Posted on November 16, 2023 by Megan Hawley and
New Flood Risk Management Manual: Liability implications
On 10 November 2023, the Environmental Planning and Assessment Amendment (Flood Planning) Regulation 2023 (EPA Reg Amendment) was published on the NSW legislation website. It amended the Environmental Planning and Assessment Regulation 2021 (EPA Reg) and replaced references to the Floodplain Development Manual, published by the NSW Government in April 2005 (2005 Manual), with references to the new Flood Risk Management Manual, published by the NSW Government in June 2023 (2023 Manual).
The Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023 was also published on the NSW legislation website on 10 November 2023 and amended clauses 5.21 and 5.22 and Schedule 1 of the Standard Instrument (Local Environmental Plans) Order 2006, replacing references to the 2005 Manual with references to the 2023 Manual.
On the same day, the State Environmental Planning Policy Amendment (Flood Planning) 2023 was made which inserted a new cl5.22 into numerous local environmental plans dealing with ‘special flooding considerations’.
Implications under the EPA Act
Section 10.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) provides that a person may apply to a council for a planning certificate with respect to any land within the area of the council, following which the council shall, as soon as practicable, issue a planning certificate specifying such matters relating to the land to which the certificate relates as are prescribed by the EPA Reg.
The EPA Reg requires a s10.7(2) planning certificate to specify whether the land or part of the land to which the certificate relates is:
- within a flood planning area and subject to flood related development controls (cl9(1) of Schedule 2); or
- between the flood planning area and the probable maximum flood and subject to flood related development controls (cl9(2) of Schedule 2).
Following the EPA Reg Amendment, ‘flood planning area‘ and ‘probable maximum flooding‘ have the same meaning as in the 2023 Manual.
Under s10.7(5), of the EPA Act a council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware. Section 10.7(6) specifies that, in doing so, a council shall not incur any liability in respect of any advice provided in good faith.
Clause 5.21 in local environmental plans defined flood planning area by reference to the 2005 Manual, despite the 2023 Manual having been gazetted in June, until 10 November. That has now been corrected, so consistently, a flood planning area will be defined for the purposes of the EPA Reg and local environmental plans by reference to the 2023 Manual.
Implications under the LG Act
Section 733(1) of the Local Government Act 1994 (LG Act) exempts councils from liability in respect of advice furnished, or anything done or omitted to be done in good faith relating to the likelihood of any land being flooded or the nature or extent of any such flooding. The exemption applies, amongst other circumstances:
- in the preparation or making of an environmental planning instrument, or a development control plan, or the granting or refusal of consent to a development application (s733(3)(a)); and
- to advice furnished in a planning certificate (s733(3)(d)).
Under section 733(4) of the LG Act, a council is, unless the contrary is proved, taken to have acted in good faith if the advice was furnished, or the thing was done or omitted to be done substantially in accordance with the principles contained in the relevant manual most recently notified under subsection (5). The 2023 Manual was notified on 30 June 2023 by the Minister for Planning in accordance with subsection (5) and is therefore the relevant manual.
Section 733(7) has the effect that the protection afforded by s733 applies to persons other than councils, including the Crown, a statutory body representing the Crown and a public or local authority constituted by or under any Act.
Significance for Councils and Other Government Agencies
Councils will need to ensure that if the change to the definitions in the EPA Reg to refer to the 2023 Manual could alter which properties are within a flood planning area or between the flood planning area and probably maximum flood, that their systems are updated so that planning certificates issued under section 10.7(2) are accurate.
Council and other agencies will need to substantially comply with the principles of the 2023 Manual in order to give themselves the best possibility of having the statutory protection from civil liability under s733 of the LG Act in connection with their planning actions. Although s10.7(6) of the EPA Act does not specifically call up the 2023 Manual (or any manual), compliance with widely accepted manuals and guidelines assists in arguing that actions taken are reasonable wand have been taken in good faith.
Importantly, substantial compliance with the 2023 Manual only gives rise to a presumption of good faith under s733. This can be rebutted by evidence of a lack of good faith.
The 2023 Manual: towards a flood risk management framework
As with the 2005 Manual, the 2023 Manual assists in the development and implementation of strategies to help councils manage flood risks and in doing so, achieve the primary objective of the NSW Government’s Flood Prone Land (Policy) (consistent in both the 2005 Manual and 2023 Manual), which ‘is to reduce the impacts of flooding and flood liability on communities and individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods, utilising ecologically positive methods wherever possible.‘
Also consistent with the 2005 Manual, a key element of the 2023 Manual is the formulation and implementation of flood risk management plans (FRM Plans) – formerly called floodplain risk management plans – which are developed as part of a broader flood risk management process (FRM Process) – formerly called the floodplain risk management process.
Unlike the 2005 Manual, however, the 2023 Manual integrates both FRM Plans and the FRM Process within a broader flood risk management framework (FRM Framework). It is intended that councils apply the FRM Framework, including the FRM Process, guided by the following 10 principles which are intended to achieve the primary objective of the Policy:
- Establish sustainable governance arrangements;
- Think and plan strategically;
- Be consultative;
- Make flood information available;
- Understand flood behaviour and constraints;
- Understand flood risk and how it may change;
- Consider variability and uncertainty;
- Maintain natural flood functions;
- Manage flood risk effectively; and
- Continually improve the management of flood risk.
These are the principles which must be substantially complied with for the purposes of the good faith defence under s733 of the LG Act. The 2023 Manual does not just list the above principles but provides significant detail in respect of each. It could be a difficult task to demonstrate substantial compliance with the principles.
The FRM Framework requires councils to undertake activities, outside of the FRM Process, which are aligned with the policy and the principles of the 2023 Manual. These activities include:
- strategic FRM activities, including monitoring current FRM activities and implementing a vision, objective and principles for FRM within the context of their own LGA;
- core FRM activities, which are outside the strategic FRM activities and the FRM Process and include obtaining and maintaining the best available information on flooding, the limitations of information, community engagement and post-flood data collection and analysis; and
- activities to consider the ways in which flooding impacts decision-making and presents risks to local communities, such that councils (in consultation with the State Government) can more effectively plan for flooding, develop infrastructure and rebuild if a flooding event does occur.
These FRM Framework activities are separate from and in addition to the development and implementation of FRM Plans via the FRM Process, although there is considerable overlap such that the FRM activities feed into the development, implementation and ongoing review of FRM Plans.
Flood risk management toolkit
The FRM Framework activities are supported by FRM guideline AG01, which contains additional advice on the delivery of those activities under the FRM Framework and FRM Process AG01 is itself part of a larger suite of flood risk management resources that, together, form the flood risk management toolkit (FRM Toolkit).
The FRM Toolkit complements the 2023 Manual and provides support and technical assistance to councils in managing the risk of floods in their communities by providing general guidance, resources to better understand flood behaviour and managing flood risk, support for flood emergency management planning, and additional guidance.
Following publication of the 2023 Manual, councils should:
- ensure their systems are up to date to properly identify land in the flood planning area and between the flood planning area and probable maximum flood as defined in the 2023 Manual;
- act substantially in compliance with the principles of the 2023 Manual in making planning decisions and providing advice on flooding;
- ensure their policies and planning instruments adequately reflect the principles of the 2023 Manual as complemented by the FRM Toolkit; and
- comply not only with the FRM Process in developing FRM Plans, but also with the broader FRM Framework.
Flood risk management manual: The policy and manual for the management of flood liable land (2023 Manual).
Floodplain Development Manual: the management of flood liable land (2005 Manual).
Flood risk management toolkit (FRM Toolkit).
AG01 Administration Arrangements Guideline.
If you require advice to ensure you are compliant with the principles in the 2023 Manual, or if you have any questions about this post, please leave a comment below or contact Megan Hawley on 02 8235 9703.