Flooding and legal liability – what are we seeing? – Land & Agriculture Law | Media Pyro


Recent and ongoing flood events raise legal issues. These include flood risk management and development in flood-prone areas, the responsibility of local authorities for decisions that increase the risk of residents and businesses from flood events, and corrective measures to correct past decisions.

Flood risk management

An increase in the frequency and intensity of flooding due to factors such as changing land use patterns and climate change will have devastating effects on housing, agriculture, businesses and infrastructure. public and private.

According to the Australian Disaster Resilience Handbook (Handbook 7), one way to address this is to control development in high-risk areas and move towards safer areas.

Planning projects determine the permitted land use and development. In Victoria, for example, there are many planning policies that address flood risks. The Urban Flood Zone can be used to prevent inappropriate land uses in areas prone to flooding, and overlays such as Floodplain Overlay, Subsoil in the Flood, and the Special Housing Plan to control the development.

The map for the application of these planning powers to the country is based on flood prediction modeling and data from previous flood events. Since data from past flood events do not accurately predict future events, this raises the possibility that flood-prone areas are not included in the planning process.

What is the responsibility of public authorities for legal decisions and strategic planning decisions that have the effect of allowing the use and development in areas that are now unsafe?

Case studies

Notable examples include the 2011 Grantham floods in South East Queensland. Almost every building in the city’s flood zone suffered structural damage in what was described as a “tsunami inland.” 17 lives were lost.

In partnership with the Queensland Regeneration Authority, the Lockyer Valley Regional Council responded by coordinating the relocation of the town. Just months after the flood, it was announced that a 935-acre site had been purchased to host a voluntary land transfer program. This gave residents the opportunity to move to higher ground, with some eligible for government assistance to build a new location. The new area was zoned for community projects, residential, rural living, sports and recreation, and open space to encourage residents and businesses to move.

As of 2020, 80 families live in the relocated area. In February 2022, the area was again flooded by flood waters but those in the new development were able to avoid the damage.

Another example is Grand Forks, Canada. After the floods in 2018 destroyed 500 houses, the local council received funds from local and provincial governments to strengthen flood mitigation activities, including funding to get 80 houses in flood prone areas. These acquired buildings must be demolished. According to reports, the houses were taken at their value after the flood, which means that many of the residents have much less money than they expected.

Will the decisions be saved during emergencies?

Another issue related to flooding and the responsibility of public authorities is related to emergency decisions. Is there any kind of protection for decision makers in such difficult situations?

After the 2019/20 Black Forest Summer, the National Emergency Declaration Act 2020 (Cth) was introduced to allow the federal government to respond to disasters. As part of that Act, certain provisions of other laws may be waived in the event of a national emergency.

In early 2022, then Prime Minister Scott Morrison declared a national emergency in response to flooding in northern NSW. This declaration was accompanied by flood relief funds and relief efforts. Disaster payments were made to affected households, and other recovery services such as mental health care, food assistance and financial counseling were also paid for.

In Victoria, the Emergency Management Act 1986 (Vic) to the definition of an emergency as “the actual or imminent occurrence of an event which endangers or threatens to endanger the safety or health of any person . damage or damage . any property or threaten the environment.” This includes flooding.

The Victorian Water Act 1989 contains provisions that address liability for water discharges that cause harm. One of the factors to be considered in determining liability is the flow of water caused by the construction, removal or alteration of a fence in accordance with the Victoria State Emergency Service Act 2005, and if a response to an emergency. under the Emergency Management Act 2013 (Vic).

Caselaw also stipulates that if the flood is severe enough, there is no liability. There is a liability based on the decisions of the managers of the Murray Basin storage facilities to release a small amount of water directed into the wet reservoir, so the water from those storage facilities must be released at times of flooding? What damage was done to 245 properties around the Maribyrnong River flood? Was this made worse by the flood wall surrounding Flemington racecourse? Can it flood, though?

Key takeaways

Authorities seek to address flood risk and development in flood-prone areas. An outdated or inaccurate map increases the risk of insecurity. Public authorities may be responsible for decisions that put residents and businesses at greater risk. If a liability arises, the main reasons include if the decisions were made in an emergency situation, or if the damage of the water flows was stronger than the reasonable decision, if the amount of the event that harm occurs.

This publication does not cover all major events or legal changes and is not intended to be relied upon as a substitute for legal advice or other advice relevant to the reader’s particular circumstances. If you have found this publication relevant and would like to know more, or would like to obtain legal advice relating to your circumstances please contact one of the people named.


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