Emergency Management for Local Government
Legal Issues – Scenario
You are the Counsel for the Council, Jenny or Harry.
Harry has moved into the area and wants to buy land to build a new home. He approaches
the Council planning officer and asks whether the land he is intending to buy will be safe
from flooding. The officer replies “I don’t think there have been floods that high”.
As a result of that advice, Harry purchases the land.
In fact the property was flooded twice before, once in 1883 and again in 1964. Both were
considered 1:250 year flood events.
Six months later council’s engineers, taking into account predictions associated with climate
change and enhanced mapping, release a new flood map that shows Harry’s house is now in
the 1:100 flood contour and is therefore designated as flood prone. As a result Harry’s
application to build a mansion on the land is rejected and he is told he will have to spend
significant sums making the land flood proof.
Harry goes to an architect and designs a home that is meant to survive floods and has flood
protection measures that are less robust, but much cheaper, than those proposed by Council.
Council refuses to approve the development application so Harry takes the matter to the Land
and Environment Court arguing that the flood mitigation proposals included in the
development should be sufficient. Council’s experts meet with Harry’s experts and a
mediator and eventually a compromise is reached and the development allowed.
Harry now seeks to sell the land with the associated approval. He seeks an advice from an
estate agent who tells him that the property should sell for $500 000 but now that it is
considered flood prone he’d be lucky to get $350 000. Notwithstanding this it’s listed on the
market at $500 000.
Jenny is unaware of the flood prone nature of the land. She too approaches the council
planning officer whether the land he is intending to buy will be safe from flooding. The
officer replies “I don’t think there have been floods that high”.
As a result of that advice, Jenny purchases the land for the asking price of $500 000. In the
course of the conveyance she seeks a certificate from council. The council employee in
completing the certificate looks at the property file and sees that there is no reference on the
file to the land being flood prone and previous certificates, including the one issued to Harry,
have indicated that it is not flood prone. A certificate is issued indicating that the land is not
flood prone but that "The above information has been taken from the Council's records but
Council cannot accept any responsibility for any omission or inaccuracy."
After the conveyance she discovers that the land is considered flood prone and she should
have paid at least $150 000 less than she did.
Jenny is sitting in her caravan, her temporary home, when it starts to rain, and rain, and rain.
The floodwaters rise and eventually the caravan, and Jenny float away to be rescued
somewhere downstream. Jenny complains that there was no action to rescue her, or her
neighbours, when the water started to rise. The Council admit that at that stage they did not
have an effective emergency plan in place as they were still in the process of identifying the
impact of the revised flood information. Accordingly all the existing plans considered a
different flood outcome and because the block where Jenny was living was not, in those
earlier maps, identified as flood prone, there were no plans for evacuation of that area and noone in the incident control centre identified that there was a risk there.
1. What is Jenny’s legal position?
2. What is Harry’s legal position? What would his position have been if Jenny had paid
$350 000 because of the revised mapping/zoning?
3. What is the council’s legal position?