Legal Insights

Flood risks: Victorian council’s Building Act obligations & risks regarding building on allotments that are in areas liable to flooding

By Frances Hall & Vujan Krunic

• 09 May 2022 • 3 min read
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The recent devastating flood events in Queensland and New South Wales and significant storms in Victoria over summer are a sobering reminder of the increasing impact of climate change. The acceleration of environmental change creates risk for Victorian local government building teams in the context of their Building Act 1993 (Act) obligations relating to land liable to flooding.

The requirements under the Act interact with provisions under the Water Act and Planning and Environment Act, resulting in a complex legislative environment for Victorian local council.

What are council’s obligations?

Land may constitute ‘an area liable to flooding’ where it has been determined under the Water Act, specified in the planning scheme, described on a plan of subdivision or otherwise designated by council. Where land falls within that definition, obligations will arise for council, including for its building team.

Those obligations include:

  • issuing report and consent for building permits for building work on land in that area (if the planning scheme doesn’t specify the level of the lowest floor of the building). This involves consultation with relevant floodplain management authorities
  • where it chooses to do so, specifying a level for the lowest floor of a building when issuing report and consent
  • preparing or amending maps of the areas liable to flooding within the municipality
  • notifying the Victorian Building Authority and providing to them copies of the flood maps.

What are the risks for council arising from the Building Act requirements?

Where council is obliged to consider report and consent applications for land designated to be liable to flooding and where it elects to specify a minimum floor level, council will need to ensure that it exercises its power to issue report and consent correctly, with reference to all relevant information held by council in relation to flood risk, so that report and consent is not issued based on incorrect or out of date information. Council should have processes in place to ensure proper decision-making.

In addition, risk may arise where council has not updated its flood mapping for a long period or has obtained updated flood mapping but has not incorporated it into the planning scheme or otherwise designated that land as an area ‘liable to flooding’. Where councils have not exercised the powers open to it in relation to identifying land liable to flooding, they could be at risk of civil liability to property owners who have built dwellings or other buildings on land that subsequently becomes flooded, causing damage and loss to those owners. In the context of the increasing likelihood of flooding due to climate change, this risk is becoming increasingly significant.

What steps should council take to mitigate those risks?

Councils should ensure that their flood mapping is periodically reviewed and updated and that where updated modelling is obtained, that information is appropriately incorporated into the planning scheme or otherwise used to designate relevant areas as liable to flooding, to ensure that either planning permit or report and consent requirements are triggered.

In addition, council’s building team should ensure that its report and consent process for land liable to flooding and designation of a minimum floor level (where relevant) is informed by the most up to date information held by council and that the required processes for consultation with relevant floodplain management authorities are strictly followed.

Should council require further information regarding the specific obligations owed by council under the various relevant Acts or the processes it could adopt to minimise its risk, our Maddocks Construction & Projects team can provide expert advice on this issue.

By Frances Hall & Vujan Krunic

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