In the April 2022 issue of the Australian Journal of Emergency Management my friend and colleague Professor Steve Dovers says:
Bluntly, the job of emergency management and disaster policy is to prepare for, and then cope with, problems caused by vulnerabilities created by other policy sectors. Houses in risky locations, people in vulnerable situations and assets at risk from natural hazards are often in such circumstances because of decisions or non-decisions made in land-use planning, development approval, transport, infrastructure, housing, public health, communications and elsewhere. Those policy sectors may overlook or pay scant attention to DRR when decisions are made. Indeed, it might not be part of their mandate.
An example of that can be seen in the decision by Commissioner Dickson of the Land and Environment Court in OM Vinayak Pty Ltd v Central Coast Council  NSWLEC 1269 (27 May 2022).
OM Vinayak Pty Ltd proposed a development on flood prone land within the Central Coast local government area. The application was for ‘development consent for demolition of existing structures, construction of a dual occupancy … and subdivision’ (). Council refused the application and the applicants appealed to the Land and Environment Court (‘the LEC’). In the LEC council maintained its position that the application should be refused. Council’s position was (at ):
1. The proposed development fails to minimise the flood risk to life and is not compatible with the flood hazard of the land.
2. The proposed development is not in the public interest for two reasons: firstly, it will establish a precedent for increased density within the Tuggerah Lakes Floodplain; secondly, the development will increase risk to life, damage to property and reliance on emergency services during a flood event.
Without tracing all the various environment plans and standards, it can be summarised that experts for the developer, and experts for the Council, took opposing views (at -) on whether the development was a reasonable response to the flood hazard on the site.
… Mr Dewar [for the Council] concludes that the proposed development is incompatible with the flood risk of the site, will increase the flood risk to life and should be refused on these grounds.
In the alternative, Mr Wyllie [for the Applicant] argues that the Flood Response Plan, and the ability for residents to shelter in place, is an appropriate response to the flood hazard of the site. Further, he says the evacuation route is safe for a minor flood (up to 0.8m in Tuggerah Lakes) and that when the SES issues the evacuation order it is safe for residents of the subject property to leave. However, he accepts that ‘evacuation during major flood events would be unadvisable and occupants shall remain in buildings (Shelter in Place).’
The Flood Response Plan (at ) proposed that residents:
+ Evacuate in response to minor excavation warnings issued by the State Emergency Services (SES) via Bondi Road and Wilfred Barrett Drive.
+ The Flood Response Plan notes that residents will have approximately 12 hours to evacuate after a minor flood warning.
+ That if a decision is made to shelter in place, residents have 12 hours to prepare and that adequate food, bottled water, medication etc will be required for a period of approximately 12 hours.
+ Confirms that the subject dwelling will remain flood free and safe to shelter in place in both the 1%AEP storm event and the Probable Maximum Flood (PMF).
+ That once Bondi Road is inundated residents should not attempt to leave, except when the SES or emergency services advise it is safe to do so.
Mr Simington, solicitor for the Council argued (-):
… that the Flood Response Plan is inadequate in that it:
+ does not provide occupants any indication of how long they will be isolated in the dwelling during a flood event if they choose to shelter in place.
+ Encourages residents to believe they will be able to rely on emergency services to rescue them if they have an emergency during the 1%AEP event.
+ Does not provide any guarantee that occupants will not attempt to evacuate after it is safe to do so out of anxiety or distress, recognising that at the peak of the flood the experts agree that part of the evacuation route (the section of Minni Road with a depth of 0.7m) is classified as H3 by the NSW Flood Plain Management Manual.
On the preceding basis, Mr Simington argues that the Court would prefer the evidence of Mr Dewar and his conclusion that firstly shelter in place is an inappropriate strategy for managing the flood risk at the site and that secondly the proposed development is not compatible with the flood affectation of the site as it proposed to increase the density of development. Mr Simington submits that in the Respondent’s assessment of the development application should be refused on these grounds.
The lawyer for the applicant argued that the development should be approved as it was not expressly prohibited by local planning documents, that the building would be built to withstand the pressures of flood waters and:
The Applicant has prepared a Flood Response Plan and proposes conditions to ensure that future occupants are aware of the existence of the plan and its contents.
Commissioner Dickson said (at  emphasis added):
… I am satisfied the proposed development is acceptable for the following reasons:
+ The Applicant has established, and the experts agree on, the flood hazard applicable to the subject site. I accept and prefer the evidence of Mr Wylie that the proposed development is compatible with the flood hazard on the basis that: firstly, the floor level of the dwelling is higher than the FPL; secondly, that the building is designed to withstand the characteristics of the flood (which is at low velocity) and finally; that the entire dwelling is a reliable area of refuge for residents. I note that in a 1%AEP flood event the depth of flooding expected is 0.3m which is classified by the Floodplain Manual as H1: Low Hazard. Further, in the annexed conditions the development will require certification from a structural engineer that the dwelling is structurally designed to withstand flood waters to the depth of the PMF and velocity of 05.m/s.
+ There is no contention, or evidence in the proceedings, that the proposed development will affect flood behaviour or result in increased flood expectation of adjoining properties.
+ The Flood Response Plan is responsive to the specific site and the flood characteristics of the subject site in the North Entrance Peninsula. If strictly complied with there is agreement in my view between the experts that there would be no risk to life from the proposed development as the finished floor level of the building is firstly above the flood level of the PMF and secondly the building is designed to withstand flood waters.
+ There is no planning provision contained in DCP 2013 which provides guidance to an Applicant that shelter in place is a planning approach not supported by the Council. The period of isolation is expected to be approximately 12 hours. In my view the risk to life from occupants leaving during that time is minimal. Occupants who are located within a dwelling that is dry from ground level, with their possession safe, and in a structurally sound building able to resist flood flow forces and low inundation are in my assessment unlikely to seek to leave. Further, as a result of the conditions of consent they will have awareness of the Flood Response Plan.
I am satisfied on the evidence that the development application incorporates appropriate measures to manage risk to life and property from flood. I accept there is a residual risk of occupants failing to comply with the Flood Response Plan. However, I am satisfied this risk is minimal, is mitigated by the following conditions of consent and is a risk that needs to be considered in the context of the long warning time (48 hours) of the specific flood events in this locality.
And at :
… I am satisfied that occupants will have between 24 – 48 hours warning time to ensure they either evacuate or have sufficient food and medication to withstand the period of isolation. I find the risk is satisfactorily mitigated by the Flood Response Plan, which provides sufficient detail of occupants of when flooding will occur…
The court upheld the appeal with the effect that the development was approved.
That is a clear example of one sector imposing a risk that others must manage. Absolutely the development depends on the SES both giving flood warnings and being able to assist with evacuations.
Further relying on a plan that encourages people to shelter in place, to ensure that they had adequate food and medication and to not change their mind and evacuate late would seem to depend too much on people who will not be trained and having to make decisions in extreme circumstances. I cannot cite research from the Bushfire and Natural Hazards CRC on what makes effective warnings and how people behave, but with respect to Commissioner Dickson her finding that the ‘risk of occupants failing to comply with the Flood Response Plan’ was minimal sounds unduly optimistic and not based on evidence.
The problem was that the various development plans did not prohibit the development. They tried to balance the housing needs of the community against risks. The plans aimed to ‘to allow development on land that is compatible with the land’s flood hazard’ provide they ‘enable the safe occupation and efficient evacuation of people in the event of a flood’. There was nothing in the development plans that said ‘that ‘shelter in place’ is unacceptable’ (). It is not surprising that a court of law focussed on the letter of the law and the planning instruments. The court’s job was not to favour risk mitigation, but to apply the balance set out in the planning documents. The National Strategy for Disaster Resilience or the arguments of Dovers, Crosweller, Glasson et al (Australian Journal of Emergency Management, April 2022) are not relevant to the court’s decision.
I make no comment on the Commissioner’s decision. It was her job to apply the law and the principles developed by the LEC and I do not suggest that she did anything but her job. But I do think the case is a great exemplar of Dovers’ point – ‘the job of emergency management and disaster policy is to prepare for, and then cope with, problems caused by vulnerabilities created by other policy sectors.’
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.