Response to the NSW Flood Inquiry – What Next?

Floodplains should be treated as an asset, specialising in uses that are productive, but with minimal risk to life.
Australia Real Estate and Construction
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In August 2022 the report of an independent NSW Flood Inquiry (Inquiry) was released. The Report makes a number of recommendations concerning flood preparation in land use planning, management and building standards for existing and future developments. The Inquiry was launched following the catastrophic flood events that occurred in early 2022. The recommendations followed findings that emergency services and NSW government agencies were unprepared for the significant flooding events that occurred. The recommendations in the report produced in connection with the Inquiry are in addition to those that were the subject of the flood-prone land package which commenced on 14 July 2021, refer to our previous article, New Flood Planning Provisions to take effect on 14 July 2021. Relevant recommendations by the Inquiry include:

  • simplifying the state planning processes by introducing a 'special flood considerations' clause (Special Flood Considerations Clause) under clause 5.22 of the Standard Instrument LEP;
  • encouraging cooperation between the state and local governments to form strategies addressing flood risks in developments and minimising the number of people living below the flood planning level which will ultimately be fed into a 'disaster adaptation plan' for each city and town (Disaster Adaptation Plans); and
  • facilitating the NSW government's adoption of guiding principles for floodplain management that treat floodplains as assets for uses are both productive but also minimise risk to life during major weather events (Floodplains as Assets).

Special Flood Considerations Clause

In 2021, 32 local councils self-nominated to amend their LEPs by inserting the special flood considerations clause 5.22 which would apply to:

  • sensitive and hazardous development, such as caravan parks, hospitals and seniors housing and tourist and visitor accommodation, between the flood planning area and the probable maximum flood level; and
  • development that is not sensitive or hazardous on land that the consent authority considers that, in a flood, may pose a particular risk to life and where people may need to evacuate, or where there are other safety concerns.

Where the clause applies, it provides that development consent must not be granted to development on land unless the consent authority is satisfied that the development:

  1. will not affect the safe occupation and efficient evacuation of people in the event of a flood; and
  2. incorporates appropriate measures to manage risk to life in the event of a flood; and
  3. will not adversely affect the environment in the event of a flood.

Following the Inquiry, the Department also sought feedback on whether the special flood considerations clause should in fact be applied to all NSW councils through either the insertion of this provision in all NSW council LEPs or amendment to the State Environment Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Between 17 January and 28 February 2023 an explanation of intended effect (EIE) was on public exhibition. In summary, the EIE provides that the proposed clause is intended to reduce the extent of property damage and loss of life arising from extreme flooding events.

The largest implication of this recommendation if adopted and applied to all NSW LEPs is the potential barring of certain development consent in all local councils for 'sensitive and hazardous developments' (such as caravan parks and hospitals) falling below the standards for flood risk management. At the time of this writing, the Department is considering feedback provided in response to the EIE before determining how it will implement the clause to all councils (be this through council LEPs or the Resilience and Hazards SEPP).

Disaster Adaptation Plans

The Inquiry recommended formulating new planning strategies at the local and state level to adapt to the risk of natural disasters and minimise the population living below the flood planning level. It was specifically suggested that:

  • a disaster adaptation plan be made for each city and town (completed within three years for high risk areas and five years for all other areas) accounting for evacuation possibilities, modelling the impact of likely potential disasters and discouraging (or forbidding) new developments in planning instruments;
  • an accreditation process be implemented for local councils as to the adequacy of their disaster adaptation plans as well as their linkages with Strategic Plans and LEPs;
  • pre-existing developments in disaster-prone areas have sufficient evacuation routes; and
  • modifications to existing buildings in disaster-prone areas should only be approved if they "maximally address the relevant risk".

The primary objective of this recommendation is targeted at:

  • discouraging (or forbidding) development in disaster-prone areas; and
  • compliance with hazard risk management standards for local councils and existing developments.

It is understood that whilst NSW Government supports this recommendation in principle, it considers that further work needs to be done on its implementation (specifically focused on its implications and delivery timeframes in conjunction with community consultation).

Floodplains as assets

The Inquiry recommended that the NSW Government proactively treat floodplains "as an asset, specialising in uses that are productive and minimise risk to life" during natural disasters. This involves developing floodplains to support sporting and recreational activities, garden plots and community gardens, agriculture and forestry, renewable energy production, biodiversity offset, parks and outdoor recreation activities. The aforementioned guiding principles for the NSW Government to achieve this cover:

  • the progressive transition of floodplain ownership to NSW Government leasehold potentially by land buybacks or land swaps;
  • developing the floodplain in parallel with developing urban structures near the edge of the floodplain such as developing high-rises where owners are given automatic rights and access to the floodplain amenities;
  • letting watercourses largely flow naturally rather than implementing engineering barriers to stop floods; and
  • communicating the intention to use planning arrangements that will lead to greater safety and community.

The NSW Government has stated that it supports this recommendation in principle and, as an initial step, is looking for options to pilot this approach in the Northern Rivers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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