Australia: New Queensland Floodplain Guidelines to manage development in floodplain areas
From the Ground Up

The Queensland Premier and Reconstruction Minister, Anna Bligh recently announced a floodplain mapping initiative undertaken by the Queensland Government, the purpose of which is to assist local governments in managing development on floodplains.

It has done this through the publication by the Queensland Reconstruction Authority (QRA) of guidelines and an online interactive map, which local governments can use in assessing applications for development in flood affected areas. Is this the 'start of a journey to improve floodplain management throughout Queensland', or has the State Government missed the tide?

Development decisions involving flood

Whereas the Sustainable Planning Act 2009 (QLD) (SPA) requires local governments to achieve ecological sustainability by managing the effects of development on the environment¹, the SPA does not expressly require local governments to address flooding when preparing a planning scheme or assessing development. The core matters for which a planning scheme must make particular provision are given in section 89 of the SPA. One of those core matters is land use and development (including development constraints). The Act does not specifically refer to flooding as a core matter for which provision must be made, rather it is State Planning Policy 1/03 Mitigating the Adverse Impacts of Flood, Bushfire and Landslide (SPP 1/03) that identifies flooding as a development constraint.

SPP 1/03 took effect on 1 September 2003. The purpose of the policy is to set out the state's interest in ensuring that natural hazards, such as flood, are adequately considered when making decisions about development². When assessing development applications against SPP 1/03, development that is located within a Natural Hazard Management Area (NHMA) (as defined in A3.1 of Annex 3 to the policy) must be compatible with the nature of the NHMA3. A NHMA (flood) is land inundated by a defined flood event, an event a local government can define itself (eg from an actual recorded event), or it can adopt the alternative appropriate flood event provided under A3.2 Annex 3 to the policy⁴.

It is relevant that the identification of the NHMA (flood) is dependent on the local government adopting a flood event for the management of a development in a particular locality and also requires identification of the affected area in the planning scheme. If the local government decides, for whatever reason, not to do this, SPP 1/03 effectively does not apply because the assessment of the compatibility of proposed development with a SPP 1/03 NHMA (flood) is only possible where a local government has identified a flood event and also identified the affected area, something a local government could only do if it had carried out the necessary flood studies.

Responsibility at a local level

One of the difficulties a local government might have in attempting to adopt a flood event is determining exactly what that flood event is. The local government might lack the capacity and the ability to obtain the data necessary to determine the event, as obtaining the data may require a comprehensive floodplain management study beyond the budget of the local government.

In an apparent response to many local governments' limited capacity and resources to perform a flood study, on 17 September 2011 the QRA partnered with the Department of Local Government and Planning to implement Temporary State Planning Policy 2/11(TSPP 2/11), which takes effect from 14 November 2011. TSPP 2/11 suspends paragraphs A3.1 and A3.2 of Annex 3 of SPP 1/03 then effectively renews them but includes, as part of the definition for an NHMA (flood), flood mapping and a code against which development located in the flood mapped area can be assessed⁵.

The flood map, or Interim Floodplain Assessment Overlay Map (interactive map available online), and the Interim Floodplain Assessment Overlay Model Code are packaged under part one, Interim measures to support floodplain management in existing planning schemes of the State Government's Planning for stronger, more resilient floodplains (Guidelines)⁶. Like TSPP 2/11, the Guidelines were released on 17 September 2011. The Guidelines provide local governments with a flood map they may use to determine whether development proposed under a development application lies within a floodplain and if it does, to then assess the application against the code⁷.

A local government can bring the flood map into the planning scheme by including an additional overlay entitled Interim Floodplain Assessment Overlay that includes reference to the Interim Floodplain Assessment Overlay Map and the Interim Floodplain Assessment Overlay Model Code.

The Model Code can be incorporated into the planning scheme either by reference under the Interim Floodplain Assessment Overlay or as an additional code to the planning scheme. Where a planning scheme adopts the Interim Floodplain Assessment Overlay⁸, development that falls within the Interim Floodplain Assessment Overlay mapped area can be assessed against the Model Code.

Under the Guidelines, local governments have the freedom to decide the type of development to which the Model Code will apply and can use the Model Code to change the level of assessment of development⁹. The Model Code courageously declares that an acceptable response to flooding potential is that all new buildings are to be located outside the Interim Floodplain Assessment Overlay area, but with subsequent poltroon provides that new buildings may be located within the overlay area as long as they are located on the highest part of the site or that they simply be elevated¹⁰.

Bound in the shallows

SPP 1/03 effectively transferred the responsibility for making flood studies to local government¹¹, but with some local governments unable (or unwilling) to perform the necessary flood studies and the fact that the responsibility could be displaced if a flood study was not carried out, local governments failed to activate the policy in their planning schemes. The State Government then introduced TSPP 2/11, and as a consequence local governments will be able to assess development against the State Government's Interim Floodplain Assessment Overlay mapping and the Model Code without having to perform their own flood studies. But what has not changed is the local government's discretion to give effect to the policy; there is still no obligation on a local government to adopt an Interim Floodplain Assessment Overlay. This is not to say that the State Government could not compel a local government to assess development against the Interim Floodplain Assessment Overlay mapping and the Model Code¹². Nevertheless, by making the adoption of the Interim Floodplain Assessment Overlay discretionary, it enervates the Guidelines.

Why might a local government decide not to accept the Guidelines? Perhaps because a number of questions on liability and risk emerge. In adopting the Interim Floodplain Assessment Overlay, who would now liable if there was flood damage to development located in a Floodplain Assessment Overlay area? Does a local government avoid liability if it decides, despite TSPP 2/11, not to adopt an Interim Floodplain Assessment Overlay¹³? What is the consequence for developers who lose the opportunity to develop existing land within an overlay area and could a change in a planning scheme to reflect TSPP 2/11 give rise to a claim for compensation under chapter 9, part 3 of the SPA? If a local government has not adopted a flood event for the management of development and has not indentified the affected area in a planning scheme (and so not applied the policy), has it failed to comply with the SPA, not having made particular provision for a development constraint¹⁴?

While the Guidelines give the promise of greater resilience in land use planning through constraining development on floodplains, it is not clear that this is really what is being sought. In fact the Guidelines may do little, if anything, to ensure the risks associated with locating new development on floodplains are avoided, and appear only to transfer liability from state to local government level15. In all, an opportunity to ensure stronger and more resilient floodplains may be missed.

Footnotes

¹ Section 3 Sustainable Planning Act 2009 (QLD), but note the SPA does not require the effect of the environment on development to be managed.
² Decisions include those made when development applications are assessed, when planning schemes are made or amended and when land is designated for community infrastructure.
³ That is, the important characteristics of the hazard including the type of hazard and its severity.
⁴ Which is the 1% Annual Exceedance Probability flood, and as is explained in the Guidelines, is a flood event that has a 50.3% probability of occurring within a 70-year period.
⁵ The mapping provided by Queensland Reconstruction Authority can be adopted as is, or amended by a local government.
⁶ Part two, Standard planning scheme provisions and flood study template, promises to provide 'more detailed floodplain assessment guidance' (part one being an interim measure only) when it is released in November 2011.
⁷ It is not obvious, but is crucially important, as to whether the flood mapping takes into account extent, depth or flow characteristics. The Guidelines allow a local government to adopt its own flood levels, which are then used to assess building applications against the proposed Queensland Development Code. Local governments are encouraged to use the Guidelines for strategic planning purposes and to trigger building assessment provisions for construction of buildings in 'flood hazard areas'. The Guidelines note that the Australian Building Codes Board has prepared a draft national Standard of Construction of Buildings in Flood Hazard Areas, which is scheduled to be introduced in the Building Code of Australia in 2013 (and proposed for earlier adoption as a new mandatory part of the Queensland Development Code).
⁸ The Interim Floodplain Assessment Overlay can purportedly be adopted into a planning scheme through a minor planning scheme amendment, which avoids public consultation on what could reasonably be considered to be a significant amendment.
⁹ Under the Model Code, single storey slab on ground housing is considered to be inappropriate on land within an Interim Floodplain Assessment Overlay mapped area, but curiously, the Guidelines suggest that a 'Queenslander'-style house is an appropriate design for residential dwellings in flood-affected areas whereas there is no mention of the appropriate design features. For example, there may be different structural requirements for buildings situated in a flow path to those subject only to backup. There is no mention of appropriate construction materials. In further measures, the Model Code seeks to avoid increases in water flow by prohibiting alteration to watercourses or floodways, including through vegetation clearing, and requires hazardous material to be located above the flood level. However there is no mention of such things as the siting of effluent disposal systems or water supply.
¹⁰ There is no mention of the height to which the dwelling must be elevated or how any risk is avoided where the highest point of the land is below the flood level. For example, there is no consideration given to development in places where the land may be below the nominal flood level but protected by a levee.
¹¹ SPP 1/03 also provides a standard method for undertaking flood studies. There are several advantages to this. For example, a standard method enables local governments to develop planning schemes that deal with flooding in a way comparable to that of other local governments and provides uniformity in regionally based studies.
¹² The State Government could direct the local government to reflect TSPP 2/11 in its planning scheme. Under chapter 3, part 6 of the SPA, the Minister may direct a local government to amend its planning scheme to give effect to an interest that affects an environmental or economic interest of the state, including sustainable development.
¹³ It is perhaps questionable whether liability could be entirely displaced when a local government can still take flooding into account even if SPP 1/03 was not required to be reflected in the planning scheme.
¹⁴ Some of these questions may be more easily answered once the Queensland Floods Commission of Inquiry delivers its final report on 24 February 2012. 15 TSPP 2/11 may in effect increase local government liability by obliging the local government to adopt a code that appears not to deal adequately with flood risk.

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