes, for instance by aligning the provisions in their regional coastal plans and their district plans.609

4.16.3.3.2

Coastal Environment

Similarly, the coastal environment will be influenced by changing shorelines, creating further uncertainty about the scope of the NZCPS and many other planning

605

Saunders et al. (2015), p. 66 f. See also: New Zealand Society of Local Government Managers (SOLGM) (2015), p. 27. 607 Bayswater Marina Holdings Ltd v North Shore City Council [2009] 15 ELRNZ 258 (HC), p. 269. 608 With regard to regional plans, s 20A regulates existing lawful activities but the provision only refers to proposed plans until they become operative and therefore regulate a different situation than the change of jurisdiction. 609 Department of Conservation (2017), p. 22. 606

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instruments that refer to the coastal environment, apart from the existing uncertainty related to the missing definition of the coastal environment. More important than these legal considerations, the existing uses might be practically rendered impossible due to the rising sea level, e.g. a structure being permanently covered by water. Therefore, this might be a rather academic problem. However, it is possible that activities like sand extraction can be continued even after the land became part of the coastal marine area. Therefore, sea level rise does not only result in landward migration of the shoreline but also of the legal instruments regulating the coastal marine area and the coastal environment. This circumstance should thus be taken into account in long-term planning and decision-making.

4.16.3.4

Shortcomings of Implementing Plan Provisions

Despite plan provisions on avoiding increasing coastal hazard risks, when allowing development planning authorities sometimes disregard their own prior decisions. Hence, plan provisions are not always implemented. In Hahei Developments Ltd v Thames-Coromandel District Council, the Environment Court noted that the competent Town and Country Planning Appeal Board had emphasized the importance of a setback from the coast to provide for the preservation of the natural character and coastal erosion. The Court went on that “Given such a strong message in 1975 it puzzles us that more recently the Council has allowed some obtrusive villas (as recently as 1999) to be built on the top of the coastal dune. [. . .] It appears to us that Hahei might now be the better if the message from the 1975 case had been considered more carefully by the Council”610 Due to high pressure to approve development along the coast, often measures like approving the development outside the currently defined hazard zone are chosen to mitigate risk instead of avoiding areas at risk. This can be problematic since hazard zones may change e.g. due to changes in sea level and/or erosion rate.611 An example can be found again on the Coromandel Peninsula, where a major development was approved on land known to be at risk from flooding, based on a 16-yearold flood risk report that only took into account 0.49 m of sea level rise until 2100. Although the consent was granted under the condition of a minimum floor level and because a seawall was considered to guarantee an acceptable level of risk, those risks may change in the future.612 In this context, it would be helpful to require planning instruments to set out in detail what risk is acceptable and to whom the risk needs to be acceptable—leaving less discretion for resource consent decisions. To encourage a long-term focus, the

610

Hahei Developments Ltd v Thames Coromandel District Council (EnvC), C 176/2003 on 23.12.2003, at [34]. 611 Lawrence and Manning (2012), p. 21. 612 Gibson (2017) Drowning dreams: Apartment block where the waters meet.

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parameters could include the requirement that the risk needs to likely remain at an acceptable level for a certain amount of time, for instance, 100 years. Implementation could also be enhanced by providing immediate effect to hazard rules. As pointed out above,613 legally binding rules in regional and district plans usually do not enter into force once the plan is proposed but only after the proposing authority reached a decision on submissions made to the rule. As a consequence, it can take significantly longer until a rule becomes effective. The RMA establishes some exceptions where rules in proposed plans have ‘immediate legal effect‘614 and the Environment Court can order a rule to have immediate legal effect on application by the local authority.615 Adding hazard risk rules to the enumeration of rules that automatically have immediate effect,616 would speed up their implementation and could accelerate coastal adaptation.

4.16.4 Insurance 4.16.4.1

Transforming the Role of Insurance

The role of insurance could be developed from a mere instrument to spread risk into a tool that promotes adaptation to climate change in general and sea level rise in particular. The insurance industry could, for instance, encourage risk reduction by reducing the premium.617 In this context, a ‘resilience rating’ for buildings, similar to the rating system used for energy efficiency, could be developed and then used by the insurance industry to offer corresponding premiums and thus provide an incentive for adaptation.618 In this way, insurance could enable accommodation adaptation. Currently, most insurance policies rebuild the ‘status quo ex ante’ and thus preserve the same level of risk instead of promoting resilience and adaptation.619 Similar to insurance payout and voluntary compensation in Germany,620 this practice may result in maladaptation. Instead, post-disaster recovery, rehabilitation and reconstruction should reduce disaster risks by “Building Back Better.”621 In order to achieve this, land use regulation should ensure that after a storm event, rebuilding of 613

See above: 4.2.2.8. Resource Management Act 1991: RMA, s 86B (3) An example are rules protecting areas of significant indigenous vegetation. 615 Resource Management Act 1991: RMA, s 86D. 616 Lawrence and Manning (2012), p. 22. 617 The Geneva Association (2009), p. 64. 618 Schuster (2013), p. 137. 619 Schuster (2013), p. 138. This is also the case in New Zealand: Boston and Lawrence (2018), p. 43. 620 See Sects. 3.12.5 and 4.10.2.1. 621 United Nations Office for Disaster Risk Reduction (UNISDR), 19 (k) and 20 Priority 4. 614

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damaged houses and other structures only takes place if the reconstruction or new building accommodates the risk, e.g. through flood-resistant design. Rebuilding homes to similar or higher property values should be discouraged.622 Lessons can also be learned from the US, where the federal government as well as states like Florida, Texas or Louisiana subsidise insurance programs and offer insurance private insurance companies have withdrawn from. Even in case of so-called repetitive loss, the US federal government’s National Flood Insurance Program, for instance, enables rebuilding in at-risk areas instead of promoting a retreat strategy.623 Funding repairs or rebuilding in the same location without taking actions to increase resilience, e.g. through flood-resistant design is an example of maladaptation, particularly in cases of returning events triggering insurance claims. In other words: insurance is paying over and over again for the status quo.

4.16.4.2

The Earthquake Commission’s Role

At the moment, the Earthquake Commission can decline a claim if the record of title of land contains an entry under s 74 of the Building Act 2002.624 After the occurrence of a natural hazard, it seems likely that such a notification would be placed on a title. This, however, requires that the property owner applies for a new building consent to e.g. rebuild the house or if repairs require a new building consent since there is no provision on putting the information afterwards but requires the application for a building consent.625 Amending the law and allowing to place a notification without the need for an application could limit further claims and encourage resilience. Since the Earthquake Commission insurance is connected to private insurance, it seems likely that in many cases insurance retreat would also limit the access to Earthquake Commission money. Insurers are already withdrawing from some individual flood- and earthquake-prone properties, a trend that is likely to continue in the future. This could lead to pressure on the government to offer insurance or other financial help instead.626 As seen in the US example, New Zealand should not make the mistake to offer state insurance (either through the Earthquake Commission or other means) to provide insurance which is not sustainable in the long-term. If help is provided, it should be sustainable and improve resilience.

Keeler et al. (2018) Far-sighted adaptation to rising seas is blocked by just fixing eroded beaches. Craig (2018), p. 2f. 624 See above: 4.10.2.2.3. 625 Building Act 2004, s 72, 73 and 74. 626 Storey and Noy (2017), p. 73. 622 623

4.16

Evaluation and Recommendations

271

4.16.5 Compensation for Managed Retreat With respect to managed retreat, the question who should fund the relocation is usually the most critical one.627 In the light of increasing importance of managed retreat, the contentious issue of whether and to what extent it is appropriate to use ratepayer money to protect private property or pay compensation for relocations, needs to be answered.628 It should be the decision of the society if people living at the coast should get compensation, financial help to relocate away from the coast or they should receive the necessary information to make informed decisions and assume potential risks themselves.629 As mentioned above,630 especially smaller councils struggle financially and will not be able to offer to payout or assist property owners to relocate.631 As for the property owners themselves, not all of them may have the financial means to fund their own relocation since for most people their home is their most valuable property. Obviously, in cases of retreat, it is very unlikely that selling the property is a feasible option that covers the cost of a new home in a different place. Thus, although there might not be an obligation to compensate property owners under a managed retreat scheme, its success will in many cases depend on government funding.632

4.16.5.1

No ‘Bailout’

However, the community should not ‘bailout’ individuals’ bad decisions; therefore, compensation should take into account if landowners purchased the property knowing about the coastal hazard risks or if they were unaware, e.g. when the hazard increased over time, to prevent unduly benefit.633 Determining the point of time when a buyer had knowledge of the hazard risk may not be easy. Nowadays it seems hard to deny knowledge about rising sea levels and increasing coastal hazards but this does not automatically include knowledge about a particular lot being at risk.634 Putting hazard risk information on land information memoranda could be the determining factor for this since the potential risk is known latest at that point in time. On the other hand, it has already been noted that people living at the coast assume higher tsunami and other coastal hazard risks than people living further See for example: Carroll (2018) West Coast communities warned they must move from flood and erosion zones. 628 Hunter et al. (2010), p. 130. 629 Storey (2018b). 630 See above: 4.16.1. 631 Boston and Lawrence (2018), p. 43. The authors name Dunedin, the eastern Bay of Plenty and the West Coast of the South Island as examples. 632 Hanna et al. (2018), p. 20. 633 Harker (2016), p. 84. 634 Unless maybe a dwelling is already located right at the edge of a cliff. 627

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landwards.635 Arguably, people buying property at the coast should therefore have known about these risks anyhow. In general, clear criteria on how to determine whether the landowners either knew or should have known about the coastal hazard risk would be necessary to provide the councils as well as the coastal residents with legal certainty.

4.16.5.2

Compensation

If compensation is paid the next question arising is how to calculate the amount of compensation, especially how to assess the value of land. Under the Public Works Act compensation for compulsory acquisition, is usually based on the market value at a specific date (this can e.g. be determined by agreement) and does not take into account any increase or reduction in value that is due to the work or the prospect of the work.636 Applying this principle to compensation of managed retreat would mean that the loss of value of land that is due to the decision to retreat would have to be disregarded. However, if land is subject to coastal hazards, this risk should be reflected in the determination of the market value. In other words: there should be no advantage for property owners if their councils opt for a retreat strategy and their property was likely to lose value due to those threats. Similar to the approach taken by the Earthquake Commission to assess the value of land after the Canterbury earthquakes in 2010 and 2011,637 the calculation could be based on the current market value moderated by a buyer’s full knowledge about the land’s vulnerability to sea level rise and future erosion.638

4.16.5.3

Right of First Refusal

In order to implement managed retreat over time, a right of first refusal similar to the one under German law could be introduced.639 Due to the function for land use regulation, it would make sense to give this right to the territorial authorities. Through this means, a retreat strategy could be enabled over time. However, the use of such an instrument is subject to the availability of funding and the question of whether public money should be used to buyout coastal property owners.

635

Save the Point Inc v Wellington City Council (EnvC), W 82/07 on 20.09.2007, at [123]. Public Works Act 1981: PWA, s 62 (2) (b) and (c). 637 After the earthquake the Crown acquired most of the insured properties located in Christchurch’s “red zone”, Tower Insurance Ltd v Skyward Aviation 2008 Ltd. [2014] NZSC 185 [2014] 1 NZLR 341 (SC), at [1]. 638 Harker (2016), p. 83. 639 See above: Sect. 3.7.3. 636

4.17

4.17

Chapter Conclusion

273

Chapter Conclusion

From the analysis of this chapter, it has become clear that despite the apt content of provisions, local governments as the main responsible actors often struggle to make adequate decisions and implement them. As an island nation, coastal adaptation is crucial for New Zealand’s future. With the planning timeframe of a 100 years set out by the NZCPS, New Zealand (unlike Germany) already has a long-term focus for coastal adaptation to rising sea levels. Furthermore, in contrast to Germany, many planning instruments already discourage protection strategies and favour avoidance and retreat strategies.640 Moreover, local governments acknowledge the relative effectiveness and affordability of a protection strategy, stressing that a retreat strategy is the only long-term solution for areas prone to coastal inundation and erosion.641 However, as illustrated the actual implementation is more difficult. The Guidance Manual recommends that current decisions should regularly be examined as to whether they are flexible (no lock-in but measures can be adapted over time), they increase hazard risk and how they affect community values and vulnerabilities.642 It furthermore affirms that in order to deal with every possible velocity and magnitude of sea level rise, adaptation decisions need to be flexible, adaptive and adjustable.643 Consequently, the recommendation content is adequate to deal with arising uncertainties. However, it is yet to be seen if councils are able to implement this guidance successfully. Due to the existing provisions with regard to using long-term timeframes for planning and the recommendations for adjustable, flexible decision-making, as well as the already existing focus on land use planning, a paradigm shift like in Germany is not necessary with regards to reforming the law. However, as lack of implementation is one of the key points that emerged, strengthening local governments is essential to ensure effective coastal adaptation. In particular, giving a clear legal mandate for adaptation to regional and district councils as well as limiting their liability was presented as a means to enhance adaptation action. A second key challenge is greater consistency among regulations through national guidance as well as central government funding to overcome the lack of means in many communities. In addition, it is extremely important to communicate the coastal hazard risk and their expected exacerbation in the future to coastal residents and landowners. Since they will likely face significant changes in their communities, the potentially affected people need to know whether and to what extent they are at risk or will be at risk in the future. Up to today, risk is often not adequately reflected in insurance or land use regulation. Putting coastal hazard information on land information memoranda has just begun. All three mentioned tools can be used to send signals to coastal 640

See above: 4.11. Thames-Coromandel District Council, p. 7 New Zealand Society of Local Government Managers (SOLGM) (2015), p. 39. 642 Ministry for the Environment (2017b), p. 189. 643 Ministry for the Environment (2017b), p. 191. 641

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landowners. Along with a clear framework on the distribution of cost for any coastal adaptation strategy, risk communication is essential to enable coastal communities to make adequate decisions.

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Chapter 5

Comparative Aspects and Overall Conclusions

The first two chapters have outlined rising sea levels and coastal adaptation as the research’s common concern or the ‘tertium comparationis.’ Sea level rise is virtually certain and will continue even if mitigation efforts succeed, making adaptation in coastal zones inevitable. Germany and New Zealand will both experience an increase in coastal floods and coastal erosion as a consequence of rising sea levels. Hence, the two main chapters examined how both legal frameworks currently reflect the different coastal adaptation strategies of protection, accommodation, avoidance, and retreat and to what extent they consider rising sea levels. From this analysis, four key points emerged: First, adaptation action is manifold and includes action originally pursuing a different purpose, like for instance nature conservation areas at the coast that also avoid development in hazardous places. Second, protect strategies are currently dominant in both countries, although especially New Zealand’s local governments have a mandate to avoid further development in at-risk areas. Third, in the long-term coastal defences will not provide adequate protection in all coastal locations, making a paradigm shift necessary. Fourth, such a paradigm shift, along with an adequate long-term oriented planning timeframe as well as adjustable decision-making, is difficult to implement against short-term interests of coastal stakeholders. Fifth, sea level rise is considered more thoroughly in non-statutory documents than in legal instruments. This chapter therefore focuses on overall remarks on coastal adaptation and explores how a transition to a long-term oriented and ‘future proofed’ coastal adaptation strategy can be achieved. Common challenges do not only relate to taking a long-term perspective but extends to difficulties with retreat strategies, as well as aspects of equity and climate justice in the context of coastal adaptation. However, before drawing general conclusions, it is necessary to first understand the important differences between the German and the New Zealand system and the underlying reasons for the dissimilarities. Accordingly, the first part of this chapter examines, inter alia, differences in the coastal setting and the responsibility for coastal adaptation and planning law. This also includes highlighting similarities and differences © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5_5

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of a few areas of particular interest: the distinction of expropriation and land use regulation, state liability and the intersection of coastal adaptation with nature conservation, above all its potential to create synergies.

5.1

Notable Differences

Before coming to general conclusions, it is important to point out some of the differences regarding the coast and coastal management in both countries. This includes factual differences like different topography of the coast as well as legal and institutional dissimilarities like the distribution of responsibilities for coastal adaptation and fundamental characteristics inherent in the legal systems. Understanding these differences and putting them into context is essential before an overall conclusion can be drawn from the analysis of the two previous chapters. This section starts by addressing the differences in the topographic setting and coastal management as well as the diverging responsibilities for coastal adaptation. Planning law as a key instrument for transformation is examined more thoroughly, followed by parameters that influence the suitability of adaptation action in the local context and how this need for localized action is accommodated by law. The section closes with remarks on funding and hazard mapping as important preconditions for adaptation action.

5.1.1

Coastlines and Coastal Management

First of all, the coastlines differ from one another in both countries but also among the two German coastlines at the North and the Baltic Sea. While the North Sea coast is characterized by low-lying land protected by a continuous dike line, the coastline at the Baltic sea is more varied and partly protected by dunes. The much longer coastline of New Zealand varies even more from steep cliffs to low-lying parts.1 Furthermore, since the coastline in New Zealand is not armoured in many places and not all coastal areas are developed, landscape protection and amenity values play a much bigger role than in Germany.2 In particular, the German North Sea coast is contrarily continuously armoured. However, the hard defences there is the reason why the land is inhabitable at all. Therefore, at least in terms of avoiding hard protection structures or classifying them as ‘last resort’ as this is sometimes the case in New Zealand3 is not a valid option since they are already in place and a prerequisite for life in those coastal areas. Removing or relocating the dike line

1

See above: Sects. 2.2.5 and 2.2.6. See above: Sects. 4.5.3.2 and 4.13.2. 3 See above: Sect. 4.11. 2

5.1 Notable Differences

281

that protects an extensive low-lying area like at the North Sea coast affects more people and assets as this usually does in New Zealand, which is not as densely populated as Germany. Another difference to bear in mind is that coastal protection through dikes or dwelling mounds has a long tradition in Germany. Both of the aforementioned coastal adaptation actions were already used before any human being ever set foot on New Zealand soil. As apparent from the German chapter, coastal adaptation there focuses on technical flood protection and other strategies are mostly not perceived as an alternative option. This strong historical bias towards a protection strategy does not exist in New Zealand. Although coastal defences like seawalls are often chosen to protect coastal communities,4 it is not as dominant and most strategies on coastal management do consider several different strategies when discussing coastal protection. Thereupon, New Zealand certainly seems to be more open to other adaptation strategies than Germany.

5.1.2

Responsibility for Coastal Adaptation

5.1.2.1

Responsibilities in Germany

In addition to the distinctive coastlines, both countries differ with regard to organization and responsibility for coastal adaptation. In Germany, coastal protection is the responsibility of the states who draft the relevant legislation and develop general plans on coastal protection. Furthermore, state agencies often carry out coastal protection actions. Coastal defences and sand nourishments are also mostly funded by the states and the federal state together. Due to the significant federal funding, the federal state also has a say in coastal protection. With regard to spatial planning, the states also set the framework through state-wide land use plans, although the municipalities develop the only binding land use plans. Thus, the overall strategy is determined mostly by the states and the implications of positive obligations arising from the German Basic Law lead to a mainly protective strategy that aims at equal protection of every coastal settlement.5

5.1.2.2

Responsibility in New Zealand

In New Zealand, coastal adaptation is mainly the responsibility of the local governments. Although the national government provides some guidance, all decisions rest with the regional and district councils. Since every local government has to develop its own strategy and decide which adaptation option they choose, there is a lack of

4 5

For example, in Cooks Beach, see: Sect. 4.11. See above: Sect. 3.12.2.

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5 Comparative Aspects and Overall Conclusions

consistency among the different planning instruments and hence no overall strategy but rather a ‘patchwork of strategies.’

5.1.2.3

Coinciding and Diverging Responsibilities for Land Use Planning

Since the responsibility for coastal adaptation to rising sea levels lies with the local governments it is no surprise that there is a focus on adaptation through land use regulation as this is also within their competence and they have the tool at hand.6 This also applies to coastal defences, on which local governments decide through resource consents. Therefore, land use regulation through plans and the approval or rejection of hard or soft defences through resource consents are all in one hand. In addition, local governments are not only responsible for approving coastal defences but usually also fund them.7 This is different in Germany, where the responsibilities for coastal defences and spatial and land use planning are split. While decisions about coastal defences and sand nourishments are made on a State level8 and are subject to a project approval or a different permit from (usually) the competent water authority, spatial planning is the task of other bodies on different levels. The municipalities, for instance, are responsible for binding land use regulation and building permits. Hence, state actors and stakeholders perceive coastal protection, in principle, as a responsibility of the state authorities and their specialized agencies and not as part of municipalities’ array of matters. Unlike in the New Zealand system, there is not one authority deciding on all possible adaptation strategies. A fundamental discourse on the approach of coastal adaptation to be taken seems to be missing. Clearly, more coordination and cooperation between the different responsible actors is necessary if all available adaptation strategies are to be considered. All in all, coastal management responsibilities are distributed differently in Germany and New Zealand.

5.1.2.4

Sea Level Rise As a Parameter

With regard to considering sea level rise as a parameter, it is notable that in Germany it is not required by law to include this for the calculation of coastal defences, although the non-statutory general plans on coastal protection do. In other areas like spatial planning, rather general directives for preventive flood protection or climate change impacts exist, but without any reference to rising sea levels in particular.

6

Harker (2011), p. 280. The author even calls the regional policy statements, regional and district plans the ‘main method’ of the local governments to manage hazards. 7 See above: Sect. 4.4. 8 The allocation of defence works and sand nourishments are contained in the general plans on coastal protection.

5.1 Notable Differences

283

However, since the calculations of the necessary measurements for coastal defences are carried out by specialized state agencies (a technical, expert body) sea level rise is nevertheless included in the calculation. In contrast, sea level rise is explicitly addressed in the NZCPS, planning instruments and the national guidance manual, sometimes with detailed stipulations on the timeframe of sea level rise or the annual exceedance probability to be considered.9 Unlike a technical body/specialized agency, the local governments that are in charge of decisions on resource consents (thus assessing both structural defences as well as land use regulation) are subject to their election by the community, thus potentially facing pressure by voters. Additionally, since some local governments do not have expertise on coastal hazards and, more important, lack the funds for adaptation action including risk assessments, they rely on the directives and guidance for their decision making.

5.1.3

Planning Law

From the analysis above it is clear that land use regulation and planning law play the main role in the New Zealand adaptation context. With regards to German law, spatial and land use planning are not the main tool for coastal adaptation but still play a role and the potential of using spatial and land use planning instruments was pointed out. Due to its importance, this area of law deserves a closer examination. By contrasting planning law in Germany and New Zealand, similarities as well as differences become apparent. In both countries, several different, hierarchal instruments exist.

5.1.3.1

Hierarchy and Interrelation of Planning Instruments

In Germany, spatial and land use planning is based on plans scaling down from the whole area of a state (state-wide land use plans) to parts of a municipality (specific municipal land use plans). Although all instruments are connected, e.g. through obligations to adapt land use plans according to objectives of spatial planning,10 they each also exclusively determine some issues and have different purposes. The ‘mutual feedback principle’ (‘Gegenstromprinzip’) ensures that higher-ranking spatial plans take into account the circumstances and needs of lower-ranking spatial plans and general municipal land use plans and vice versa.11 Thus, other planning authorities participate in the plan preparation. More important, the interdependency

9

See above: Sect. 4.3. Federal Building Code: BauGB, § 1 (4). 11 Spatial Planning Act: ROG, § 1 (3); see above: Sect. 3.7.1.3. 10

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of plans on different scopes are part of weighing processes and play a role in discretionary decisions.12 Under the RMA, planning instruments only need to give effect to higher ranking planning documents13 and to have regard to the extent to which consistency with planning instruments of adjacent local governments is necessary.14 There is no obligation vice versa that would require higher ranking instruments to plans on a subordinate level.

5.1.3.2

Bindingness of Planning Instruments

In both countries mainly only the lower ranking planning instruments are legally binding15 but the extent of how binding the higher ranking instruments are, varies. This discrepancy may explain the differences in considering the circumstances and needs on a more regional and local scale. Although many provisions in Germany’s spatial plans are vague and often work as directives for the weighing process, they include regulating instruments with a far-reaching effect like the definition of priority areas and the importance of objectives of spatial planning. While priority areas exclude functions and utilizations inconsistent with their purpose, objectives of spatial planning are binding stipulations in spatial plans not subject to further weighing processes.16 In New Zealand, the only relevant central government planning instrument is the NZCPS. Both, national and regional policy statements are mostly guidelines for the subordinate regional and district plans. Only the regional and district plans can establish binding rules to implement policy statements.17 But, as already mentioned, national as well as regional policy statements can establish mandatory provisions that have the same effect as regional or district rules.18 However, the usage of this possibility is rare. Hence, since in most cases binding regulations on the central government level are absent, land use planning is determined by the regional and district plans, in particular by the latter. Land use, for instance, depends entirely on the regulation in the planning instruments and even with regard to the coastal marine area where the RMA prohibits certain activities these can be expressly allowed by a planning instrument or resource consent.19 Most

Runkel (as of 2018) § 1, paragraph no. 115. See above: Sect. 4.2.2.2. 14 Resource Management Act 1991: RMA, ss 61 (2) (b), 66 (2) (d) and 74 (2) (c). 15 This means the specific municipal land use plans in Germany and the Regional and District Plans in New Zealand. 16 See above: Sects. 3.7.1.2. and 3.7.2. 17 See above: Sects. 4.2.2.5 and 4.2.2.6. 18 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZLR, SC, p. 646 and 648. See also: Auckland Regional Council v North Shore City Council [1995] NZLR 18 (CA), p. 23. 19 Resource Management Act 1991: RMA, ss 9 and 12. 12 13

5.1 Notable Differences

285

of the RMA’s planning provisions relate to the procedure of plan preparation. In Germany, on the other hand, important planning regulations are made by federal and state laws, e.g. some basic principles of spatial planning are established by law or some restrictions imposed by the Federal Water Act and the Building Code.20

5.1.3.3

Relevant Actors

While in New Zealand the actors in planning law for the coast are the Ministry of Conservation (NZCPS), the Regional Councils and the District Councils, in Germany the planning regulations are contained as mentioned in federal and state legislation, state-wide and regional land use plans and the land use plans by the municipalities. Apart from two legislators and the municipalities, the responsibilities for spatial plans can be distributed among different authorities. Despite several levels of planning the emphasis in New Zealand is very clearly on the district plans, which usually make the ‘final decision.’ Although they need to implement the provisions of the higher ranking planning instruments, the rules having legal effect are contained mostly in the district plans. Planning law in Germany is more complex due to the different authorities and plans involved.

5.1.3.4

Impact on Individual Projects and Summary

Similar is that planning decisions on individual projects are influenced by the directives of the planning instruments. As in New Zealand decisions on a resource consent application, need to have regard to relevant provisions of the planning instruments,21 the objectives and basic principles of spatial planning are relevant for planning decisions and project approvals in Germany as they have to be taken into account for plans and measures of area significance.22 Hence, the scope in Germany is narrower than in New Zealand, where resource consents are in principle applicable to all sizes of projects, although minor activities may be exempt through a classification as ‘permitted activity.’23 In essence, both countries are characterized by hierarchical planning frameworks that mostly locate binding rules at the lower tier and ensure the implementation of higher ranking planning instruments. Regulations on higher levels, including planning directives established by law seem to be more frequently used in Germany than in New Zealand, where the focus lies on district plans.

20

See above: Sects. 3.6.1.3, 3.7.1.2 and 3.7.1.4. Resource Management Act 1991: RMA, s 104 (1) (b). 22 Spatial Planning Act: ROG, § 4 (1) cl. 1. Project approvals are usually required for larger projects and combine all otherwise necessary permits, see: Sect. 3.4.2. 23 See above: Sect. 4.2.3. 21

286

5.1.4

5 Comparative Aspects and Overall Conclusions

Local Context

As mentioned several times throughout the thesis, coastal hazard risk, like inundation risk, is different in every region, suburb and even every property.24 Therefore, there is no panacea for coastal adaptation but it depends on the local setting which adaptation strategy (or which portfolio of strategies) is the most suitable. The next section explores some of the key parameters for coastal adaptation as well as how Germany’s and New Zealand’s legal framework address the necessity for local solutions.

5.1.4.1

Parameters for Coastal Adaptation

Apart from obviously important physical conditions like the topography of the coast, non-physical conditions like institutional or societal requirements and barriers to coastal adaptation, either in general or to particular adaptation actions, determine the suitability of adaptation strategies.25 For instance, the settlement structure, nature, and level of coastal hazard risk, the availability of funding, as well as cultural values, influence coastal adaptation. Example: Heritage Sites In many coastal locations, not only developments and infrastructure are at risk but also heritage sites. Many UNESCO World Heritage sites located in coastal areas of the Mediterranean Sea are threatened by increasing coastal hazard risk due to sea level rise, like for instance the city of Venice.26 World Heritage Sites in Germany’s coastal zone include the Wadden Sea and historic town centers.27 In New Zealand, many Māori cultural heritage sites are located in low-lying coastal areas and are thus likely to be affected by sea level rise.28 Some adaptation strategies like spatial and land use planning or insurance are not viable options for World Heritage sites. While relocation may be possible for some monuments, it is unlikely to be an option for a whole historic town centre.29 Consequently, there is not just one single answer to how coastal communities around the world or even in the same country or region should adapt to rising sea 24

Harman et al. (2015), p. 790. Linham and Nicholls (2012), p. 104. 26 Reimann et al. (2018). 27 UNESCO World Heritage Centre ‘Germany’; see above: Sect. 3.9.2. 28 Climate Change Adaptation Technical Working Group (2017), p. 39. Maori heritage may impact coastal adaptation through Resource Management Act 1991: RMA, s 6 (e). 29 Reimann et al. (2018), p. 6. 25

5.1 Notable Differences

287

levels. Given that adaptation has to occur locally, legal frameworks need to be designed in a way that provides enough flexibility to enable tailoring adaptation to the relevant local context (e.g. topography, settlement structure, economic factors, cultural aspects). Finding local adaptation options may also provide important opportunities for community and stakeholder participation.

5.1.4.2

Reflection in the Legal Frameworks

With this overall observation in mind, the next section addresses how both legal systems studied take into account the local context for coastal adaptation. As there is no universal solution and no best option for coastal adaptation that would suit every coastal state or coastal community, there is no universal legal regulation to accompany coastal adaptation. Henceforth, adaptation needs to take into account the local circumstances like topography, settlement structure, and funding capacity, and find local answers for each section of a coastline. Equally, the law needs to take into account these differences and enable solutions suitable for the local context.

5.1.4.2.1

Devolution of Responsibility

The devolution of decisions to the local governments or states and municipalities is partly taking this into account. Assigning the main responsibility of the states in Germany, for instance, favours treating the coasts of the North and Baltic Sea according to their differences. The analysis of the German legal framework showed that Mecklenburg-Western Pomerania allows the retreat of the coastline (except where development needs to be protected). At the North Sea coast, however, retreat would mean removing or abandoning the maintenance of the continuous dikeline which would likely have a more extensive effect on the surrounding land. Due to the low-lying land giving up a section protecting agricultural land or greenfield could be detrimental for adjacent settlements. In New Zealand, the responsibility of the local governments allows for a localized adaptation strategy that can be designed for every community, e.g. through specific regulations in district plans. However, as apparent from the analysis, not all local governments have the expertise and/or the financial capacity to adequately make use of their regulatory freedom. Furthermore, councils often face considerable pressure from ratepayers not to establish land use restrictions that reduce property value.30 This illustrates that flexibility for adaptation action will often require directives and guidance on making use of the discretion provided as well as funding assistance for implementation. Funding is further addressed in Sect. 5.1.5.

30

See for an example of pushback concerning coastal erosion zone: Weir v Kapiti Coast District Council. [2013] NZHC 3522 [2013] 15 NZCPR 28–43 (HC).; Coastal Ratepayers United Inc v Kapiti Coast District Council [2017] NZEnvC 31 (EnvC). See also above: Sect. 4.6.1.2.

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5.1.4.2.2

5 Comparative Aspects and Overall Conclusions

Theoretical Flexibility of New Zealand’s Planning Instruments

As most of the regulations are established by the planning instruments, in particular, the district plans, changed circumstances or transitioning to a different strategy can be accommodated relatively easily. Like other statutory instruments or local bylaws, planning instruments can be amended or revoked easily and faster than a parliamentary statute, hence making it more flexible than legislation. Furthermore, as delegated legislation, planning instruments can incorporate expert and local knowledge.31 In fact, changing and amending plans can be considered as a day-today business for councils.32 Despite the theory, in practice plan changes take on average 2 years to become operative.33 Consequently, New Zealand’s regulatory approach can be considered as more flexible compared to Germany, where the regulations are more static since many directives and requirements are set by law, the shared responsibilities as well as the non-statutory general plans on coastal protection that are not intended for (constant) amendment.34

5.1.4.2.3

Uniform Coastal Adaptation in Germany

In Germany, coastal adaptation is more uniform. Notably along the North Sea coast of the mainland, the response is a single one: protection through dikes and foreshore protection. Local conditions are only taken into account by using the local parameter of storm tide water levels for calculating the dike height but not on the decision level for strategies. This may be due to the rather uniform, low-lying coastal zone that requires a coordinated strategy since one ‘weak spot’ (overtopping, breach) can also lead to flooding in adjacent areas. Although not protected by a continuous dikeline, coastal settlements along the Baltic Sea are also protected by dikes, dunes and regular sand nourishments to guarantee the existing protection level. However, this does not only lead to a dependency on those defences but also misses opportunities to introduce new strategies and e.g. combine accommodation options that reduce the necessary dike height and the aforementioned dependency. As a result, the focus on limiting the likelihood of an event through protection works neglects reducing vulnerability as well and thus impedes achieving comprehensive risk reduction.

31 Elliott and Quinn (2004), p. 62 f. Although the book is on English law, this is applicable to New Zealand law since the fundamental features are the same. 32 Therefore, the RMA’s regulation on the procedure to prepare regional policy statements and plans includes their change, see: Resource Management Act 1991: RMA, sch 1 part 1. 33 Local Government New Zealand (LGNZ) (2015), p. 27. 34 German municipal land use plans are also frequently amended but they do not possess the same regulatory scope as New Zealand district plans.

5.1 Notable Differences

5.1.4.2.4

289

Summary

Federal or central government regulation is, however, necessary to provide an effective framework and set common standards, which also enables an easier comparison of strategies. The absence of central government directions can make a system ineffective as for example in New Zealand where every district council needs to come up with its own definitions and hazard assessments.

5.1.5

Distribution of Funding for Coastal Adaptation

As for most issues, funding also plays a major role for coastal adaptation. The availability of funding for particular adaptation action determines the feasibility to a great extent. Due to this importance, the distribution of funding for protection works was analysed for both countries.

5.1.5.1

Germany

In Germany, most of the expenses for protection works are paid for by the state. However, the private landowners are contributing to the maintenance costs since they are part of an association for dike maintenance and need to make contributions there.35 Although most responsibilities are carried out by public authorities, the Lower Saxony Dike Act still stipulates that it is the obligation of the landowners to maintain the dikes and floodgates that protect them.36 Other State Water Acts enshrine the principle that landowners can be obliged to contribute to the extent that they benefit from the protection works.37 Consequently, this is a traditional root of coastal protection at the German North Sea coast. This could imply that private landowners should contribute to other adaptation strategies as well. For instance, to flood-resistant design of public infrastructures like roads or financial contributions in case of retreat. Currently, most of the protection cost is attributed to the states, but increasing costs are likely to entail discussion whether this arrangement should remain. Arguably, from a point of social justice landowners in the coastal zone have already benefitted from the state paying for coastal protection for centuries, being privileged with regards to other regions.38

35

See above: Sect. 3.4.1.1. Lower Saxonian Dike Act: NDG, § 6 (1) cl. 1. Similarly: Schleswig-Holstein State Water Act: WasG SH, § 57 (1). 37 Bremen State Water Act: BremWG, § 71 (1) cl. 1; Schleswig-Holstein State Water Act: WasG SH, § 60 (5) cl. 1. 38 See also below: Sect. 5.5.11. 36

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5.1.5.2

5 Comparative Aspects and Overall Conclusions

New Zealand

In New Zealand, the action taken by the councils can be funded through targeted rates based on a particular activity like the construction of a seawall, which can also be based on the level of benefit obtained by the work. The funding may also be combined by a mixture of targeted rates based on the advantage and a general rate applying to the whole district.39 Due to the responsibilities of the local governments, the costs fall more on the affected districts than in Germany, where federal funding makes a substantial part of the funding of coastal protection works. With the funding on the local government level, the financial means and thus the adaptation options available vary from council to council.

5.1.5.3

Linkage to Responsibility for Coastal Adaptation

The funding systems mirror the perception of responsibility for coastal protection in both states. In Germany, although the states are the main actors, the contribution of federal money (usually 70% of the cost) reflects the perception as an issue concerning the whole nation, e.g. the economic significance of the ports for the industry as well as Germany’s characteristic as a ‘protective state’ concerning people’s rights. In New Zealand, although a concern along the entire coastline of the island state, coastal hazards are dealt with as a local issue. As already mentioned, this puts councils under pressure from ratepayers opposing adaptation action that would be detrimental for property values. The divergent funding systems support the finding that adaptation is more localized in New Zealand and stronger affected by funding concerns. As a consequence, conflicts are more apparent in New Zealand while these are muted by the ‘cross-subsidizing’ of coastal protection in Germany. In summary, funding is much more a concern in New Zealand where local governments are responsible for coastal adaptation and have less financial means than the federal states and the states in Germany, where funding is ensured for protection works.

5.1.6

Differences in Coastal Hazard Mapping

Another key factor for any adaptation action besides funding is knowing the extent of the risk that must be dealt with and to identify at-risk areas. Hence, coastal hazard mapping is vital.

39 For instance, the Napier City Council currently debates funding distribution for a new revetment. Splitting the cost between the public and private property owners is proposed as 97% public but with a share of 300 NZD per annum for 12 mostly benefiting landowners, see: Napier City Council (2018), p. 6 f. See above: Sect. 4.4.1. 300 NZD equal about 166,59 €.

5.1 Notable Differences

5.1.6.1

291

Differences in Coastal Flood and Erosion Risk Assessment

While flood maps and flood hazard maps are mandatory and thoroughly regulated in Germany, there are fewer regulations under New Zealand law, in particular in the NZCPS. This also reflects the different responsibilities for coastal adaptation as explained above. While coastal hazard maps in New Zealand usually address coastal flood as well as coastal erosion risk, in Germany flood risk and flood hazard maps prepared under the Floods Directive exclusively focus on flood risk. This is in line with the observation that up to now, Germany only allows the retreat of the coastline in unpopulated areas in Mecklenburg-Western Pomerania. Erosion is rather seen as a safety issue of coastal defences and a parameter for the extent of sand nourishments required to ‘hold the line.’ From the perceptive of a protective approach, it seems unnecessary to establish erosion lines like the ones in New Zealand and restrict land use in erosion hazard zones since the assumption is that the coast is to be defended and kept in the same place as it is today.

5.1.6.2

Use in Planning Law and Judicial Review

Another distinction about coastal hazard maps is their use in land use regulation. Probably due to the emphasis of coastal hazard management by regulating land use, the areas defined as (potentially) at risk of coastal erosion or flooding are often used for zoning purposes and according land use restrictions in New Zealand district plans. In Germany, the existing flood risk and flood hazard maps are not used for spatial or land use planning.40 Up to now, no flood risk or flood hazard map was judicially reviewed in Germany.41 This is due to the fact that it is only reviewable incidentally,42 and since land use planning does not incorporate the maps, the opportunities for judicial review are limited. Furthermore, due to the emphasis on a protection strategy and the entailed public perception of safety likely safeguards coastal land from losing value. This is contrary to New Zealand’s situation, where coastal hazard assessments have been reviewed by court when used in district plans or on land information memoranda.43

40

See above: Sect. 3.12.7.3. VGH Baden-Württemberg, Urteil on 10.06.2010, BeckRS (2010) 50785. The case references flood hazard maps but the court contents itself to say that there are no indications at all suggesting that the maps are incorrect. 42 See above: Sect. 3.4.2.3. 43 E.g. Weir v Kapiti Coast District Council. [2013] NZHC 3522 [2013] 15 NZCPR 28–43 (HC). 41

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5 Comparative Aspects and Overall Conclusions

Distinction Between Land Use Regulation and Expropriation

Like other legal systems, German and New Zealand law differentiate between land use regulation and expropriation, limiting compensation to the last mentioned.44 Consequently, this influences the possibilities and conditions, such as the economic feasibility of adaptation options.

5.2.1

Germany

5.2.1.1

Formal Distinction and Consequences

Consistent with the general characteristic of the legal system, the distinction between land use regulation and expropriation in German law is quite formal and doctrinal. Compensation is mandatory for expropriation due to the protection by the Basic Law but not for land use regulations as definitions of content and limits of property, except for extreme cases.45 Definitions of content and limits of property are less restricted than expropriation but still need to comply with legal restrictions like the principle of proportionality. Due to the formal distinction, an unlawful definition of content and limits of property, e.g. a land use regulation prohibiting land use in an excessive manner, does not entail compensation but renders the regulation void.46 Correspondingly, the affected property owner must employ a legal remedy otherwise the compensation claim is barred.47 Expropriation and definitions of content and limits of property are reviewable in court.

5.2.1.2

Wide Discretion of Planning Authorities

An important restriction exists in the context of planning and land use regulation, in particular by the municipalities. Compared to other administrative authorities, planning authorities enjoy a wider discretion (Planungsermessen). Since their main task is to balance different interests, the standard of judicial review is restricted but the

44

Belfast Corporation v O. D. Cars Ltd. [1959] AC, House of Lords, especially p. 492, 503 and 503. Although a case from Northern Ireland, the judgment is insightful for the New Zealand context. See specifically for New Zealand: Barton (2003), especially pp. 396 f. For Germany see: Sects. 3.5.2 and 3.5.3. 45 See above: Sects. 3.5.2 and 3.5.3. 46 Papier and Shirvani (as of August 2018) Art. 14, paragraph no. 451. 47 BVerfG, Beschluss on 15.07.1981, NJW (1982) 745 (Grenzen der Grundwasserbenutzung), p. 747. So called ‘primacy of primary legal protection’ (‘Vorrang des Primärrechtsschutzes’).

5.2 Distinction Between Land Use Regulation and Expropriation

293

weighing process is still subject to review.48 Any natural or legal person that claims an infringement of a right49 by a land use plan can submit an application for review to the Higher Administrative Courts.50 Hence, the review of land use plans other than specific municipal land use plans is limited to their binding regulations or to incident review when e.g. applying for a building permit.51 In fact, the judicial review is split into the comprehensive examination of binding legal requirements like procedural rules or binding stipulations of higher-ranking plans and the restricted control of the weighing process. This applies to project approvals, land use plans as well as spatial plans, but the discretion is wider on higher levels of planning.52 The judicial review of the weighing process is characterized by dogmatic fragmentation and includes the selection of relevant concerns and actual weighing. The latter involves whether there has been a weighing at all (Abwägungsausfall), whether concerns were not considered although they should have been (Abwägungsdefizit), whether concerns were objectively given the wrong weight/importance (Abwägungsfehlgewichtung) and whether concerns were adequately balanced (Abwägungsdisproportionalität).53 Not considering suitable alternative planning options can also constitute an error in weighing.54 Despite errors in the weighing or procedural mistakes, plans are usually not void but are instead either remediable or insignificant.55

5.2.2

New Zealand

5.2.2.1

Compulsory Acquisition

New Zealand also distinguishes between expropriation (or rather compulsory acquisition) and regulation of property. Although compensation for expropriation in New Zealand is not obligatory due to the supremacy of Parliament, in the absence of an explicit statement, however, the presumption applies that Parliament did not

48

BVerwG, Urteil on 12.12.1969, VerwRspr (1970) 571, p. 572 f.; Künnecke (2006), p. 80 f. Code of Administrative Court Procedure: VwGO, § 47 (2) cl. 1. It is also sufficient to claim an infringement of a right in the foresseeable future. 50 Code of Administrative Court Procedure: VwGO, § 47 (1) No. 1 and 2. No. 1 concerns specific municipal land use plans while No. 2 usually to other land use plans. 51 BVerwG, Urteil on 16.04.2015, ZUR (2015) 602. 52 Schmidt-Aßmann (as of August 2018) Art. 19 (4), paragraph no. 209 ff. 53 Gerhardt (as of May 2018) § 114, paragraph no. 37. 54 BVerwG, Urteil on 30.05.1984, NVwZ (1984) 718 (Planfeststellung für einen Verkehrsflughafen—München II), p. 722. 55 Schmidt-Aßmann (as of August 2018) Art. 19 (4), paragraph no. 213 ff.; Federal Building Code: BauGB, § 214 establishes this for land use plans and Federal Administration Act: VwVfG, § 75 (1a) for project approvals. 49

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intend to take away property without compensation.56 In New Zealand, the power for compulsory acquisition is conferred by statute.57 Although acquiring authorities are usually empowered to take as much land as they judge to be necessary for the statutory purpose, their power is limited to what can reasonably be considered necessary as they would otherwise act ultra vires.58 The New Zealand Public Works Act stipulates that a notice of intention to take land needs to include “the reasons why the taking of the land is considered reasonably necessary” among others.59 In the absence of a written, higher ranking constitution like the German Basic Law, administrative action is only void in law where the public authority acts outside the powers conferred to it by Parliament. Acting ultra vires is not limited to obvious inconsistencies with a statute like violating an expressly prescribed procedure but includes, among others, unreasonableness and irrelevant considerations.60 A coastal example for the application of reasonableness can be found in the UK. There, compulsory purchase of land under the Coast Protection Act 1949 was quashed by the Courts as it was only necessary for a paved promenade but not for coastal protection and hence ultra vires.61 This principle seems transferrable to the New Zealand context, but the control of expropriation extends further due to statutory law. Under the Public Works Act, every person having any estate or interest in the land intended to be taken can object to the Environment Court.62 Among other, the court has the power to determine whether it considers the taking of land as fair, sound and reasonably necessary for achieving the objects of the public work.63 Unlike in Germany, compulsory acquisition is possible for any public work and not restricted to the public good. This is not particular to New Zealand but also the case in English common law in general.64

56

Belfast Corporation v O. D. Cars Ltd. [1959] AC, House of Lords, p. 509. Although the case concerned a statute of Northern Ireland, the cited section concerns general aspects of common law and is applicable to New Zealand. See also: Sect. 4.7.2. 57 E.g. Public Works Act 1981: PWA. 58 Wade and Forsyth (2014), p. 349. 59 Public Works Act 1981: PWA, s 23 (1) (b) (iii). 60 Wade and Forsyth (2014), pp. 27–30. The authors call this the central principle of administrative law. 61 Webb v Minister of Housing and Local Government [1965] 755 WLR 259 (Court of Appeal of England and Wales), p. 260. 62 Public Works Act 1981: PWA, s 23 (3). 63 Public Works Act 1981: PWA, s 24 (7) (d). 64 Mayo (1999), p. 151. See above: Sect. 4.7.2.

5.2 Distinction Between Land Use Regulation and Expropriation

5.2.2.2

295

Land Use Regulation

In contrast to the well-protected rights concerning the compulsory taking of property, the extent of acceptable non-compensable land use regulation is unclear.65 Generally, the RMA presumes “An interest in land shall be deemed not to be taken or injuriously affected by reason of any provision in a plan unless otherwise provided for in this Act.”66 Hence, land use regulation in planning instruments is predominantly not regarded as compulsory acquisition. Since the common law presumption of compensation only applies to expropriation, this does not apply to the regulation of property by planning legislation.67 Similar to German law, an unlawful regulation of property does not amount to a compensable taking thus the landowner may only seek invalidation of the restriction in court.68 Land use regulation, however, needs to be lawful. For imposing conditions in a resource consent, for instance, this requires a statutory power to impose the condition, meeting any statutory requirements as well as the common law requirements of: (1) conditions need to be imposed for a planning purpose, (2) conditions must be fair and reasonably related to the permitted development and (3) they may not be unreasonable.69 Land use regulation in New Zealand is also subject to the ultra vires doctrine. However, plan making does entail discretion of the council. The doctrine that powers must be exercised reasonably can conflict with the equally important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision.70 Interestingly, the RMA grants extensive appellate powers to the Environment Court. Whereas judicial review under common law is limited to examine the legality of an administrative act, the court examines the merits of a decision on appeal and may substitute the decision with its own.71 As the RMA establishes a right to appeal to the Environment Court not just for resource consents72 but also for policy statements and plans, judicial control of the last mentioned includes examining

65

Boast (2013), pp. 172 f. and 175. The author points out that this is similar to the legal issue of regulatory takings under US law. The ‘taking doctrine’ does not apply in New Zealand, see: Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33–61 (SC), at [45 ff]. 66 Resource Management Act 1991: RMA, s 85 (1). 67 Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33–61 (SC), at [47]. 68 Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33–61 (SC), at [48]. 69 Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33–61 (SC), at [61]. 70 Wade and Forsyth (2014), p. 302. 71 Wade and Forsyth (2014), p. 26 f. Under judicial review, the court may only uphold or quash the decision. 72 Resource Management Act 1991: RMA, s 120. The right is, however, limited to non-complying activities for, among others, subdivision.

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whether these implement higher planning instruments. Anyone who made a submission to the proposed policy statement or plan has the right to appeal.73 The Environment Court may direct the local authority to amend its proposed instrument.74 Hence, the Environment Court can replace the local authorities’ decisions and impose its views on what should or should not be included in the planning instruments.75 Due to the extensive powers of the Environment Court to decide on the merits, regional and district rules can be reviewed and replaced in an appellate procedure although they are excluded from the principle of reasonableness since they are legislative in nature.76 Consequently, the question of reasonableness is not important since the Environment Court already has the jurisdiction to substitute the decision of a council anyhow.

5.2.3

Situational Characteristic of Real Property

With regards to land use restrictions, the specific legal concept of ‘situational characteristic of real property’ plays an important role for the justification of definitions of content and limits of property and their proportionality under German law. This concept does not have an equivalent in New Zealand law. In essence, the concept justifies restrictions to the use of property that a reasonable landowner would not undertake anyways because of the factual circumstances.77 Because of the focus on factual conditions, similar land use restrictions in New Zealand are likely reasonable exercise of the power to regulate land use—without the necessity to use a specific legal concept. In particular, the outcome seems transferable since the legal concept is used to satisfy the principle of proportionality under German law, which shares many commonalities with the principle of reasonableness. Both principles restrict the administration’s possibility and the extent to limit property rights.78 An example would be the prohibition of land use in an area at imminent risk of coastal erosion, e.g. land on top of an eroding cliff, which would certainly be a lawful restriction of land use in both jurisdictions. This seems applicable to less extreme cases. In the light of climate change and rising sea levels being common knowledge, land use restrictions could arguably be imposed in areas adjacent to 73

Resource Management Act 1991: RMA, Sch 1 cl. 14 (1). Resource Management Act 1991: RMA, s 293. 75 Rivers-McCombs (2011), p. 49 who characterizes this as the Court stepping into the shoes of the local authority. 76 Rivers-McCombs (2011), p. 47. 77 BGH, Urteil on 20.12.1956, NJW (1957) 538 (Sozialgebundenheit des Grundeigentums: Grünfläche), p. 539. 78 Wade and Forsyth (2014), p. 315. The principle of proportionality is, however, stricter. Whereas a judge under the principle of proportionality may also reassess the balance struck by the decisionmaker and whether the action taken was really necessary, the principle of reasonableness is limited to determine whether the action was within the range of reasonable decisions. 74

5.3 State Liability

297

at-risk areas under the assumption that these areas will be at risk themselves as a result of rising sea levels.

5.2.4

Interim Conclusion

Summing up, the overall observation can be made that land use regulations are less severe for the affected property owners and easier to impose by the regulator. As they do not entail compensation, land use regulation is less expensive than expropriation. Difficulties remain with existing uses that can usually withstand a change in regulation, in Germany due to the protection of property and the entailed grandfathered rights and in New Zealand due to the circumstance that existing land uses can only be overridden by a regional plan.79 This finding supports the argument that future land use should be regulated in a foresighted manner to avoid the necessity for expropriation and enable future adaptation action. If, for instance, future sea levels are taken into account now and, as a consequence, development is limited in time this would facilitate future adaptation decisions and also send a signal to the coastal property owners who can plan accordingly.

5.3

State Liability

The thesis also examined questions regarding state liability for inadequate coastal adaptation, for instance, failure of coastal defences or allowing development in at-risk areas. With regard to state liability, German and New Zealand law have different general characteristics. While Germany distinguishes between the ordinary tort liability and state liability regimes, New Zealand, universally applies tort liability to wrongs done by state authorities. Despite this significant difference, some of the requirements result in similar restrictions to liability. For instance, the requirements that a duty of care must be owed not only to the public but to the plaintiff is, in essence, the same in both systems.80 Under tort liability, this is one criterion, under German law divided into the two steps of a duty owed to third parties and the plaintiff being part of that third party. Rules on causality of the breach of a duty for the damages suffered by the plaintiffs are similar.81 Both legal systems exclude liability for legislative injustice, which in New Zealand extends to quasi-legislative functions, e.g. drafting planning instruments. Although municipalities in Germany can be liable for specific

79

Resource Management Act 1991: RMA, s 10 and 10B. Dörr (2014), p. 7. Although this work compares among others, Germany and Ireland, the section relates only to common law as it is applicable as well in New Zealand. 81 Dörr (2014), p. 14. 80

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municipal land use plans, liability is limited to a few cases, e.g. regarding contaminated soil. Generally, the remedy against land use regulation is, therefore, review in court not claiming damages. Contrary, in both jurisdictions negligent granting of building permits can result in liability. Moreover, in Germany, state liability for breaching an official duty with regards to flood protection works is mainly excluded, except against associations for dike maintenance if they evidently failed to take necessary measures.82 Under German law several different claims exist with regards to property, covering every possible violation of this right. This is not only due to the importance of the constitutionally protected right to property but also the guarantee of recourse to the courts for every violation of rights by public authority.83 Due to the strong constitutional protection, property rights constitute a major barrier for coastal adaptation in Germany. In general, the risk of liability seems to play a greater role in New Zealand than in Germany. Henceforth, the need for a clear framework of liability was illustrated for New Zealand along with the recommendation to encourage local authorities to address coastal adaptation by limiting their liability.84 Liability risk seems greatest for New Zealand local governments for hazard misstatements on land information memoranda.

5.4

Intersection of Coastal Adaptation and Nature Conservation

Climate change induced sea level rise will adversely affect coastal habitats, for instance by decreasing their area through exacerbated erosion. In addition, the construction or enhancement of coastal defences usually adversely impacts the environment as well. On the other hand, retreating from the coastline can favour landward migration or extension of habitats. Consequently, nature conservation issues play a role for coastal adaptation. This is reflected by instruments assessing environmental impacts.

5.4.1

Environmental Impact Assessments and Assessment of Alternatives

While spatial and land use plans under German law are required to undergo an environmental impact assessment, the planning instruments in New Zealand are only assessed under the weaker criterion of their appropriateness to achieve the purpose of 82

See above: Sect. 3.10.2.1. German Basic Law: GG, Art 19 (4). 84 See above: Sect. 4.16.2.2. 83

5.4 Intersection of Coastal Adaptation and Nature Conservation

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the RMA (sustainability) and objectives of the proposal. Major projects in Germany are also usually subject to an environmental impact assessment. In New Zealand’s resource consent procedure, the assessment of alternatives is limited to significant effects on the environment and thus less relevant. Hence, assessing alternatives is more frequently required under German law than under New Zealand law, which is likely due to the role of EU legislation in this field but also the factual circumstance that the pressure on the environment is more intense in densely populated Europe.85 However, it is doubtful whether the actual relevance of the assessment of alternatives in planning practice is much greater in Germany than in New Zealand.86 Interestingly, assessments of different coastal adaptation (or coastal management) options are frequently considered by local governments in New Zealand despite the lack of requirements to assess alternatives.87

5.4.2

Synergy and Conflict

Coastal areas are valuable habitats for flora and fauna; therefore, the role of nature conservation law for coastal adaptation was examined, including the potential for synergy.88

5.4.2.1

Germany

Synergies in Germany exist with regards to protecting dunes, the foreshore, and, in particular, the Wadden Sea. In protected areas, development and land use can be restricted, which can be used to avoid placing further assets at risk. Conflict between coastal adaptation and nature conservation on the other hand usually arises concerning the construction of hard defences but also with regards to sand nourishments. However, both must observe environmental protection and nature conservation if they are funded by the Joint Task Act that enables federal funding. Furthermore, there is a general obligation under the Federal Nature Conservation Act to protect nature and landscapes as well as more specific obligations with respect to the Wadden Sea, for instance. These obligations were found to be interests that must be taken into account but so do other considerations like the protection of life and property.89 Greater potential for synergy exists in particular where environmental goals can justify further adaptation action than coastal protection alone could.90

85

Marquardt (2014), pp. 268–270. See also: Sects. 3.9.1.2 and 4.13.1. Marquardt (2014), p. 290. 87 E.g. Beca Carter Hollings & Ferner Ltd (2006). See above: Sect. 4.11. 88 See above: Sects. 3.9.1 and 4.13.1. 89 See above: Sect. 3.9.1.4 90 See above: Sect. 3.11. 86

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5.4.2.2

New Zealand

In New Zealand, the objectives and policies of the NZCPS include the protection of the coastal environment as an ecosystem. Consequently, these issues play a role for lower-ranking planning instruments and for resource consents. Directives to avoid, remedy or mitigate the adverse effects of activities on the coastal environment are often set by Regional Councils.91 In particular, the preservation of dunes as the probably most important natural defence, is frequently addressed in planning instruments of all tiers.92 To a certain extent, the protection of the environment as part of sustainable management can be seen as similar to the obligation to protect nature in the German Nature Conservation Act. In effect, the guiding principle of the RMA is not absolute but instead is one aspect of sustainable management.

5.4.2.3

Untapped Potential of Multipurpose Adaptation

As apparent from the analysis, nature conservation is an issue that needs to be taken into account in coastal adaptation in both legal systems. However, nature conservation is usually not the only concern that is relevant to coastal adaptation. In both countries, there is the potential to combine coastal adaptation and nature conservation to restrict further land use. Pursuing multiple purposes can make adaptation more acceptable and turn it into a no-regret measure even if sea levels should not rise as assumed. A retreat strategy could also be made feasible if new habitats are created. This synergy potential is not really used yet. On the whole, integrating nature conservation into coastal adaptation decision-making is important to prevent coastal squeeze and the associated adverse effects.

5.5

Continued Challenges and Overall Remarks

5.5.1

Introduction and Section Overview

5.5.1.1

The Need for Long-Term As Well As Flexible Coastal Adaptation

Regardless of the existing legal provisions that in theory enable different adaptation strategies, the respective shortcomings of Germany’s and New Zealand’s legal frameworks were identified.93 Some of these remaining challenges are particular to one of the countries, others concern general aspects of effective adaptation and arise

91

See above: Sect. 4.13.1. See above: Sect. 4.8.2. 93 See above: Sects. 3.12 and 4.16. 92

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in both states. This includes factual circumstances like the complexity of the coastal setting as well as general climate change adaptation concerns like avoiding maladaptation and, most importantly, integrating a long-term focus into decision-making and flexibility to cope with inherent uncertainties.94 In the context of coastal adaptation, the latter refers to the velocity and magnitude of sea level rise since sea level rise itself is virtually certain. Predictions vary greatly. While the IPCC expects only up to 60 cm by 2100, other scientists estimate that sea levels could rise up to 2 m with the same timeframe. More extreme sea level rise is expected in case ice sheets in Greenland or Antarctica melt, which could respectively add several meters to rising sea levels.95 In any case, sea levels will continue to rise after the standard reference year of 2100. As a result, effective coastal adaptation needs to take into account the long-term effects of rising sea levels and plan for adaptation strategies that are feasible and sustainable in the long-term. Protection works that are sufficient for now, may not provide adequate protection in the long-term when sea levels rise exceeds a certain threshold. This particularly includes discussing every available strategy, no matter its popularity and thereby ensuring that more disruptive actions can be implemented over time. Along with this long-term focus, this requires a flexible, i.e. adjustable decision-making processes that enables changing strategies when the current ones are no longer sufficient. Another reason why taking a long-term perspective is necessary is the long lifetime of buildings, infrastructure, and coastal defences. Hence, foresighted planning can avoid or reduce impacts and adaptation costs. For example, if new development is allowed in an area that is not yet at risk but expected to be in 50 or 100 years, the new community will face adaptation challenges in the future. If future impacts are taken into account before the development might be directed away to a safer area in the long-term or already constructed using flood-resistant design methods. On the other hand, avoiding long-term commitment can be an adequate choice as well. Houses in areas that are likely to become at risk in the future could, for instance, be built cheaper and with a shorter lifetime instead of high-quality houses meant to last 100 years.96 Short-lived decisions like that would also guarantee the necessary flexibility.

5.5.1.2

Current Reflection in the Legal Frameworks

Both, the German and the New Zealand legal system, struggle with implementing a coastal adaptation strategy that looks far ahead into the future and considers the impact of today’s decisions in 100 years and beyond. Although the New Zealand Coastal Policy Statements establishes such a timeframe for risk assessments,

94

See above: Sect. 2.6. See above: Sect. 2.1. 96 Hallegatte (2009), p. 245. 95

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corresponding action often faces pushback from affected ratepayers, decreasing its effectiveness. In Germany, in particular the emphasis is on a protection strategy and there is a lack of consideration of alternative adaptation options. Although the protection strategies do incorporate rising sea levels, the underlying assumption that current strategies can cope with sea level rise may well cease to be true in the future.

5.5.1.3

Overview

Consequently, to enable effective adaptation, a legal framework needs to support long-term and flexible adaptation strategies. The next sections, therefore, address issues that would help to achieve this. First, no and low regret action is examined, followed by robust decision making and making use of the full potential of available adaptation options. After these general concerns, mandatory consideration of sea level rise is recommended as a particular measure after illustrating the need for this. Subsequently, the partly interrelated topics of controversial decisions, paradigm shift and retreat as an example of both, are explored, before moving on to whether public money should finance protection works. Afterwards, the importance of avoiding lock-in effects is described before closing with remarks about the impacts of equity and climate justice.

5.5.2

Coastal Adaptation As No and Low Regret Actions

Taking a long-term perspective is also likely to help identify low and no-regret adaptation options. In contrast to many other projected impacts of climate change, like heat waves or changing rain patterns, sea level rise is a ‘virtually certain’ consequence. Although velocity and magnitude are uncertain, there is no doubt that sea levels are rising and will continue to do so in the future.97 Consequently, adaptation actions taking into account global mean sea level rise on the upper end of the scenarios, e.g. 1 m by 2100, are likely to be no- or low regret actions since sea levels may not rise to this extent by 2100 but maybe a few decades later. Notwithstanding, conflicting property rights can limit the extent of adaptation action since actions that are not necessary at present or the near future, may not justify any extent of adaptation. For example: prohibiting any land use on land that is very unlikely to be affected by coastal hazards within the next 100 or 200 years would most likely not be proportional or reasonable.98 Henceforth, this encumbers long-term oriented action. However, the same measure can be proportional and reasonable if other purposes are pursued additionally or even predominantly. The

97 98

See above: Sect. 2.1. See above: Sects. 3.6.1.1, 3.11 and 5.2.3.

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303

already mentioned example of the creation of protected areas under nature conservation law, which can take a supportive role in this context and make development prohibitions a no regret action due to the environmental and recreational benefits.99 In order to satisfy long-term oriented, proactive adaptation as well as proportional action, a staged, flexible approach seems recommendable. Limiting or making land use rights revocable and building coastal defences with the possibility for future enhancement are ways to strike a balance between both. Regarding more transforming strategies, developing a strategy or assessing options that can be applied in case of sea level rise taking place on the upper estimated scale, are likely to be no or low regret even if they are implemented much later.

5.5.3

Robust Decision-Making Approach for Climate Change Adaptation

Most decision-making processes do not adequately account for uncertainty since they focus on one single prediction of the future and rely on cost-benefit analysis or other traditional economic approaches. These approaches fail to take into account adaptation benefits which are hard to calculate since they depend on how climate change develops.100 Costs for relocating a coastal settlement further away from the coast, for instance, can be calculated, however, it depends on the actual sea level rise if and to what extent e.g. coastal flood and erosion damage was avoided. As previously stated, the use of projections based on historical data and ‘best estimates’ in adaptation planning is likely to create lock-ins and reduce the flexibility for future adaptation actions.101 Recalling this illustrates the need to implement new approaches. Ensuring that decision-making considers the inevitable uncertainty of climate change and rising sea levels is crucial for achieving effective adaptation. Besides the already mentioned adaptation pathways recommended by the Guidance Manual on coastal hazards in New Zealand, other examples are: dynamic adaptive pathways, adaptive policy-making, adaptation tipping point, and real option analysis, which incorporates an uncertain parameter, e.g. sea level rise into a cost-benefit analysis.102

99

Köck (2013), p. 273. Dittrich et al. (2016), p. 79 f. 101 Lawrence and Manning (2012), p. 24. See also: Sect. 4.16.3.2. 102 Dittrich et al. (2016), p. 82. 100

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5.5.4

Existing Instruments Not Used to Full Potential

5.5.4.1

General

The challenges posed by rising sea levels will likely require to use all adaptation potential. Currently, Germany’s and New Zealand’s legal frameworks regulate and enable different adaptation strategies, although to a different extent. However, some of the existing legal instruments and powers are often not used to their full potential, like the regulatory powers of territorial authorities in New Zealand, or are not suitable on a larger scale, like for instance temporary building permits under German law, which is an exception to the law and can thus not be used as a general tool.103 Both examples illustrate that coastal adaptation does not necessarily require a complete change in the legal system but that (at least to some extent) reinforcing the existing powers and instruments or extending their scope can be quite effective. Another reason why existing instruments are not always used to their full extent, may well be the fact that most studies on adaptation costs and benefits focus only on a protective approach through hard defences and do not consider soft protection measures or different approaches like retreat or accommodation strategies. Hence, there is a gap in the cost-benefit analysis of coastal adaptation measures since most of the times not all available measures and trade-offs are considered.104 Thus, not all possible options can be considered, limiting adaptation action.

5.5.4.2

German Particularities

In Germany, it is likely that municipalities are not always aware of their potential to adapt to coastal changes: since the states mainly follow the policy to defend the coastline, there is no reason for the municipalities why they should adapt their land use planning, although this could lead to a higher standard of protection or a change in strategy. The flood-resistant design of the HafenCity in Hamburg, although a citystate, not a municipality, seems to be an exception to this. Notwithstanding, this approach was only used because the area is outside the protected, diked area. The protection level required for the HafenCity is still based on the protection standard of the areas protected by dikes, having to be equal to it. Therefore, even in the HafenCity, the protection works continue to be the point of reference.105 This shows that unless outside the protected area, there is no awareness or willingness to reduce risk through specific municipal land use plans, i.e. areas behind protection works are perceived as safe by the municipalities.

103

Spatial planning in Germany generally does not use its potential for climate change adaptation, see: Meyer (2014), p. 145. 104 Wong et al. (2014), p. 393. 105 See above: Sect. 3.6.1.2.

5.5 Continued Challenges and Overall Remarks

5.5.4.3

305

The Role of Tradition and Summary

Besides legal regulations, cultural traditions can exclude alternatives from the decision-making process and favour ‘traditional’ choices like flood protection works instead of changes in building design or land use. Further limitations can be due to the unawareness of decision-makers of existing alternatives.106 Germany is an example where traditional protection strategies dominate and alternatives are not really discussed while New Zealand authorities focus more on land use regulation. Since law greatly influences decision-making, amending the law in order to enable, encourage and where necessary force decision-makers to investigate and consider all existing strategies is crucial for using full adaptation potential. Therefore, ensuring effective adaptation to rising sea levels includes making decision-makers aware of the array of available adaptation options107 as well as the legal instruments to implement these. This includes being aware of instruments that can contribute to coastal adaptation although it is not their primary purpose, like in case of creating areas to protect coastal habitats.

5.5.5

Importance of Mandatory Consideration of Sea Level Rise

From the analysis of the two legal systems it has become clear that considering climate change or sea level rise is not always mandatory. Interestingly, the degree of considering sea level rise is much higher in non-statutory documents. Both, the general plans on coastal protection in Germany and the guidance manual for local governments in New Zealand address sea level rise in detail. In contrast to these specialist documents, references to climate change impacts in legally binding instruments like statutes, land use or district plans, are mainly general. However, taking a long-term perspective would also require adequate consideration of future changes like rising sea levels.

5.5.5.1

Specific Requirements

Law is in its nature more abstract and all climate change impacts should be addressed not only rising sea levels, but usually more precise obligations are more effective.108 It makes a difference if a district council or a municipality is required to take into account climate change impacts and potential for adaptation or if they are asked to assess all available coastal adaptation strategies covering a timeframe of at least 106

Slovic et al. (2011), p. 6 f. Linham and Nicholls (2012), p. 103. 108 Reese (2010), pp. 412 and 436. 107

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100 years. Although precise criteria make it harder for an authority to claim that it considered climate change, instructions that are too strict may restrain other actions. If the responsible agency is, for example, obliged to assess whether a protection or retreat strategy is more feasible, this would guarantee that these options are considered. At the same time, other options like flood-resistant design may be neglected. The example given is, of course, a simplification since often, and this has been mentioned several times before, several adaptation actions—often belonging in different categories, are combined.

5.5.5.2

Elected Bodies

Considering the limits of human risk perception,109 and the need for long-term planning beyond the terms of elected bodies, a legal requirement to consider rising sea levels could guarantee foresighted planning.

5.5.5.2.1

Short-Term Perspective

In particular, democratically-elected governments often prioritise short-term over long-term interests.110 This applies to the locally elected local governments in New Zealand and the municipalities in Germany, who prepare and adopt policy statements and plans111 or land use plans respectively.112 As elected members both, the local governments and the municipalities, are likely influenced by their voters and public opposition to e.g. a decision to impose setback lines or other building restrictions. Although the voters’ opinion is an integral part of a democracy and needs to be respected, in some cases this can lead to decisions that are detrimental and uninformed—at least in the long-term. Therefore, an obligation for these authorities to take a long-term perspective beyond the electoral cycle and consider impacts of climate change over various decades is necessary since these are unlikely to be a voter’s concerns, above all where this means sacrificing or restricting current privileges or require a change of behaviour.

5.5.5.2.2

Manifold Concerns and Responsibilities

In Germany, the state agencies dealing with coastal protection consider technical expertise and incorporate sea level rise even though they are not obliged to do so. In contrast to these specialized agencies, coastal adaptation is not the main concern of a

109

See above: Sect. 2.8.2. Boston (2017), p. 94. 111 Resource Management Act 1991: RMA, sch 1 cl. 17 (1). 112 Federal Building Code: BauGB, § 2 (1) cl. 1. 110

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307

district council or a municipality. For these institutions, adaptation to climate change in general and to rising sea levels, in particular, is only one of many concerns, next to hospitals, schools, water supply, local economy, and more. An obligation to consider sea level rise and the potential for coastal adaptation in land use plans could help to raise this awareness among municipalities. This is important since they are usually responsible for approving building permits and can thereby influence future coastal adaptation where building permits create grandfathered rights. Communicating the use of temporary or revocable permits could ensure the necessary flexibility. A mandatory requirement could also counterbalance development pressure in coastal areas which currently leads to inadequate consideration of rising sea levels and flood risk or faith in technical solutions.113 Overall, a compulsory requirement would ensure that sea level rise is taken into account where relevant and sets a basis for corresponding action.

5.5.6

Controversial Decisions, Public Push-Back and the Call for Protection

As mentioned in the section above, development pressure and public opposition often have detrimental effects on coastal adaptation action, in particular on long-term orientation. In particular, changes of strategy and unpopular decisions, e.g. opting for a retreat option, face public pushback or the topic is considered to be too sensitive to be even talked about. These difficulties and conflicts with property rights, emphasise the importance of law for enabling controversial but necessary decisions and thus its role for the transition to adapted coastal communities that are able to cope with rising sea levels. In Germany as well as in New Zealand, citizens expect to be protected from coastal hazards. These expectations seem to be stronger in Germany due to the long tradition of coastal protection as a task of the state and the positive obligations rooted in the German Basic law than in New Zealand. Nevertheless, the demand for protection, for example, to build a seawall is also very strong in New Zealand. This may partially be related to the relative stability of sea levels in the past 2000–3000 years114 and the perception of the coastline as static. While the coast has always been dynamic due to the interaction of land and sea, man-made coastal defences keep or try to keep the coastline in the same place. With rising sea levels, the pressure on those ‘holding the line’ technologies increases, making them more expensive and in some location already uneconomical. The economic pressure on coastal communities becomes apparent in small, low-income coastal communities. In other words: where the threshold for protection becoming uneconomical is low. An example of this are the already mentioned small coastal settlements in 113 114

Lawrence et al. (2018), p. 101; Othengrafen (2014), p. 125. Ministry for the Environment (2017), p. 76.

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New Zealand like Hector, where retreat is seen as the only strategy viable in the long term. In these cases, the lack of financial means forces the decision makers to look for different strategies.115 This may well increase existing inequalities between poor and wealthy communities.116 In principle, this also applies on a larger scale. Although for bigger coastal communities with more people, assets, businesses, and funding, a protection strategy is likely to be economical for various decades, there are limits as well. The feasibility of protecting coastal cities and towns may have to be re-evaluated in case sea levels rise significantly, e.g. due to the melting of ice sheets. Consequently, looking at the smaller communities that already experience financial pressure can teach valuable lessons for bigger communities. Especially with regard to relatively new and not yet common strategies like managed retreat, learning how these can work on a small scale could help to prepare for application on a larger scale, e.g. a flood-prone part of a city like the South of Dunedin in New Zealand. In this regard, looking at New Zealand financially struggling districts can also provide valuable insights for Germany, although the country has a sufficient funding mechanism for coastal protection. Looking at those examples could encourage thinking of alternatives by asking the question what would be the most viable option in case financial funding lacks. This might encourage a long-term strategy and in some cases could provide a proactive strategy on how to react if (or when) defences become uneconomical. This is not purely theoretical since costs for protection works and ongoing sand nourishments are very likely to increase in the future. In the light of managed retreat being a severe choice on coastal residents and the increasing difficulty the more people are affected, foresighted long-term planning appears crucial. The UK and the Netherlands already decided against a general protection standard in every location and defending the coastline in every location.117 In New Zealand, this discussion is now starting, e.g. when discussing retreat at the West Coast of the South Island.118 In Germany, this discussion has not started yet but is likely to start at some point, e.g. with regard to the sparsely populated Halligen.

115

See above: Sect. 4.9.3. See below for equity: Sect. 5.5.11. 117 See above: Sect. 3.12.2.1. 118 See above: Sect. 4.9.3. 116

5.5 Continued Challenges and Overall Remarks

5.5.7

Paradigm Shift

5.5.7.1

Proactive Adaptation

309

A long-term perspective also enables proactive adaptation. The UN Sendai Framework for Disaster Risk Reduction also highlights the urgent need for anticipatory disaster risk reduction to achieve more effective protection and strengthening resilience.119 Currently, Germany’s and New Zealand’s erosion and flood management is mainly reactive and short-term-oriented.120 Hence, a transition towards proactive coastal management that considers long-term trends is necessary in both countries. Proactive adaptation includes upgrading coastal defences, building setbacks to avoid development in hazard prone areas and building regulations concerning floodresistant design.121 This would include enabling accommodation, avoidance and retreat strategies since they require proactive planning (unlike protection which can be implemented reactively). Compared with reactive adaptation, proactive strategies provide greater benefits and are more economical, and thus preferable.122

5.5.7.2

Paradigm Shift Away from Exclusively Technical Solutions

Moreover, proactive adaptation can also promote changes in strategy. This is another key point since climate change impacts are expected to be too far-ranging to be solved exclusively on a technical basis.123 This work illustrated this with respect to rising sea levels.124 To support changes in strategy, a change in perception is also needed. The coastline should no longer be seen as fixed and unmovable but as dynamic as it is.125 Perceiving the coastline as naturally changing, could help to accept that if the shoreline does not stay in the same location forever that coastal settlements cannot either, thereby also accepting that the ‘status quo’ created by holding the coastline in the same place through coastal defences may not be defendable in the future. This might also relieve the pressure put on the responsible actors like the district councils in New Zealand by coastal residents and other stakeholders. Communicating that those authorities are not responsible for the rising sea levels and that property values do not decrease because information is e.g. put on a land information memorandum, but because of the hard fact that risk levels are increasing, may

119

United Nations Office for Disaster Risk Reduction (UNISDR), Preamble. Linham and Nicholls (2012), p. 96. 121 Nicholls (2018), p. 20. 122 Linham and Nicholls (2012), p. 100. 123 Knieling and Fellmer (2013), p. 83. 124 See e.g. Sect. 3.12.1. 125 This is recognized and recommended for the Baltic Sea by HELCOM (1995) Recommendation 16/3. 120

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help to reduce opposition and enable the councils to actually focus on how to cope with and adapt to the situation. Shifting the paradigm away from technical protection works towards temporary land use and relocation in the coastal zone is crucial since common technical actions like beach nourishment are likely to become more expensive as sand resources diminish and at the same time more communities compete for them.126 In this context, it is important to notice that technical defences may not be the best solution even if they are technically feasible. Some residual risk always remains and defence failure can result in catastrophes like the storm surge in Hamburg in 1962 or Hurricane Katrina in Louisiana in 2005.127 Thus, strategies that reduce the reliance on hard defences like retreat,128 should be taken into due consideration. Residual risks are expected to increase with rising sea levels. Consequently, coastal adaptation should not only address the likelihood parameter of risk but also vulnerability to achieve the most effective risk reduction. Recalling that accommodation and retreat are not new but traditional strategies to cope with coastal hazards may encourage this shift. At the Dutch and German North Sea coast, accommodation in form of dwelling mounds only changed to a protection strategy in the thirteenth century.129 In some forms, this strategy is still used today and could be reinforced.

5.5.8

Opting for Retreat

A paradigm shift could also enable retreat strategies. Although managed retreat is considered as highly disruptive,130 it needs to be taken into account that disasters like floods also impact human health (apart from the even more serious threat to life and physical injuries) since the displacement and the destruction of homes cause stress that can affect mental health even a long time after the event.131 Therefore, a managed retreat strategy that is implemented over time giving people the opportunity to get used to the idea of moving to a different part of town or a different city, seems a lighter burden that should at least be considered where risks are high. The same reasoning supports the avoidance of further development in hazard prone areas. This is in accordance with the UN Sendai Framework for Disaster Risk

Keeler et al. (2018) Far-sighted adaptation to rising seas is blocked by just fixing eroded beaches. Nicholls et al. (2018), p. 12; See above: Sect. 2.3. 128 Rosendahl Appelquist et al. (2016), p. 76. 129 van Koningsveld et al. (2008), p. 371; Generalplan Küstenschutz Niedersachsen/Bremen— Festland, p. 10. 130 Rosendahl Appelquist et al. (2016), p. 77. 131 European Environment Agency (2017), p. 205. 126 127

5.5 Continued Challenges and Overall Remarks

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Reduction recommendation to prevent new settlements in areas prone to disasters and relocate existing settlements where possible.132 For the U.S. experts already consider retreat as unavoidable under intensifying climate change and rather a question of where and how it will occur.133

5.5.8.1

Existing Obstacles

Despite being considered the best response to sea level rise among experts134 and only strategy that deals with coastal hazards in the long-term, it is controversial and difficult to implement. This has become clear from the New Zealand experiences on managed retreat and the pushback with regard to coastal erosion lines and their appearance on land information memoranda. The reluctance to consider retreat as a strategy for Germany also indicates its controversial nature. Furthermore, the uncertainty about the extent and the velocity of sea level rise is perceived as a restraining factor for managed retreat.135 Lack of financial means and the risk of compensation claims for lost development rights and reduced property values can deter considering and implementing retreat strategies.136 In many coastal communities, the already created ‘lock-ins’ from existing development are substantial, limiting the viable options for coastal adaptation. Because of these difficulties, it is important to at least avoid further development in at-risk areas or to ensure that new developments can accommodate the impacts of rising sea levels, e.g. through adequate location and design or relocatability. This would contain the vulnerability of coastal communities and avoid lock-in effects and maladaptation. As highlighted before, ensuring that no further lock-ins are created or that adaptation options are limited by further development, is crucial for coping with the uncertainty of extent and velocity of rising sea levels and the entailed impacts.

5.5.8.2

Decision to Retreat and Compensation As Two Different Issues

Two main issues need to be distinguished with regards to retreat strategies. First, which parameters should influence the decisions if or where a retreat strategy should be implemented and second, whether compensation should be paid to those affected by the decision to retreat and how to calculate the amount. With regards to the first issue, some criteria were suggested and the argument made that property values should not be the only determining parameter.137 An extreme example of an

132

United Nations Office for Disaster Risk Reduction (UNISDR), 27 (k). Mach et al. (2019), p. 1. 134 Nicholls (2018), p. 24. 135 Abel et al. (2011), p. 280. 136 McDonald (2010), p. 19. With regard to Australia. 137 See above: Sect. 3.12.2.2.3. 133

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economic cost-benefit-analysis setting wrong incentives can be found in the US. There, the town of Jean Lafitte in Louisiana built several public assets like a library, a medical clinic and a baseball park in the last years, after funding for a dike to protect the town was refused due to the small number of people living there. Through these expensive public investments, the town hopes to become too valuable to be abandoned.138 The example also shows the importance that funding for such assets should also take into account a long-term timeframe. Concerning the second issue, whether homeowners should be compensated under a managed retreat strategy, a look at the UK promises valuable insights. Under the Coastal Pathfinder program in East Riding, a ‘relocation package’ was developed that included total costs for demolition and site restoration, relocation (up to £ 1000) as well as a small hardship payments of max. £ 200. In the case of residents owning second homes, the help was restricted to demolition costs.139 Limiting the help for residents that already have another place to go and providing help for relocation for people that need to find a new home can be considered a fair distinction since the latter are affected to a higher extent and correspondingly need more help.

5.5.9

Protection Funded by Public Money

Coastal adaptation funding should address two main issues; first, to reduce the longterm costs of climate change and second, equitable burden sharing. The latter includes the so-called ‘outcome responsibility’ meaning that people should be responsible for their own action. Buying coastal property knowing that it will soon be affected by coastal erosion could be excluded from financial help by this principle.140 Another key point, related to the aforementioned issues, is the question of who should pay for coastal adaptation, in particular for coastal defences. Historically, the settlers in Germany’s coastal regions lived at their own peril and did not have any claim against the state to take protection measures, but were themselves responsible to ensure their protection against storm surges and floods. The responsibility to build dikes and other protection structures was connected to the real estate property. This principle is still reflected nowadays in the principle that coastal (flood) protection is the responsibility of those that profit from it.141 However, the responsibilities of the state have been significantly extended by the State Water Acts and the Federal Water Act. Therefore, coastal protection is no longer an individual responsibility of the seaside residents.142

138

Sack and Schwartz (2018) Left to Louisiana’s Tides, a Village Fights for Time. Department for Environment, Food and Rural Affairs (2012), p. 200. 140 Boston and Lawrence (2018), p. 45. 141 Mohr (as of February 2020) § 57, paragraph no. 1. 142 Winkelmann (2003), p. 144. 139

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313

Apart from the long tradition of coastal protection as a task for the community and later the state rather than the individual, the existence of positive obligations of the state to protect the life and the property of its citizens is another reason why Germany can be considered a ‘protective state’143 and the overall emphasis is on a protect strategy. Coastal hazards are rather perceived as a risk to the whole society than the individual risk of a coastal resident. Thus, coastal adaptation in Germany does neglect to discuss whether public money should be spent at all to help people that ‘made a bad choice’ by buying coastal properties since even without considering sea level rise in most places the risk from storm surge entailed flooding is immanent to the coastal location. In contrast, in New Zealand individual choices to accept flood risks and assuming the individual responsibility (that means agreeing to be barred from claiming money from the council) have been recognized in court.144 A possible explanation could be the different density in population since in the densely populated Germany the potential impacts of flood risk usually impact more than just one property. Hence, coastal protection is usually at least partly paid for by other tax and ratepayers, not just the coastal residents. Arguably, those costs should not be passed on to society and future generations but be paid for by those who benefit from the investments.145 With regard to exacerbating coastal hazard risk and increasing numbers of affected people and assets, ‘bailing out’ one coastal property could set a precedent and nourish expectations that every coastal asset will receive the same treatment although it may not be feasible or possible to help or pay out everyone. Thus, this could unfairly favour those affected first. Furthermore, financial pressure will likely increase due to climate change impacts, not just at the coast. Under these circumstances, funding allocation and funding guidelines should be reassessed not only to ensure long-term feasibility but also to accommodate climate justice conflicts.146

5.5.10 Avoiding Lock-Ins and Preserving Options for Future Generations Ineffective or maladaptive decisions on flood risk may not always be due to a lack of knowledge but a lack of risk governance.147 Hence, enhancing risk governance and planning by implementing a long-term approach, lock-in decisions and maladaptation could be avoided more frequently. Planning decisions could assess whether a proposed action reduces incentives to adapt or limits futures adaptation options. An 143

See above: Sect. 3.12.1.1. See above: Sect. 4.14.4. 145 Abel et al. (2011), p. 285. This also relates to intergenerational equity, see below: Sect. 5.5.11. 146 See below: Sect. 5.5.11. 147 Vanderlinden et al. (2017), p. 130. 144

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example for this is if sea level rise can be remedied with the construction of a seawall in a 2  C warmer world but require a managed retreat strategy to face a 4  C earth, building the seawall would probably make it more difficult to implement a managed retreat strategy to face a 4  C earth.148 An important part of avoiding maladaptation is also to prevent government funding for post-disaster recovery—at least where this does not include adaptation and risk reduction measures but only restores the status quo. If money is spent to help affected individuals and thus discourages them from adapting themselves then at least the result should be a more resilient one that reduces the risk for the affected people but also the risk of taxpayers paying for subsequent events.149 The dikeline at the North Sea coast and the sand nourishments on the Frisian Islands in Germany are good examples of lock-ins. Since areas behind the protection works are perceived as safe, development increases and due to the values at risk maintaining and enhancing the existing protection is seen as the only viable option without even considering alternatives.150 Up to now, the value of land still makes the protection of the German coastline feasible but costs are expected to increase due to rising sea levels and the associated need for more extensive protection works as well as augmenting demand for finite resources like sand and clay. The consolidated development will make it had to implement a strategy that turns away from a protective approach. Coastal communities in New Zealand should bear in mind these lock-in effects before relying on coastal defences to the same extent. Apart from wealthy communities, it is unlikely that a protective approach is pursued along the New Zealand coast and central government should not provide funding to finance protection works where they are not feasible. Furthermore, emphasis is needed that a residual risk always remains and the severe consequences of failure were illustrated by the examples of the storm surge in Hamburg and Hurricane Katrina in the US.151 Consequently, long-term planning and decision-making timeframe is more apt to avoid lock-ins and can, at the same time, identify future adaptation actions that need to be preserved. Both are necessary for effective adaptation.

5.5.11 Coastal Adaptation and Equity/Climate Justice Although relevant for several aspects of coastal adaptation, an issue not yet addressed in neither the German nor the New Zealand legal framework or the discussion about coastal adaptation is that of equity and environmental/climate justice in coastal adaptation.

148

Abunnasr et al. (2014), p. 139. See above: Sects. 3.12.5 and 4.10.2.1. 150 See above: Sect. 3.12.1.1. 151 See above: Sect. 2.3. 149

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315

Equity and environmental justice discussions are not new in the context of climate change.152 On the contrary, the fact that countries that have contributed the least to climate change are likely to experience the most impacts has been discussed for a long time now. Although it has predominantly featured in reference to mitigation obligations, the question of fairness applies also to adaptation.153 The United Nations Framework Convention on Climate Change and the Paris Agreement, for instance, acknowledge mitigation as a common but differentiated responsibility.154 Apart from being a global issue, questions of equity can furthermore arise within the same country. For the US, prioritizing adaptation for the most vulnerable groups of society is recommended to achieve a more equitable future within and across communities. This refers for instance to lower income communities that have a lower capacity to prepare for and cope with extreme weather and climate-related events.155 In the coastal context, climate justice issues particularly relate to the question if, which and under which circumstances property is defended against rising sea levels. If for instance, the construction of public defences is based on a cost-benefit-analysis this will most likely favour high-value property owners raising issues of equity as well as conformity with equality principles.156 Although costbenefit analysis is a transparent parameter, it does not adequately reflect non-monetary interests, in particular, long-term consequences and risks for future generations.157 Furthermore, cost-benefit-analysis often include the value of assets at risk without taking into account that land and homes can usually be used again after a flood and thus its value is not entirely diminished.158 More generally, long-term costs of climate change are difficult to assess since they depend on uncertain parameters like future emissions, future development as well as future adaptation action. Moreover, the costs vary depending on the timeframe considered since climate change and its impacts will be different in 50, 100 or 200 years.159 Equity in the adaptation context has many different facets. Even if a decision is made in the light of equity to treat all coastal properties as equal and defend them, this would raise the questions whether this is fair if properties that are affected by other climate change impacts, e.g. a river or stormwater flooding, are treated differently as well as if this violates intergenerational equity. Since decisions made today entail consequences for future generations, e.g. placing a burden of ongoing

152

See above: Sect. 4.16.5. Reckien et al. (2017), p. 162. 154 United Nations Framework Convention on Climate Change: UNFCCC, Art. 3 (1); Paris Agreement, Art 2 (2) and Art. 4 (3) and (19). 155 U.S. Global Change Research Program (2018), p. 12. 156 McKenna and Cooper (2008), p. 297. 157 Appel (2011), p. 480 f. 158 With regards to Germany see: Bosecke (2005), p. 80. Therefore, the repair costs would be a better point of reference for damage. 159 Boston and Lawrence (2018), p. 41. 153

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enhancement and maintenance costs of coastal defences on future generations of taxpayers while future generations of coastal property owners stand to benefit from the high value of protected land,160 intergenerational equity is an important issue to consider. Consequently, intergenerational equity requires long-term planning and the preservation of options in the future so that future generations can make their own decisions on coastal management and coastal adaptation without being committed to the ‘locked-in’ pathways created by previous generations. To sum up, the different facets of climate justice with regards to coastal adaptation include: • • • •

between industrialized and developing countries across generations within a nation between different adverse consequences of climate change along different sections/communities of a coastline

These issues have not received much attention so far but are likely to play an important role in future discussions.

5.6

Chapter Summary

All in all, the necessity for coastal adaptation and the role of law in enabling and promoting adaptation to rising sea levels was illustrated. The thesis showed that building coastal defences is not the only possible response to sea level rise and that coastal adaptation needs to find local solutions. A uniformly applicable panacea does not exist. Assessing whether German and New Zealand and their legal frameworks are prepared for rising sea levels, has not only revealed the complexity of coastal adaptation but also identified long-term orientation and flexibility of action as overall key factors for effective adaptation. The importance of long-term planning was linked to the circumstance that decisions made today impact adaptation options in the future. Developments and infrastructure have a long lifetime and thus the potential to create lock-in effects, as do coastal defences. In addition, sea level rise is a long-term commitment since sea levels will rise indefinitely. Although both countries do consider sea level rise and its effects on erosion and flood risk, they will likely face transition towards more comprehensive and sustainable adaptation than enhancing protection works or yearly repeated sand nourishments. Discussing how life at the coast could or should look like in the future must already start now and should focus on long-term resilience. Starting such a process now would not only help to avoid lock-ins and maladaptation but seems also more likely to adequately address unanswered questions, in particular with regards to the climate justice and equity dimension.

160

McKenna and Cooper (2008), p. 300. The authors point out that current generations are also paying the price for coastal defences of the Victorian era.

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In summary, the legal framework should enable coastal adaptation to rising sea levels to: • Have a long-term focus to: – – – – – • • • • •

identify no and low regret action preserve adaptation options for the future avoid lock-in effects avoid maladaptation implement strategies, managed retreat in particular, over time

Be flexible enough to allow adjustability of decisions and strategies Be robust enough to cope with different sea level rise scenarios Consider all available adaptation instruments and use their full potential Accept the dynamic nature of the coastline Make adaptation decisions, including allocation of public money, equitably

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Nicholls, R. J., Brown, S., Goodwin, P., Wahl, T., Lowe, J., Solan, M., et al. (2018). Stabilization of global temperature at 1.5  C and 2.0  C, implications for coastal areas. Philosophical Transactions. Series A, Mathematical, Physical, and Engineering Sciences, 376, 20160448. Othengrafen, M. (2014). Anpassung an den Klimawandel: Das formelle Instrumentarium der Stadtund Regionalplanung. Zugl.: Hamburg, HafenCity Univ. Diss. 2013, Schriftenreihe Studien zur Stadt- und Verkehrsplanung. Kovač, Hamburg. Papier, H.-J., & Shirvani, F. (2018). Art. 14. In R. Herzog et al. (Eds.), Grundgesetz: Kommentar (84th ed.). München: C.H.Beck. Reckien, D., Creutzig, F., Fernandez, B., Lwasa, S., Tovar-Restrepo, M., McEvoy, D., et al. (2017). Climate change, equity and the sustainable development goals, an urban perspective. Environment and Urbanization, 29, 159–182. Reese, M. (2010). Synthese, Strukturvoraussetzungen und strategische Kernelemente der umweltrechtlichen Klimaanpassung. In Umweltbundesamt (Ed.), Rechtlicher Handlungsbedarf für die Anpassung an die Folgen des Klimawandels (pp. 409–439). Dessau: Umweltbundesamt. Reimann, L., Vafeidis, A. T., Brown, S., Hinkel, J., & Tol, R. S. (2018). Mediterranean UNESCO World Heritage at risk from coastal flooding and erosion due to sea-level rise. Nature Communications, 9, 4161. Rivers-McCombs, S. (2011). Planning in wonderland, the RMA, local democracy and the rule of law. New Zealand Journal of Public and International Law, 9, 43–81. Rosendahl Appelquist, L., Balstrøm, T., & Halsnæs, K. (2016). Managing climate change hazards in coastal areas: The Coastal Hazard Wheel decision-support system. Catalogue of hazard management options. Runkel, P. (2018). § 1. In W. Spannowsky, P. Runkel, & K. Goppel (Eds.), Raumordnungsgesetz (ROG) (2nd ed.). München: C.H.Beck. Sack, K., & Schwartz, J. (2018). Left to Louisiana’s tides, a village fights for time. Retrieved March 19, 2020, from https://www.nytimes.com/interactive/2018/02/24/us/jean-lafitte-floodwaters. html Schmidt-Aßmann, E. (2018). Art. 19 (4). In R. Herzog et al. (Eds.), Grundgesetz: Kommentar (84th ed.). München: C.H.Beck. Slovic, P., Kunreuther, H., & White, G. F. (2011). Decision processes, rationality and adjustment to natural hazards. In P. Slovic (Ed.), The perception of risk, risk, society and policy series (pp. 1–31). London: Earthscan. U.S. Global Change Research Program. (2018). Impacts, risks, and adaptation in the United States: Fourth National Climate Assessment. Volume II: Report-in-Brief, Washington DC. UNESCO. World Heritage Centre ‘Germany’. Retrieved March 19, 2020, from http://whc.unesco. org/en/statesparties/de United Nations Office for Disaster Risk Reduction (UNISDR). Sendai framework for disaster risk reduction 2015–2030, Geneva. van Koningsveld, M., Mulder, J. P., Stive, M. J., Van Der Valk, L., & Van Der Weck, A. W. (2008). Living with sea-level rise and climate change, a case study of the Netherlands. Journal of Coastal Research, 242, 367–379. Vanderlinden, J.-P., Baztan, J., Touili, N., Kane, I. O., Rulleau, B., Simal, P. D., et al. (2017). Coastal flooding, uncertainty and climate change, science as a solution to (mis) perceptions? A qualitative enquiry in three Coastal European settings. Journal of Coastal Research, 77, 127–133. Wade, W., & Forsyth, C. F. (2014). Administrative law. Oxford: Oxford University Press. Winkelmann, C. (2003). Das Verhältnis zwischen Naturschutz und Küstenschutz unter rechtlichem Blickwinkel. In D. Czybulka (Ed.), Naturschutz und Rechtsregime im Küsten- und OffshoreBereich, Beiträge zum Landwirtschaftsrecht und zur Biodiversität (pp. 141–150). BadenBaden: Nomos. Wong, P. P., Losada, I. J., Gattuso, J. P., Hinkel, J., Khattabi, A., McInnes, K. L., et al. (2014). Coastal systems and low-lying areas, climate change 2014: Impacts, adaptation, and vulnerability. Cambridge: Cambridge University Press.

Chapter 6

Concluding Remarks and Outlook

Rising sea levels already pose significant threats to coastal communities—and coastal hazard risk will increase in the future. From this circumstance and the analysis above, it is clear that adaptation to rising sea levels at the coast is inevitable and best in a proactive and foresighted manner. Responses to rising sea levels need to reflect the diversity of the coast and seek the appropriate strategy (or combination of strategies) for every coastal location in particular. This should be enabled and encouraged by a legal framework that effectively supports adaptation to climate change impacts. The presented concepts for coastal adaptation to rising sea levels in Germany and New Zealand are only two different examples of possible adaptation action.

6.1

Coastal Adaptation in a Wider Context

Due to the topic and scope of this thesis, the analysis has addressed the legal framework for coastal adaptation without considering the wider context in which adaptation has to operate. However, coastal adaptation does not take place without any connection, in isolation from other factors and interest. The discussed intersection with nature conservation is only one example. Furthermore, rising sea levels are not the only challenge of coastal communities but one of many. Other natural hazards, like fluvial floods or landslides, may also threaten the same locations that are prone to coastal erosion and coastal flooding. In some cases, different issues can be addressed together or impact each other, for example, if multiple hazards can be addressed through the same action, like in the case of Matatā in New Zealand.1 These impacting circumstances are not restricted to nature but can relate to societal

1

See above: Sect. 4.9.3.

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5_6

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changes. Managed retreat, for instance, may be a feasible strategy in an area with a decreasing population while this might not be true for a place with a growing number of inhabitants. Another example would be where relocatable or mobile homes do not only enable shorelines retreat but serve as well other interests like a change of work place. In addition, coastal adaptation is not the only project that communities or the state (whether the federal state, the Länder, the municipalities or local governments) need to fund. Adaptation to other impacts of climate change will be equally important, for instance, increased river or stormwater flooding, heatwaves or avalanches. More importantly, the funding obligations of the state extend far beyond financing climate change adaptation, covering a large number of different services. To name just a few examples of funding responsibilities: the state usually pays for infrastructure, hospitals, schools and its administration and the court system.

6.2

Transition Towards More Resilient Communities

Sea level rise is a gradual process, therefore adaptation can also take place gradually—at least as long as no abrupt changes occur.2 Decision-makers at all levels of government should be aware of the latter and its uncertainty but unquestionably need to plan for the virtually certain gradual change of sea levels and the entailed consequences like higher storm tide water levels. In other words: the transition to a resilient and adapted community needs to start now, chiefly since decision about coastal development and land use made today will be a determining factor for exposure to coastal hazards over the coming century3 and influence the adaptation strategies that can be taken tomorrow.4 This transition should not be perceived as aiming at a specific outcome since a resilient and adapted community is unlikely to be a ‘static’ one since the long-term commitment will make ongoing adaptation necessary for centuries. Proactive adaptation, e.g. in the form of foresighted planning is necessary to counteract increasing hazard risks and to avoid fatalities and damage as well as to reduce future adaptation (and recovery) costs.

2

See above: Sect. 2.1. Ramm et al. (2018), p. 100. 4 Hallegatte (2009), p. 244. 3

6.4 Remaining Need for Mitigation

6.3

323

The Need for Law

Due to the human risk perception distortion and struggle to sacrifice current benefits for distant goals,5 a proactive timely transition to a more resilient society requires not only the awareness of all affected people and institutions but the support of a legal framework with binding directions that force people, businesses and the state to act and pursue foresighted adaptation. Hence, law is an essential instrument for climate change adaptation in general and coastal adaptation is no exception to this. This role has been illustrated in the previous chapters, but the importance of law for imposing long-term planning and decision-making and enables necessary choices regardless of their popularity has to be mentioned again. From the analysis in this thesis and the relevant literature it is clear that in order to adapt to climate change and its consequences, institutions need to: 1) integrate short- and long-term policy making, planning, and program development 2) be flexible enough to handle the underlying uncertainties, and 3) robust enough to reconcile the interest of different stakeholders.6 Incorporating the aforementioned considerations is, as apparent from the examples of Germany and New Zealand, a challenge for legal frameworks since law aims to provide legal certainty. Still, both legal systems need to accommodate for the new challenges and, presumably, they are not alone. Consequently, climate change does not only create the need for (physical or behavioral) adaptation to its impacts like sea level rise but also adapting institutions and legal instruments that need to support adaptation.

6.4

Remaining Need for Mitigation

The evident need for adaptation does, however, not diminish the importance of mitigation. On the contrary, climate change mitigation reduces the extent (in some cases the need) for adaptation. Regarding rising sea levels, a few centimetres can already result in more extensive areas being at risk from coastal hazards and influence parameters like the necessary height of protection works. If long-term planning reveals that necessary adaptation will be highly expensive and, in some locations, only possible by making hard decisions like relocating away from the coast, this might catalyse efforts for mitigation.

5 6

See above: Sect. 2.8.2. See also: Noble et al. (2014), p. 843 with further references.

324

6.5

6 Concluding Remarks and Outlook

Outlook

Rising sea levels do entail many factual and legal challenges. If coastlines retreat or low-lying lands get permanently flooded, this entails major changes of habitats—in some cases their disappearance. This would put pressure on species to find a new suitable habitat. Some migration of species will likely occur to changing temperatures but loss or changes of habitats due to sea level rise could add further stress. Legal implications arise from the circumstance that many coastal habitats are protected areas like the Wadden Sea. In order to achieve their protection purpose, the boundaries of protected areas might need to be shifted, resulting in potential conflict with other land use interests. In other cases, protected areas might be lost to the sea and species might move to a completely different area that is not qualified as a protected area. In this context, the implications of the Wadden Sea as a World Heritage site could also play a role. Furthermore, an examination of specific implications for World Heritage site at risk from climate change impacts would provide valuable insights. Another more general aspect that was mentioned in this thesis but could not be investigated further is public and stakeholder participation in (coastal) adaptation decision-making. Potential for further research also relates to questions of environmental/climate justice in the context of climate change adaptation at a range of different scales.

6.6

Coastal Adaptation: A Task for Generations

Emphasis was already given to the fact that sea level rise is inevitable and will continue over the next centuries.7 Nonetheless, its significant implications on coastal communities justify mentioning once again that adaptation to rising sea levels will be a life-long challenge for current and future generations. Adapting to changing (coastal) environments caused by rising sea levels or other climate change impacts are already becoming a permanent consideration. Accepting changes and adapting to them as a part of life might help to see that adaptation can also bring new opportunities. For example, when rethinking communities to make them more resilient could be combined with improving quality of life. Since any strategy concerns those living at the coast, coastal adaptation should take place in a dialogue with the affected coastal communities.

7

See above: Sect. 2.1.

References

325

References Hallegatte, S. (2009). Strategies to adapt to an uncertain climate change. Global Environmental Change, 19, 240–247. Noble, I. R., Huq, S., Anokhin, Y. A., Carmin, J., Goudou, D., Lansigan, F. P., et al. (2014). Adaptation needs and options, Climate change 2014: Impacts, adaptation, and vulnerability. Cambridge: Cambridge University Press. Ramm, T. D., Watson, C. S., & White, C. J. (2018). Strategic adaptation pathway planning to manage sea-level rise and changing coastal flood risk. Environmental Science and Policy, 87, 92–101.

Table of Legislation

Germany Federal and State Legislation Federal • Code of Administrative Court Procedure, Verwaltungsgerichtsordnung (VwGO) • Environmental Impact Assessment Act, Gesetz über die Umweltverträglichkeitsprüfung (UVPG) • Federal Act on Water Associations, Gesetz über Wasser- und Bodenverbände (WVG) • Federal Administration Act, Verwaltungsverfahrensgesetz (VwVfG) • Federal Building Code, Baugesetzbuch (BauGB) • Federal Constitutional Court Act, Gesetz über das Bundesverfassungsgericht (BVerfGG) • Federal Mining Act, Bundesberggesetz (BBergG) • Federal Nature Conservation Act, Bundesnaturschutzgesetz (BNatschG) • Federal Water Act, Wasserhaushaltsgesetz (WHG) • Federal Waterways Act, Bundeswasserstraßengesetz (WaStrG) • German Basic Law, Grundgesetz für die Bundesrepublik Deutschland (GG) • German Civil Code, Bürgerliches Gesetzbuch (BGB) • Joint Task of the Improvement of the Agrarian Structure and of Coastal Preservation, Gesetz über die Gemeinschaftsaufgabe “Verbesserung der Agrarstruktur und des Küstenschutzes (GAKG) • Leasehold Act, Gesetz über das Erbbaurecht (ErbbauRG) • Legal ordinance on Spatial Planning, Raumordnungsverordnung (RoV) • Spatial Planning Act, Raumordnungsgesetz (ROG)

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5

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Bremen • Bremen Construction Regulation, Bremische Landesbauordnung • Bremen Protection of Historic Monuments Act, Gesetz zur Pflege und zum Schutz der Kulturdenkmäler (DSchG HB) • Bremen State Expropriation Act, Enteignungsgesetz für die Freie Hansestadt Bremen • Bremen State Water Act, Bremisches Wassergesetz (BremWG)

Hamburg • • • •

Hamburg Construction Regulation, Hamburgische Bauordnung (HBauO) Hamburg State Expropriation Act, Hamburgisches Enteignungsgesetz Hamburg State Water Act, Hamburgisches Wassergesetz (HWaG) Legal ordinance on Private Flood Protection Works, Verordnung über private Hochwasserschutzanlagen (PolderO) • Legal ordinance on Public Flood Protection Works, Verordnung über öffentliche Hochwasserschutzanlagen (DeichO) • Legal ordinance on the Protection of the HafenCity against Storm surges, Verordnung zum Schutz vor Sturmfluten im Gebiet der Hafencity

Lower Saxony • Lower Saxonian Construction Regulation, Niedersächsiche Bauordnung (NBauO) • Lower Saxonian Dike Act, Niedersächsisches Deichgesetz (NDG) • Lower Saxonian Spatial Planning Act, Niedersächsisches Raumordnungsgesetz (NROG) • Lower Saxonian State Expropriation Act, Niedersächsiches Enteignungsgesetz (NEG) • Lower Saxonian State Nature Conservation Act, Niedersächsisches Ausführungsgesetz zum Bundesnaturschutzgesetz (NAGBNatSchG) • Lower Saxonian State Water Act, Niedersächsisches Wassergesetz (NWG)

Mecklenburg-Western Pomerania • Mecklenburg-Western Pomeranian Construction Regulation, Landesbauordnung Mecklenburg-Vorpommern (LBauO M-V) • Mecklenburg-Western Pomeranian State Expropriation Act, Enteignungsgesetz für das Land Mecklenburg-Vorpommern (EntG MV)

Table of Legislation

329

• Mecklenburg-Western Pomeranian State Nature Conservation Act, Gesetz des Landes Mecklenburg-Vorpommern zur Ausführung des Bundesnaturschutzgesetzes (NatSchAG M-V) • Mecklenburg-Western Pomeranina State Planning Act, Gesetz über die Raumordnung und Landesplanung des Landes Mecklenburg-Vorpommern (LPlG M-V) • Mecklenburg-Western Pomeranian State Water Act, Wassergesetz des Landes Mecklenburg-Vorpommern (LWaG MV)

Schleswig-Holstein • Legal ordinance on the Competences of the Water and Coastal Protection Authorities, Landesverordnung über die Zuständigkeit der Wasser- und Küstenschutzbehörden (WaKüVO) • Legal ordinance on the Establishment of the State Agency for Coastal Protection, National Parks and Marine Protection, Landesverordnung über die Errichtung des Landesamtes für Küstenschutz, Nationalpark und Meeresschutz (LKNVO) • National Park Act, Gesetz zum Schutze des schleswig-holsteinischen Wattenmeeres (NPG) • Schleswig-Holstein Construction Regulation, Landesbauordnung für das Land Schleswig-Holstein (LBO SH) • Schleswig-Holstein State Act on the Protection of Historic Monuments, Gesetz zum Schutz der Denkmale (DSchG SH) • Schleswig-Holstein State Expropriation Act, Gesetz über die Enteignung von Grundeigentum (EnteigG SH) • Schleswig-Holstein State Nature Conservation Act, Gesetz zum Schutz der Natur (LNatSchG SH) • Schleswig-Holstein State Planning Act, Landesplanungsgesetz SchleswigHolstein (LaplaG SH) • Schleswig-Holstein State Water Act, Wassergesetz des Landes SchleswigHolstein (WasG SH)

Other States • Baden-Württemberg State Planning Act, Landesplanungsgesetz (LplG BW) • Bavarian State Planning Act, Bayerisches Landesplanungsgesetz (BayLplG)

330

Table of Legislation

Statutes (Satzungen) • Bebauungsplan Hamburg-Altstadt 39/HafenCity 5 • Statute of the Bremen association for dike maintenance on the true left of the river Weser (Satzung des Bremischer Deichverband am linken Weserufer) • Statute of the Bremen association for dike maintenance on the true right of the river Weser (Satzung des Bremischer Deichverband am rechten Weserufer) • Statute of the Cuxhaven association for dike maintenance (Satzung des Cuxhavener Deichverbandes) • Statute of the Hambergen association for dike maintenance (Satzung des Wasserund Bodenverbandes Hambergen) • Statute of the III. Oldenburg association of dike maintenance (Satzung des III. Oldenburgischen Deichbandes) • Statute of the Krummhörn association for dike maintenance (Satzung der Deichacht Krummhörn) • Statute of the Norden association for dike maintenance (Satzung der Deichacht Norden) • Statute of the Ostereistedt-Rockstedt association for dike maintenance (Satzung des Wasser- und Bodenverbandes Ostereistedt-Rockstedt) • Statute of the Teufelsmoor association for dike maintenance (Satzung des Gewässer- und Landschaftspflegeverbandes Teufelsmoor)

State Wide and Regional Land Use Plans • • • •

Landesentwicklungsplan Schleswig-Holstein 2010 Landesraumordnungsprogramm Niedersachsen (LROP) Regionales Raumentwicklungsprogramm Vorpommern Regionales Raumentwicklungsprogramm Westmecklenburg

Generalplans on Coastal Protection • • • •

Generalplan Küsten-und Hochwasserschutz Mecklenburg-Vorpommern Generalplan Küstenschutz des Landes Schleswig-Holstein Generalplan Küstenschutz Niedersachsen/Bremen—Festland Generalplan Küstenschutz Niedersachsen—Ostfriesische Inseln

Table of Legislation

331

New Zealand Legislation • • • • • • • • • • • • • • • • • • • • • •

Accident Compensation Act 2001 (ACC) Building Act 2004 Civil Defence Emergency Management Act 2002 Climate Change Response Act 2002 Conservation Act 1987 Earthquake Commission Act 1993 Earthquake Commission Regulations 1993 Hauraki Gulf Marine Park Act 2000 Imperial Laws Application Act 1988 Local Government Act 1993 Local Government (Rating) Act 2002 Local Government Act 1974 (LGA 1974) Local Government Act 2002 (LGA) Local Government Official Information and Meetings Act 1987 (LGOIMA) Marine and Coastal Area (Takutai Moana) Act 2011 National Parks Act 1980 New Zealand Bill of Rights Act (NZBORA) Public Works Act 1981 (PWA) Reserves Act 1977 Resource Management Act 1991 (RMA) Senior Courts Act 2016 Soil Conservation and Rivers Control Act 1941 (SCRCA)

Planning Instruments • • • • • • • • • • • • •

Auckland Unitary Plan Hauraki District Plan New Zealand Coastal Policy Statement 2010 (NZCPS 2010) Regional Policy Statement for the Bay of Plenty Tasman Regional Policy Statement Tasman Resource Management Plan Thames-Coromandel Annual Plan 2017/2018 Thames-Coromandel Proposed District Plan The Waikato Regional Policy Statement—Te Tauākī Kaupapahere O Te Rohe O Waikato Waikato 2012–2022 Long Term Plan Waikato Regional Coastal Plan Waikato Regional Plan Whakatāne District Plan

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Table of Legislation

Determinations • • • •

Determination 2007/110 Determination 2011/115 Determination 2015/018 Determination 2017/048

Other Jurisdictions International Conventions • Convention concerning the Protection of the World Cultural and Natural Heritage • Paris Agreement • United Nations Framework Convention on Climate Change (UNFCCC)

European Union Law • Treaty on European Union (TEU) • Treaty on the Functioning of the European Union (TFEU) • Regulation (EU) No 1301/2013 on the European Regional Development Fund and on specific provisions concerning the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006 • Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (Floods Directive) • Directive 92/43/EEC on the conservation of natural habitats and of wild faunda and flora (Habitats Directive)

The Netherlands • Dutch Water Act (Waterwet)

Table of Cases

Germany Federal Consitutional Court • Bundesverfassungsgericht, Urteil on 15.01.1958, VerwRspr (1958) 419 (Lüth) • Bundesverfassungsgericht, Urteil on 18.12.1968, BVerfGE 24, 367 (Hamburgisches Deichordnungsgesetz) • Bundesverfassungsgericht, Urteil on 25.02.1975, BVerfGE 39, 1 (Schwangerschaftsabbruch I) • Bundesverfassungsgericht, Beschluss on 10.05.1977, BVerfGE 45, 297 (Voraussetzungen einer Legalenteignung; Gesetzgebungskompetenz der Länder) • Bundesverfassungsgericht, Beschluss on 21.12.1977, BVerfGE 47, 46 (Sexualkundeunterricht) • Bundesverfassungsgericht, Beschluss on 08.08.1978, BVerfGE 49, 89 (Kalkar I, Schneller Brüter) • Bundesverfassungsgericht, Urteil on 10.03.1981, BVerfGE 56, 249 (Zur Gesetzmäßigkeit der Enteignung) • Bundesverfassungsgericht, Beschluss on 14.07.1981, GRUR (1982) 45 (Pflichtexemplare) • Bundesverfassungsgericht, Beschluss on 15.07.1981, NJW (1982) 745 (Grenzen der Grundwasserbenutzung) • Bundesverfassungsgericht, Beschluss on 15.07.1981, BVerfGE 58, 300 (Nassauskiesung) • Bundesverfassungsgericht, Urteil on 19.10.1982, NJW (1983) 25 (Verfassungswidrigkeit des Staatshaftungsgesetzes) • Bundesverfassungsgericht, Urteil on 07.07.1992, NJW (1992) 2213 (Berücksichtigung von Kindererziehungszeiten in der gesetzlichen Rentenversicherung) © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5

333

334

• Bundesverfassungsgericht, Urteil on (Braunkohletagebau “Garzweiler II”)

Table of Cases

17.12.2013,

BVerfGE

134,

242

Federal Supreme Court • Bundesgerichtshof, Urteil on 16.10.1952, VerwRspr (1953) 222 (Enteignungsentschädigung bei Entziehung des Mietrechts) • Bundesgerichtshof, Urteil on 20.12.1956, NJW (1957) 538 (Sozialgebundenheit des Grundeigentums: Grünfläche) • Bundesgerichtshof, Urteil on 13.02.1964, VerwRspr (1964) 896 • Bundesgerichtshof, Urteil on 06.06.1966, NJW (1966) 1859 (Aufopferungsanspruch bei Ansteckung mit Pockenschutzimpfstoff) • Bundesgerichtshof, Urteil on 01.06.1970, BGHZ 54, 165 (Haftung eines Wasserverbandes und Bodenverbandes für Hochwasserschäden) • Bundesgerichtshof, Urteil on 05.03.1981, BGHZ 80, 111 (Seedeicherhöhung mit der Folge erhöhter Überschwemmungsgefahr für das Vordeichgelände) • Bundesgerichtshof, Urteil on 28.06.1984, BGHZ 92, 34 • Bundesgerichtshof, Urteil on 17.01.1985, NVwZ (1986) 76 • Bundesgerichtshof, Urteil on 12.03.1987, BGHZ 100, 136 (Haftung der öffentlichen Hand für verfassungswidriges formelles Gesetz) • Bundesgerichtshof, Urteil on 22.06.1989, NJW (1989) 2464 (Begriff der Seewasserstraße- Hohwachter Bucht) • Bundesgerichtshof, Urteil on 21.02.1991, NJW (1991) 2701 (Ausweisung ehemaligen Deponiegeländes zu Wohnzwecken) • Bundesgerichtshof, Urteil on 27.01.1994, NJW (1994) 858 (Irak-Embargo und Haftung der Bundesrepublik) • Bundesgerichtshof, Urteil on 24.10.1996, NJW (1997) 123 (Haftung der Mitgliedstaaten wegen Verstoßes gegen Gemeinschaftsrecht—Brasserie du Pecheur) • Bundesgerichtshof, Urteil on 21.06.2001, NJW (2001) 3054 (Amtshaftung wegen Erteilung einer rechtswidrigen Baugenehmigung)

Federal Administrative Court • Bundesverwaltungsgericht, Urteil on 22.06.1962, NJW (1962) 2171 • Bundesverwaltungsgericht, Urteil on 12.12.1969, VerwRspr (1970) 571 • Bundesverwaltungsgericht, Urteil on 12.12.1969, BVerwGE 34, 301 (Zur Bindung des gemeindlichen Planungsermessens—behördliche Aufsicht und Kontrolle durch Gericht) • Bundesverwaltungsgericht, Urteil on 17.02.1984, NVwZ (1984) 371 (Vorsorge gegen Ferntransport von Luftschadstoffen)

Table of Cases

335

• Bundesverwaltungsgericht, Urteil on 30.05.1984, NVwZ (1984) 718 (Planfeststellung für einen Verkehrsflughafen—München II) • Bundesverwaltungsgericht, Urteil on 19.12.1985, NVwZ (1986) 208 (Kernkraftwerk Whyl—Erste Teilgenehmigung) • Bundesverwaltungsgericht, Urteil on 06.07.1990, NVwZ-RR (1991) 13 (Befugnis zum wirtschaftlichen Abbau von Sand und Kies) • Bundesverwaltungsgericht, Urteil on 14.05.1992, NVwZ 1993, 477 • Bundesverwaltungsgericht, Beschluss on 15.06.1992, NVwZ (1993) 772 (Reglung von Inhalt und Schranken des Eigentums) • Bundesverwaltungsgericht, Beschluss on 26.06.1992, NVwZ 12 (1993) 572 (Straßenrechtliche Planfeststellung) • Bundesverwaltungsgericht, Beschluss on 05.03.2003, NuR 26 (2004) 520 • Bundesverwaltungsgericht, Urteil on 22.07.2004, NVwZ (2004) 1507

Higher Administrative Courts • Oberverwaltungsgericht Lüneburg, Entscheidung on 13.05.1996, BeckRS (2005) 21747 (Denkmalrechtliche Schutzwürdigkeit von Wurten) • Oberverwaltungsgericht Lüneburg, Beschluss on 16.07.2012, BeckRS (2012) 53915 • Oberverwaltungsgericht Nordrhein-Westfalen, Urteil on 21.07.2011, BeckRS 2011, 53676 • Oberverwaltungsgericht Nordrhein-Westfalen, Beschluss on 14.07.2014, ZfBR (2014) 774 • Oberverwaltungsgericht Schleswig-Holstein, Urteil on 19.06.1997, NuR (1998) 558ff • Verwaltungsgerichtshof Baden-Württemberg, Urteil on 10.06.2010, BeckRS (2010) 50785

Administrative Courts • Verwaltungsgericht Augsburg, Urteil on 11.11.2019, BeckRS (2019) 34022 (Ausübrung des Vorkaufsrechts durch das Wasserwirtschaftsamt) • Verwaltungsgericht Bremen, Urteil on 30.04.2014 (Planfeststellung für die Erhöhung von Hochwasserschutzanlagen) • Verwaltungsgericht Greifswald, Beschluss on 30.10.2019, BeckRS (2019) 32800 • Verwaltungsgericht Köln, Beschluss on 06.07.2005 • Verwaltungsgericht Oldenburg, Beschluss on 26.10.1999, NuR (2000) 398

336

Table of Cases

New Zealand Supreme Court • Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. [2014] NZSC 38 [2014] 1 NZLR 593 • Marlborough District Council v Altimarloch Joint Venture Ltd. [2012] NZSC 11 [2012] 2 NZLR 726 • North Shore City Council v Body Corporate 188529 (Sunset Terraces) [2010] NZSC 158 [2010] 2 NZLR 289 • Tower Insurance Ltd v Skyward Aviation 2008 Ltd. [2014] NZSC 185 [2014] 1 NZLR 341 • Waitakere City Council v Estate Homes Ltd. [2006] NZSC 112 [2006] 13 ELRNZ 33

Court of Appeal • • • • • • • • • • • •

Arrigato Investments Ltd v Auckland Regional Council [2001] 7 ELRNZ 193 Attorney-General v Body Corporate 200200 [2005] 1 NZLR 95 Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18 Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33 [2007] 13 ELRNZ 119 Craig v East Coast Bays City Council [1986] 1 NZLR 99 Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2013] NZCA 79 Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 Hume v Auckland Regional Council [2002] 8 ELRNZ 211 Logan v Auckland City Council [2000], on 09.03.2000, CA 243/99 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd; Mortensen v Laing [1991] 2 NZLR 282 Vining Realty Group Ltd v Moorhouse [2010] NZCA 104 [2010] 11 NZCPR 879

High Court (Including Former ‘Supreme Court’) • Attorney-General v Findlay [1919] NZLR 513 (Supreme Court of New Zealand) • Bartrum v Manurewa Borough [1961] NZLR 21 (Supreme Court of New Zealand)

Table of Cases

337

• Bayswater Marina Holdings Ltd v North Shore City Council [2009] 15 ELRNZ 258 (High Court) • Bosworth v Rodney County Council [1983], on 24.02.1983, A 350/81 (High Court) • Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZHC 2933 (High Court) • Doyle v Earthquake Commission [2009] NZRMA 546 (High Court) • Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2011] 1 NZLR 120 (High Court) • Eldrige v Beange [2005], on 30.09.2005, CIV-2002-485-902 (High Court) • Falkner v Gisborne District Council [1995] 3 NZLR 622 (High Court) • Francks v Canterbury Regional Council [2004], on 10.06.2004, CIV-2003-485001131 (High Court) • Henry v Auckland Council [2015] NZHC 435 [2015] 16 NZCPR 683 (High Court) • Ivan and Barbara Court v Dunedin City Council [1998] NZRMA 312 (High Court) • Lawson v Housing New Zealand [1996] 3 HRNZ 285 (High Court) • Man O'War Farm Ltd v Auckland Council [2017] NZHC 1349 (High Court) • Maruia Society Inc. v Whakatane District Council [1991], on 08.03.1991, CP 162/88 (High Court) • Monticello Holdings Ltd v Selwyn District Council [2015] NZHC 1674 [2015] 2 NZLR 148 (High Court) • New Zealand Rail Ltd v Marlborough District Council [1993] NZRMA 70 (High Court) • R J Davidson Family Trust v Marlborough District Council [2017] NZHC 52 [2017] 19 ELRNZ 628 (High Court) • Resource Planning & Management Ltd v Marlborough District Council [2003], on 10.10.2003, CIV-2001-485-814 (High Court) • Smaill v Buller District Council [1997] 1 NZLR 190 (High Court) • Urban Auckland v Auckland Council [2015] NZHC 1382 [2015] 18 ELRNZ 792 (High Court) • Weir v Kapiti Coast District Council [2015] NZHC 43 (High Court) • Weir v Kapiti Coast District Council [2013] NZHC 3522 [2013] 15 NZCPR 28 (High Court)

Environment Court and Former Planning Tribunal • Aubrey v Whangarei District Council [2017] NZEnvC 44 (Environment Court) • Bay of Plenty Regional Council v Western Bay of Plenty District Council [2002] 8 ELRNZ 97 (Environment Court) • Carter Holt Harvey HBU v Tasman District Council [2013] NZEnvC 25 [2013] 17 ELRNZ 239 (Environment Court)

338

Table of Cases

• Coastal Ratepayers United Inc v Kapiti Coast District Council [2017] NZEnvC 31 (Environment Court) • Gallagher v Tasman District Council [2014] NZEnvC 245 (Environment Court) • Gill v Rotorua District Council [1993] 2 NZRMA 604 (Planning Tribunal) • Hahei Developments Ltd v Thames Coromandel District Council [2003], on 23.12.2003, C 176/2003 (Environment Court) • Hemi v Waikato District Council [2010] NZEnvC 216 (Environment Court) • Kapiti Environmental Action Inc v Kapiti Coast District Council [2002] NZRMA 289 (Environment Court) • Kaupokonui Beach Society Inc v South Taranaki District Council [2008], on 19.05.2008, W 030/2008 (Environment Court) • Long Bay-Okura Great Park Society Inc v North Shore City Council [2008], on 16.07.2008, A 078/2008 (Environment Court) • MacDonald v Christchurch City Council [2002], on 03.10.2002, C 121/2002 (Environment Court) • Mahanga E Tu v Hawkes Bay Regional Council [2014] NZEnvC 83 [2014] 18 ELRNZ 419 (Environment Court) • Mason & Keall v Bay of Plenty Regional Council [2007], on 30.11.2007, A 098/2007 (Environment Court) • Meridian Energy Ltd v Wellington City Council [2007], on 14.05.2007, W 031/2007 (Environment Court) • Middlemiss v Canterbury Regional Council [2007], on 10.07.2007, C 097/2007 (Environment Court) • New Zealand Cashflow Control Ltd v Christchurch City Council [2003], on 10.05.2003, C 060/2003 (Environment Court) • Ohawini Bay Ltd v Whangarei District Council [2006], on 01.06.2006, A 068/06 (Environment Court) • Otago Regional Council v Dunedin City Council [2010] NZEnvC 120 [2010] NZRMA 263 (Environment Court) • Save the Bay v Canterbury Regional Council [2001], on 19.01.2001, C 006/2001 (Environment Court) • Save the Point Inc v Wellington City Council [2007], on 20.09.2007, W 082/2007 (Environment Court) • Southern Environmental Association v Wellington City Council [2010] NZEnvC 114 (Environment Court) • Sustainable Ventures Ltd v Tasman District Council [2012] NZEnvC 235 (Environment Court) • Trio Holdings v Marlborough District Council [1996] 2 ELRNZ 353 (Planning Tribunal) • Trustees of Tuhua Trust Board v Minister of Local Government [2012] NZEnvC 202 [2012] 17 ELRNZ 93 (Environment Court) • Van Dyke v Tasman District Council [2014] NZEnvC 1 (Environment Court) • Waterfront Watch v Wellington Regional Council [2009], on 09.06.2009, W 043/2009 (Environment Court)

Table of Cases

339

Other Jurisdictions Court of Justice of the European Union • Court of Justice of the European Union, on 05.02.1963, C-26/62, Van Gend en Loos v. Administratie der Belastingen • Court of Justice of the European Union, on 15.07.1964, C-6/64, Costa v. E.N.E.L.

European Court of Human Rights • • • •

European Court of Human Rights, on 13.06.1979, Case of Marckx v. Belgium European Court of Human Rights, on 20.03.2008, Case of Budayeva v. Russia European Court of Human Rights, on 15.05.2012, Hadzhiyska v. Bulgaria European Court of Human Rights, on 17.11.2015, Case of M. Özel and Others v. Turkey

United Kingdom • Belfast Corporation v O. D. Cars Ltd., (1959) AC (House of Lords) • Cassell & Co Ltd v Broome, AC 1027; 2 WLR 645 [1972] 3 UKHL (House of Lords) • East Suffolk Rivers Catchment Board v Kent, [1941] AC 74 [1940] 3 UKHL (House of Lords) • Hedley Byrne & Co Ltd v Heller & Partners Ltd., [1964] AC 465 [1963] 3 WLR 101 (House of Lords) • Webb v Minister of Housing and Local Government, [1965] 755 WLR 259 (Court of Appeal of England and Wales)

Annex I: Important Translated Terms

Baugenehmigung Bauliche Anlage Beachten Bebauungsplan Bemessungshochwasserstand Berücksichtigen Bestandsschutz Bundesgerichtshof Bundesverfassungsgericht Bundesverwaltungsgericht Deichverband Enteignender Eingriff Enteignungsrechtliche Vorwirkung Flächennutzungsplan Gegenstromprinzip Gemeinwohlaufgabe Generalplan Küsten-und Hochwasserschutz Grundsatz der Raumordung Inhalts- &Schrankenbestimmung Landesweiter Raumordnungsplan/ Landesentwicklungsplan Oberverwaltungsgericht/Verwaltungsgerichtshof Planfeststellungsbeschluss Planfeststellungsverfahren Plangenehmigung Raumbedeutsam Rechtsverordnung Regionalplan

Building permit Engineered structure To be observed Specific municipal land use plan Storm tide water level for dike design Take into account Grandfathered rights Federal Supreme Court Federal Constitutional Court Federal Administrative Court Association for dike maintenance Indirect expropriation Expropriation pre-effect General municipal land use plan Mutual feedback principle General interest task General coastal and flood protection plan Basic principle of spatial planning Definition of content and limits of property State-wide land use plan Higher Administrative Court Project approval Project approval procedure Simplified project approval Area significance Legal ordinance Regional land use plan (continued)

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5

341

342 Satzung Situationsgebundheit des Eigentums Umweltprüfung Verwaltungsgericht Vorbehaltsgebiet Vorranggebiet Wasserverband Wesentlichkeitstheorie Wohl der Allgemeinheit (Art. 14) Ziel der Raumplanung

Annex I: Important Translated Terms Statute Situational characteristic of real property Environmental audit Administrative Court Reserve area Priority area Water association Rule against delegation of essential decisions Public good Objective of spatial planning

Annex II: Terminology of the Main Coastal Adaptation Actions

English term used Buffer zone Dike

Dune Dwelling mound Flood protection walls Flood-resistant design Groyne Groyne for land reclamation Managed retreat

Polder Revetment Sand nourishment

Other terms/spellings used in review literature

Dyke Levee Stopbank Embankment Floodbank

German terms Flächenhafter Küstenschutz (Vorlanderhaltung, Pufferzonen) Deich

Düne Warft, Wurt Hochwasserschutzwand/-mauer Flood-proofing

Angepasstes Bauen

Groin

Buhne Lahnung

Planned retreat planned relocation managed realignment dike realignment dike (re)opening de-embankment de-polderisation

Qualifizierter Rückzug

Beach nourishment beach re-nourishment beach replenishment beach recharge beach fill

Polder, Koog Deckwerk Sandaufspülung, Sandvorspülung

(continued) © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 L. Schumacher, The Law of Coastal Adaptation, https://doi.org/10.1007/978-3-030-48962-5

343

344

English term used

Seawall Spatial planning

Annex II: Terminology of the Main Coastal Adaptation Actions Other terms/spellings used in review literature beach feeding dune nourishment dune replenishment Revetment

German terms

Uferschutzwand Raumplanung