39TH ANNUAL FLOODPLAIN MANAGEMENT CONFERENCE, MAY 1999
MINIMISING LEGAL LIABILITY RISKS WHEN DISSEMINATING FLOOD DATAPat Romano, Liverpool City Council
Paul Grech, Don Fox Planning Pty Ltd
Drew Bewsher, Bewsher Consulting Pty Ltd
The comprehensive and orderly dissemination of flood data to the public should be an important consideration for local government for two reasons. Firstly because of a council's exposure to potential liability claims, and secondly because the dissemination of flood data is a valuable means of raising a community's flood awareness and has been demonstrated to significantly mitigate flood damages.
Many councils have developed policies for release of flood data which do not adequately reflect either of these two objectives. Further, many councils are unaware of the deficiencies in their existing practices relating to the dissemination of flood data.
The paper presents details of a model policy for the release for flood data that has been prepared for Liverpool City Council. The policy has also been adopted by the Western Sydney Regional Organisation of Councils (WESROC) and the Westpool insurance group. The policy seeks to minimise a council
's exposure to potential liability claims arising out of inappropriate release of flood information, whilst facilitating the provision of comprehensive and easily understood flood data, to the public and other council officers. 1. ACTING "IN GOOD FAITH"The State Government Flood Policy and the 1986 Floodplain Development Manual (FPDM) establish a basis for ensuring exemption from liability as provided for by Section 733 of the Local Government Act, 1993 (LG Act).
Section 733 of the LG Act provides that councils do not incur any liability in respect of advice furnished or anything done or omitted to be done in good faith by council which relates to the nature and extent of flooding provided that council acts in good faith. Unless the contrary is proved, council is taken to have acted in good faith if it has acted substantially in accordance with the FPDM.
Section 3.1 of the FPDM outlines the specific areas of responsibility of councils in regard to floodplain management, which include:
preparation of Local Environmental Plans (LEPs);
preparation and application of Floodplain Management Plans;
assessment and determination of development applications;
issuing of Section 149 Certificates;
flood mitigation; and
flood awareness.
The release of accurate, comprehensive and consistent flood data, between different council officers, to other government authorities, to the general public and to consultants and developers, is essential in exercising council
's duties as specified by the FPDM in a manner which limits liability.2. LEGAL ISSUES
In a recent court case involving Mid Density Development Pty Ltd -v- Rockdale MC (1993) 81 LGERA 104, the concept of acting in good faith when releasing flood data was examined in detail. The responsible officer, in completing Section 149 Certificates had relied on his own knowledge and had not searched Council
's records which would have revealed that the property was subject to the risk of flooding. The Court concluded that the lack of personal dishonesty was not determinative of action in good faith as provided for by Section 733 of the LG Act. The Court also held that in the circumstances, the disclaimer on the Certificate was not sufficient to absolve the Council of liability for its negligence. As a result Council was found liable for damages exceeding $1 million.Recent legal advice provided in association with the preparation of other Floodplain Management Plans revealed two important considerations:
before council can rely on a good faith defence, it must conscientiously apply itself in the exercise of its duties; and
council should disclose the possibility that a land may be subject to a flood in a PMF event upon a Section 149(2) Certificate, and presumably when providing flood data by any other means.
The comprehensive and orderly dissemination of accurate flood data, is important both because of its implications for council
's legal liability, and as an important flood awareness tool to mitigate the impacts of flood hazards, which could have a number of consequences including:Council or individuals within council being subject to damages claims through the legal system;
increased insurance costs;
poor public awareness and resultant increased flood damages and risk to life; and
inefficiencies in providing flood information and therefore increased costs to council and delays experienced by those seeking the information.
Accordingly, there are clear benefits in seeking to streamline and safeguard the flood data process which overall contributes to a council
's risk management responsibilities.3. PREPARATION OF A MODEL POLICY
The remainder of this paper discusses the development of a model policy for Liverpool to address the above issues. The policy is in a form which allows wider application to other councils and indeed, the WESROC and Westpool insurance groups have adopted Liverpool
's policy, and a number of other councils and authorities are currently examining the policy.3.1 Objectives
To ensure that those handling or receiving flood information understand the distinction between risks associated with flooding and controls imposed by Council to mitigate against the consequences of select flood events.
To minimise risk associated with Council
To train staff responsible for the release of flood data in regard to relevant procedures and processes.
To maximise the potential to increase flood awareness amongst the general community and Council personnel involved in the land management and development process.
To ensure that flood related information released is consistent.
To ensure that flood related information is released in an orderly and efficient manner.
To advise the public of restrictions that may be imposed by Council on development due to flood affectation.
To provide a flood related information service to all relevant sections of Council.
To provide a mechanism to increase public awareness of flood risks, to minimise consequences of flooding by increasing the preparedness of the community, and to increase the capacity of the community to recover subsequent to being flooded.
To ensure that Council meets its statutory obligations in regard to the dissemination of flood-related information.
3.2 Process for the Maintenance of Information and Responding to Information Requests
Figure 1 represents the process to be followed in regard to the receipt of information requests, the maintenance of the information system, and the release of information.
There are two levels of flood related information to be made available, being:
Standardised flood data - which refers to documented information prepared by Flood Investigation Engineers and may include a flood information brochure, flood reports, flood certificates, attachments to S.149 Certificates, flood policies and floodplain management plans, flood studies, and standard conditions of consent.
Non Standardised flood data - this refers to information requests which are not able to be satisfied by reference to documented data (standardised flood data) and will require a specialised response by the Flood Investigation Engineers.
Relevant staff are authorised to provide standardised flood data referred to in their specification of duties. The Flood Investigation Engineers only are authorised to provide non-standardised flood data.
Staff involved in the release of flood data are to be trained in regard to relevant procedures and processes on a regular basis, and in particular on commencement of their duties with Council and upon any significant change to relevant processes and procedures.
3.3 Ownership of Data
Flood Investigation Engineers.
3.4 Updating of Information
Overall control is the responsibility of the Flood Investigation Engineers.
Flood Investigation Engineers to update "Flood Assistant" (ie the flood data base) and to provide data to update Council's LIS and corporate data base.
The "Flood Assistant" data base is to be linked to Council's corporate data base.
All flood related data to be held on a common corporate data base with regular updating by the delegated persons.
Section 149 Clerk to update LIS (text only) with data provided.
Land Information Systems Manager responsible for updating the flood map layer on the LIS and producing current flood maps.
Draft Flood Studies, Floodplain Management Studies and Floodplain Management Plans be received by Council as soon as practical and within no longer than 6 months after completion of the Draft Study.
3.5 Access to and Use of Information
The General Manager to delegate through the powers vested in the Local Government Act, appropriate delegation to nominated persons and provide a written summary of duties and responsibilities.
To be in accordance with the flow diagram headed "Processing of Flood Data Requests".
All relevant personnel to have read-only access.
Access for maintenance purposes to be available to only those persons required to update information as noted above.
The overall responsibility for the compilation, management and release of flood data will be vested with the Flood Investigation Engineers. Flood Investigation Engineers will be responsible for setting up various mechanisms to allow release of standardised information without their involvement, which would include:
Flood Brochure;
Standard Question and Answer booklet for staff;
Flood Certificates;
Flood Reports;
Attachments for Section 149 Certificates;
Input into the LIS and Corporate data base;
Specifications for site/development specific flood studies and management, control and acceptance of the study;
Catchment wide flood studies, floodplain management studies and floodplain management plans prepared in accordance with the FPDM; and
Standard conditions of consent.
The availability of standardised information will increase efficiencies and consistency of data released and should be continually monitored and reviewed with the objective of minimising the involvement required of Flood Investigation Engineers in satisfying individual flood related information requests. However, where limited information outputs are not sufficient to handle the specific nature of a flood related question, then this question must be referred onto the Flood Investigation Engineers.
Those staff within Council involved in the dissemination of flood related information are to exercise their duties in regard to the extent of authority and responsibility specified within the written summary of duties and responsibilities.
Flood Investigation Engineers will be responsible for the provision of comments and advice in regard to all development proposals on flood prone land (i.e. up to the Probable Maximum Flood if defined). Notwithstanding, Flood Investigation Engineers may delegate authority to other personnel within Council to deal with certain classes of development proposals within the flood plain and may nominate standardised conditions of consent which would apply in such cases.
3.6 Means of Information Release
To be in accordance with the flow diagram headed "Processing of Flood Data Requests".
The following outlines the mechanisms available for the release of information and Council's policy in regard to the type of information to be released:
Information to be provided by way of standardised material only by authorised personnel:
Section 149 certificates;
Counter enquiries (refer to Question and Answer booklet and other standardised material only);
Telephone enquiries;
Standard conditions of consent where Flood Investigation Engineers have delegated their authority.
Non Standardised information to be provided by Flood Investigation Engineers only:
Interim flood policy/floodplain management plans; Written/fax/e-mail enquiries; Flood reports and flood certificates (normal format and extended format); Flood brochure; Other components of Council's Flood Awareness Programs; DA referrals and other internal advices; DA approvals and conditions; Telephone enquiries.
3.7 Monitoring and Review of Policy
The Policy should be monitored by the Floodplain Investigation Engineers.
The Policy should be reviewed on an annual basis.
The various forms of standardised information should be updated to include responses to frequently asked questions to minimise enquiries diverted to Flood Investigation Engineers and increase consistency of data released.
4. CASE STUDY
A hypothetical case study has been prepared to demonstrate the players involved in requesting and disseminating flood information and how the recommended responses may be provided. This example is drawn from the case study described in the corresponding paper presented at the 1999 Flood Conference entitled "Towards Better Floodplain Planning", prepared by the same authors.
4.1 Site Description
The subject site is relatively large (approx. 1 hectare) and is located adjacent to a main creek with a smaller tributary creek traversing the site. The site was previously used for agriculture and is relatively clear except for riparian vegetation within a 10 metre corridor along the creek. Illustrations 6
B9 in the towards Better Floodplain Planning paper provide a diagrammatic representation of the site and its characteristics. The site is located within an urban release area and has the potential for residential flat development. The owner is retiring from agricultural pursuits and wishes to sell the property to developers for residential flats. 4.2 Information Requests from the OwnerThe owner makes only the information requests legally required in order to place the property on the market. Accordingly, the owner's solicitor requests a Section 149 Certificate to attach to the Sale Contract. As required by the Environmental Planning Assessment Legislation, the Section 149 Certificate advised that Council had a Floodplain Management Policy/DCP which potentially affected the development potential of the land. The owner was neither interested nor required by legislation to obtain or investigate further the restrictions imposed by the Policy.
4.3 DeveloperThe developer interested in purchasing the land rings Council and enquires as to the relevant issues which may affect its development potential. Knowing that the site is located adjacent to a major creek the developer enquires as to whether the site is flood affected. The developer is advised that such information can not be provided over the telephone, but is advised that Section 149 Certificates and Flood Certificates can provide this information or the developer may visit Council and inspect the flood maps and relevant documents. The forwarding of a Flood Information Brochure to the applicant advising the processes and the various forms of information available is offered.
The developer obtains a Sale Contract with the attached Section 149 Certificate. The Section 149 Certificate advised that the subject land was "flood affected" (which could mean that the land was potentially inundated anywhere up to the PMF) and was partially zoned 7(a) Environmental Protection. One of the objectives of the 7(a) zone was to restrict development on land located within the high hazard floodway.
The Section 149 Certificate was also accompanied by a Flood Information Brochure prepared by Council which recommended the obtaining of a Flood Certificate to confirm ground levels that ascertain the level of flood affectation. The developer subsequently made application and obtained a Flood Certificate from Council confirming the level of flood affectation.
The developer also investigated all other issues relevant to the development of the property and eventually decides to purchase the property conditional upon development approval. A consultant team is then engaged by the developer to prepare the necessary development application, and includes an hydraulic engineer.
4.4 ConsultantsA multi-disciplinary consultant team was commissioned by the developer to deal with all issues relating to the proposed development, project managed by a town planning consultant. A pre-development application (DA) lodgement meeting is arranged with Council officers to discuss all issues including those relating to flooding. The pre-DA meeting was held, convened by Council's town planners, to discuss all issues. In regard to the issue of flooding, Council's planners were able to advise as follows:
No development would be permissible within that part of the site zoned 7(a) other than for open space purposes;
Compliance with Council's Floodplain Management Policy / DCP was required;
The applicant should obtain a Flood Certificate (which in this case had already been obtained);
A contact with Council's Flood Engineer was provided in order to obtain flood study data and access to the flood model to enable the preparation of a report investigating the flood affectation on others as a result of the development, as required by the DCP.