Flooded By Regulation: Determining the Role of Planning Law in Exacerbating Disaster Risk

Abstract

If there is a truth that needs to be universally acknowledged, it is that earth’s climate is changing, with consequences that include more frequent and dramatic climate related disasters. In this thesis I examine one species of disaster - floods - to explore legal strategies and mechanisms to avoid harm and mitigate risks to life and property.

I contend that governments play a role in exacerbating flood disasters through inadequate regulation of land use planning. In consequence I also contend that governments have a responsibility to utilise the institutions at their disposal to mitigate flood disasters consistent with their commitments under international frameworks and conventions for disaster risk reduction and human rights. In order that nation states may do this effectively, I argue that a new approach is required to the way in which laws governing land use are utilised. It is an approach that positions the vulnerable subject at the core of the juridical order.

Accepting the established understanding that natural disasters are anthropogenic – being the inability of human beings to cope with a hazard – it is my thesis that the NSW Government plays a fundamental role in exacerbating flood disasters through inadequate regulation of land use and that a new approach to planning law is required which positions the vulnerable subject at the centre of land use decision-making. Building upon the key tenants of Fineman's Vulnerability Theory, I develop a diagnostic tool for identifying how planning laws exacerbate flood disasters, and how laws can be reformed to mitigate such events. I conclude by positing the application of this diagnostic tool across jurisdictions and hazard type, offering governments a new lens through which to view and apply planning law to achieve disaster risk reduction.