Submission to revised draft Victorian floodplain
management strategy, Aug 2015
August 2015
© Copyright Municipal Association of Victoria, 2015.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015 has been
prepared by the Municipal Association of Victoria (MAV) for discussion with member councils and
the State Government.
Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
Table of contents
1
Introduction ......................................................................................................................... 4
2
Background......................................................................................................................... 6
3
Response to MAV’s 2014 recommendations....................................................................... 7
4
Discussion and Recommendations ....................................................................................12
5
Conclusion .........................................................................................................................20
Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
1 Introduction
The Municipal Association of Victoria (MAV) welcomes the opportunity to make a further
submission to the Victorian Floodplain Management Strategy (VFMS) consultation.
The MAV made a comprehensive submission to the consultation draft released in July 2014. A
copy of that submission is attached.
To inform this submission, the MAV sought feedback from our members, attended roundtables
and information sessions organised by the Department of Environment, Land, Water and
Planning (DELWP) and reviewed council submissions from the 2014 consultation round.
This submission includes a summary of the MAV’s 2014 recommendations and an analysis of
whether they have been addressed in the revised draft. The MAV would like to acknowledge
the open door policy of the DELWP Flood Strategy team and the efforts made to address
several of the recommendations made by the MAV and councils through previous submissions.
However, the MAV and many of the councils that provided input into this submission remain
concerned that local government will be bearing much of the decision-making responsibility for
flood mitigation infrastructure, and with it the cost and risk burden, and associated liabilities.
Another theme that emerged was the imminent introduction of the council rates capping policy
and the effect it will have on councils’ ability to contribute to flood studies or even the relatively
minor cost of the flood warning component of flood gauges.
The cost of implementing the land use planning-related policies and the reliance on technical
advice from Catchment Management Authorities and Melbourne Water were also strong themes
in the council submissions.
In an unconstrained revenue environment, these costs may be manageable for many councils,
and the proposed policies could be workable as long as there were adequate protections
against legal action and additional support for low-resourced councils. However, given the
current rates capping policy, the MAV cannot support proposals that will result in an additional
cost burden for local government.
The MAV will only be able to support the proposals if the State bears the additional costs or if an
up-front exemption from rates capping is granted for costs associated with the VFMS. Councils
should not have to choose between an uncertain and burdensome exemption application
process and replacing ‘discretionary’ community services with new costs resulting from State
policy.
While many councils that provided input into the MAV submission remain concerned about the
aforementioned elements of the strategy, councils and the MAV recognise the difficult task of
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
addressing floodplain management arrangements and look forward to continuing to work with
the State Government to address our members’ concerns.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
2 Background
The Victorian Government first released the Draft Victorian Floodplain Management Strategy
(the VFMS) for consultation in July 2014.
The MAV and several councils made submissions in 2014. MAV’s 2014 recommendations are
included in Section 3 of this submission. The MAV’s full submission is attached at appendix 1.
The primary concerns of councils in 2014 were:
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the formal handover of decision-making around flood mitigation infrastructure (including
levees) to councils and the associated liability, capital, maintenance and management
costs;
the responsibility of councils to pay for the cost of maintenance for the flood warning
component of flood gauges;
lack of clarity around responsibilities for flash flooding and local flood warnings and the
suggestion that councils should develop local warning systems;
lack of detail about arrangements within the Melbourne Water (MW) boundary; and
the need to address barriers to planning scheme amendments.
The Government released a revised version of the Draft VFMS for consultation in June 2015.
Roundtables and consultation sessions with councils were held throughout July.
The major changes to the 2014 VFMS draft in the revised Draft VFMS include:
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A revised rural levee policy – the previous strategy stated that the State would not
contribute to the upgrade of rural levees. The current version states a third contribution
to upgrades will be considered if there is clear public benefit and a favourable cost
benefit analysis. Councils would have to take on management and maintenance
responsibilities if works are pursued;
The flood mitigation infrastructure section has been rewritten to clarify responsibilities;
More information has been provided on the arrangements within Melbourne Water
boundary;
Additional content on climate change;
A revised section on responsibilities for warnings; and
More content about the Catchment Management Authority (CMA) role in planning.
Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
3 Response to MAV’s 2014 recommendations
Outlined below are the recommendations made by the MAV in our 2014 submission and the
degree to which they have been addressed in the revised Draft VFMS. It is pleasing that many
of the recommendations have been addressed in the revised draft.
General recommendations

That a full analysis of the financial impact on local government be undertaken, in line
with the Victorian State Local Government Agreement.
No. There has been some analysis on the cost of gauges – included later in this submission
- however it is difficult to predict the cost per council.
There has been no further analysis of the cost of upgrading existing flood mitigation
infrastructure, however this too is a difficult (and costly) exercise. It will require audits of
existing structures, flood studies and community consultation.
Councils have also expressed concern about the cost of flood studies and planning scheme
amendments, particularly for lesser resourced councils in a rates capping environment.

That the strategy clarifies roles and responsibilities within the Melbourne Water
boundary and explains how they differ from other parts of the state.
Yes, there is more information about the arrangements in Melbourne Water throughout the
strategy.

That the strategy include a section on flash flooding.
Yes, Section 16.7 covers flash flooding warning services. The revised strategy clarifies that
regional floodplain management strategies will identify locations where there is a history of
flash flooding.
Part 1 - Assessing Flood Risks and Sharing Information

Proposed policy 7a should be reworded to clarify that the flood map requirements only
apply to maps which are to be added to the Victorian Flood Database and that agencies
carrying out self-generated flood mapping exercises will be encouraged, but not
required, to follow DEPI guidelines.
Yes, Policy 10a states this.

Councils seek clarification that they will not be responsible for funding additional
mapping requirements.
Partly. There will be new standards applied to government-funded maps. There may be an
increase in the council contribution to these maps, however in most cases the council will
benefit from the improved standards.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015

That the policy regarding sharing of LiDAR mapping be included in the strategy and/ or
communicated to councils directly.
Yes, the MAV understands that this has since been communicated to councils.

Flood studies should be a collaborative effort between CMAs/ MW and councils. They
should be project-managed by the CMA/ MW as they are the floodplain managers and
have the necessary expertise.
Partly. Section 12.2 includes a diagram that indicates local flood studies are managed at the
regional level. Section 12.3 states that ‘CMAs and LGAs generally conduct flood studies in
partnership. Their individual roles in any given flood study depend on their capacity and their
history of teamwork. Regional floodplain management strategies will provide clarity about
how the roles will generally be shared in each region. The costs are to be shared equally
between LGAs, the Victorian Government and, it is expected, the Australian Government’.
(subject to the Australian Government’s continued provision of suitable funds).
Part 2 - Avoiding or minimising future risks

A rolling flood planning assistance fund should be established to facilitate the expedited
preparation of flood studies and associated planning scheme amendments in priority
areas.
No, Proposed Action 13c says CMAs and MW will include implementation plans in regional
strategies that will seek to assist conversion of existing flood study data into planning
scheme amendments. DELWP will also work with councils to streamline processes involved
in converting flood study outputs into amendments.

That the MAV work with DEPI and DTPLI (now DELWP) to develop an alternative
strategy to address the barriers preventing the planning and building system from
reaching its full potential in adequately managing flood risk.
Yes, Proposed Action 13c says that DELWP will work with stakeholders such as the MAV to
understand the constraints of implementing planning scheme amendments. As identified in
our previous submission, the limited financial and technical capacity of councils is
preventing the planning and building system from reaching its full potential.

That the strategy clarifies that the State is responsible for regional growth plans.
Yes

That a working group be established to further develop the access and egress
proposals.
No, DELWP will prepare guidelines for inclusion in State Planning Policy Framework to
inform local planning decisions.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015

The strategy should include a clear policy for cost sharing capital works for mitigation
infrastructure on the coast.
Partly. The strategy states there is still a need to clarify the funding arrangements for flood
mitigation infrastructure on the coast and the strategy supports the Victorian Coastal
Strategy action to analyse options for improved funding arrangements for the management
of coastal Crown land. However, the strategy states that councils can develop adaptation
plans to strategically assess coastal hazards. Where adaptation plans indicate flood
mitigation infrastructure is required, councils will be expected to contribute to cost-sharing
arrangements with Victorian and Australian Governments.
Part 3 - Reducing existing risks

The strategy should define which components of the Total Flood Warning System
councils are expected to maintain. Once defined, further consultation with the sector
may be necessary to determine whether councils are the appropriate agency and
whether they have capacity.
Yes, the strategy has clarified responsibilities in this section. This current consultation round
is an opportunity for councils to provide feedback.

Local government should not be responsible for funding the maintenance of gauges.
No, the Strategy proposes that councils cover the maintenance costs only of the flood
warning components of gauging. In a number of cases this will be through Regional Water
Monitoring Partnerships.

The strategy should clarify that it is not a local government responsibility to issue local
flood warnings or manage local flood warning systems. Any data collected through local
systems should be provided to the Bureau of Meteorology and VicSES to be used in
their warnings.
Yes, largely. It is pleasing that the previous example of a council-run local warning system
has been removed.
While the current draft does not specifically state that VICSES - as the control agency for
flood - is responsible for issuing warnings, Section 16.5 says that ‘BoM and Melbourne
Water maintain appropriate flood warning messages and associated dissemination channels
for locations noted in the BoM Service Level Specification. VICSES maintains its
dissemination channels for flood bulletins.’ It goes on to say that councils use locally specific
dissemination systems to support VICSES services.
Regarding flash flooding, Action 16b states that DELWP will work with the Emergency
Management Commissioner to evaluate the potential to disseminate generalised districtscale flash flood warning services based around BoM’s existing severe weather warning
services, using similar dissemination approaches employed for bushfire; and DELWP will
work with BoM, the Emergency Management Commissioner and VICSES to evaluate the
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
potential to provide localised neighbourhood-scale flash flood warning services where there
is a history of flash flooding.

That the strategy provides unambiguous policies for each class of levee and flood
mitigation infrastructure.
Yes, largely. A new section 17.1 provides an overview of the proposed future arrangements
for each levee class. Feedback from one council is that the previous version more clearly
expressed that letting levees ‘weather away’ is a legitimate option for councils.

The arrangements for managing flood mitigation infrastructure within the Melbourne
Water boundary should be outlined in the strategy.
Yes. The strategy states that in the greater Melbourne region, Melbourne Water is
responsible for flood mitigation in drainage catchments greater than 60 hectares, and LGAs
manage flood mitigation in drainage catchments of less than 60 hectares. Melbourne Water
identifies flood extents, controls development in floodplains, provides advice on flooding to
LGAs and provides flood warnings to the community. It also develops flood mitigation plans
and where necessary builds, manages and maintains flood mitigation infrastructure in the
Port Phillip and Westernport region (pg 51).
Proposed Accountability 17a states within Melbourne Water’s region, the accountabilities for
flood mitigation infrastructure will remain with their current management agencies:
o LGAs are accountable for mitigating flood risks within drainage catchments of less
than 60 hectares. Melbourne Water is accountable for mitigating flood risks within
drainage catchments greater than 60 hectares.
o In some rural catchments, LGAs are accountable for mitigating flood risks within
drainage catchments of less than 200 hectares and Melbourne Water is accountable
for mitigating flood risks within drainage catchments greater than 200 hectares.
This proposal is discussed further in Section 4 of this submission.

That the State extends its commitment to cost sharing arrangements for major capital
works on rural levees that clearly provide public benefit.
Yes. While not stated as a proposed policy, this is stated in the body of the strategy (pg 52)
and section 17.4.

If the proposed levee management arrangements differ from the MAV’s summary,
further consultation with councils is required.
Yes. This consultation round provides that opportunity.

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The State should undertake a thorough analysis of the cost of bringing urban levees up
to standard, and the ongoing cost of the levee policy to councils prior to councils being
made responsible for unmanaged urban levees.
Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
No, the proposal is for this to be done through flood studies. The cost would be equally
shared between local, state, Australian governments. State and Commonwealth
contributions are expected to be sourced through a competitive and limited grants scheme.

If a flood study demonstrates significant upgrades or reconstruction are necessary to
protect an urban environment, the required funding should be provided to the council as
a matter of priority.
Partly, priorities will be set through regional floodplain management strategies. As above,
State and Commonwealth funding is expected to be sourced through a competitive and
limited grants scheme.
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At a minimum, a hardship clause should be considered for financially stressed councils
that cannot afford the one third contribution to the study and upgrade.
No
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Where the structure was originally built by the State, a further State contribution towards
upgrades or reconstruction is necessary.
No

To support councils and limit their exposure, the MAV requests that the State address in
the VFMS or legislation:
o
processes for determining community support for retaining, demolishing, upgrading
or building new levees;
Partly. Proposed accountability 17b says that DELWP is accountable for providing
assistance to councils to help them develop and implement Water Management
Schemes. Proposed action 17b commits to consulting with relevant councils and
developing a process.
o
accountability for urban levees that do not become formal levees because councils
cannot afford to upgrade and maintain them or have not gained community support;
No. The revised strategy does not provide any accountability following community
consultation and decision-making where existing flood mitigation infrastructure is not
implemented as a WMS. It is not considered councils will be liable in this situation
where they have not taken a positive action to assume responsibility. However, it is
considered that this should be reflected in the strategy as a positive statement that
where councils do not assume responsibility for those levees they will not be liable.
o
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clear definitions and policies for each levee type and other flood mitigation
infrastructure
Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
Yes, the introduction to section 17.1 outlines arrangements for each type of levee.
Further information for each is contained within the chapter.
o
processes for making decisions about rural levees
Yes, in sections 17.1 and 17.4 although not as a proposed policy.

Councils should be given a ‘grace-period’ in which they are not responsible for levees.
During this time further work on design, standards and cost can be undertaken.
No. A grace period has not been provided in the revised strategy. MAV maintains that a
grace period should be provided as it is considered that if councils become responsible
for levees under Water Management Schemes they will owe a duty of care in relation to
those levees.
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Councils be granted limited immunity where they have acted reasonably or in good faith.
No. See recommendations below.

That the wording for proposed Accountability 13b be reviewed in consultation with MAV.
Yes.
Part 4 - Managing residual risks

Reiterate in Chapters 19 and 20 that Victoria’s emergency management arrangements
are currently being reformed and that there are likely to be changes to current
emergency management responsibilities.
No.

Amend the statement on page 60 to make it clear that VicSES leads the development of
Municipal Flood Emergency Plans.
Yes, Proposed Accountability 22a states ‘VICSES is accountable for leading infrastructure
managers and technical experts in contributing to the development of Flood Emergency
Planning. This includes the development of a State Flood Emergency Plan, Regional Flood
Emergency Plans and Municipal Flood Emergency Plans.’
4 Discussion and Recommendations
Parts 1& 2: Assessing flood risks and sharing information and avoiding or minimising
future risks
1.1 Flood data and mapping
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
The MAV is pleased that the process for flood data and mapping and subsequent updating of
planning scheme flood maps has been clarified in the revised strategy. We are also pleased that
implementation plans in regional strategies will highlight the need to convert flood studies into
planning scheme amendments, that DELWP will streamline processes associated with planning
scheme amendments and that a further understanding will be sought in relation to the
constraints to implementing flood studies into the planning and building systems.
However, it remains necessary for the strategy to:
1. Provide a means for more timely updates to flood mapping
As the Victorian Flood Database provides the most up-to-date information about recent floods,
councils wonder whether there is a way in which this data could be accessed and used by
councils to update planning scheme flood overlays. This could potentially provide for more
responsive overlays, particularly if it meant the removal of overlays from properties.
2. Give priority to addressing known gaps in flood overlays
The draft strategy identifies approximately 53 per cent of flood prone landmass in Victoria is not
within an appropriate planning scheme overlay. The gaps between flood mapping and areas
covered by flood overlays can be easily identified and need to be addressed. These gaps
should be identified as a first priority in the regional flood strategies.
3. Map existing levees
Currently there is no consolidated map of all existing levees in Victoria. Councils and
emergency management personnel would find it useful to have urban, rural (including Crown
land) and private levees mapped for each municipality or catchment.
4. Commit funding to flood studies
Irrespective of whether the revenue constraint matter is resolved through an up-front exemption,
we strongly reiterate the suggestion made in our last submission to create a rolling flood
planning assistance fund that facilitates the preparation of flood studies and associated planning
scheme amendments in priority areas. Councils with a high number of priority areas and low
resource capacity will otherwise not be able to fund their expected proportion of expensive flood
studies.
Recommendation:
That the draft Victorian Floodplain Management Strategy be amended to:
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Provide for a process for more timely updates to flood mapping
Give priority to addressing known gaps in flood overlays
Map existing levees
Commit funding to flood studies through a rolling flood planning assistance fund.
4.2 Advice and support
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
Councils have indicated to us that loss of the ‘right of veto’ for Catchment Management
Authorities in planning permit applications has been a loss of an important input into planning
decisions in flood overlay areas.
Information from CMAs about the frequency, duration, extent, depth and velocity of flooding of
the site and accessway, and the danger to the occupants of the development, other floodplain
residents and emergency personnel if the site is flooded is vital to councils making informed
decisions about applications in flood overlay areas.
It is critical that CMAs are reinstated to a ‘determining referral authority’. This designation gives
councils expert input, an obligation to refuse an application that a CMA objects to and a higher
level of support in the event a matter goes to the Victorian Civil and Administrative Tribunal.
We understand the workload for a ‘determining referral authority’ can be significant is not
manageable with the current level of resourcing. The MAV has been working with the Country
Fire Authority on a series of Standard Referral Agreements to reduce the number of referrals if a
number of standard conditions are met. We believe that Standard Referral Agreements would
work well with CMAs and the MAV would be happy to assist in developing agreements in a
similar way.
Recommendations:
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That CMAs be reinstated as ‘determining referral authorities’ land in Clause 66.03 of the
Victoria Planning Provisions and all planning schemes.
That DELWP and the CMAs work with the MAV and councils to develop Standard
Referral Agreements.
Flood studies should be a collaborative effort between CMAs/ MW and councils. They
should be project-managed by the CMA/ MW as they are the floodplain managers and
have the necessary expertise.
4.3 Addressing climate change
We understand the strategy proposes to address a changing climate through a number of
different methods including incorporating changing rainfall patterns, estimating different
magnitude floods and selecting climate change boundaries. This is to be assisted by the
Australian Rainfall and Runoff – A Guide to Flood Estimation (revised mid 2015). However, the
method by which this information should be included in planning schemes, or integrated into
AEP calculations, remains unclear. Clarity is required to enable the development of regional
floodplain management strategies.
Over the last decade, substantial funding has been directed to the modelling of coastal
inundation as a result of climate change and policy parameters have been put in place through
the Victorian Coastal Strategy 2014 to assist decision makers. The same commitment is
required for managing climate change impacts across floodplains.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
Understanding climate change risks and scenarios is an ongoing and significant challenge for
councils when administering their land use planning obligations, planning for and protecting
council assets (such as drainage and roads) and facilitating future mitigation infrastructure.
Complex modelling is required and there are policy settings that the MAV believes need to be
put in place to ensure that such modelling is meaningful.
The MAV recommends that policy guidance (and established planning thresholds) be put in
place to assist decision makers to assess climate change risks and undertake priority planning
for floodplains.
Recommendations:

Clarify how climate change parameters will be incorporated into regional floodplain
management strategies and flood overlays.

The policy guidance and planning thresholds about climate change be included in the
Victorian Floodplain Management Strategy (and State Planning Policy) in a similar
manner to the Victorian Coastal Strategy.
4.4 Urban stormwater management
Urban stormwater flooding in a major issue for metropolitan Melbourne and urban areas across
Victoria. Proposed Policy 14a suggest that integrated water management options must be used
in developing and evaluating measures to manage the flood risks.
Our current performance based planning scheme is able to accommodate variation and
innovation. We recommend that proposed policy 14a be amended to recognise the flexibility in
the current system. The following is suggested:
Integrated water management options will be investigated in developing and evaluating
measures to manage the flood risks associated with stormwater in Melbourne and regional
cities.
Part 3: Reducing existing risks
4.5 Flood warnings
There are close to 15 councils that are members of Regional Water Monitoring Partnerships –
mainly in the Hume and Gippsland regions. Through this partnership, the MAV is advised that
councils already cover the cost of the flood warning maintenance component. Councils that are
members of partnerships report satisfaction with the arrangement. Through these partnerships,
the annual maintenance costs range from approximately $1500 - $3000 per site depending on
the number of partners.
Outside of these partnerships, there are currently about 40 flood warning sites where the flood
warning component of gauging is currently funded by water corporations and CMAs. DELWP
estimates that under the new policy, the annual cost of maintenance would be in the order of
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
$100k spread across 14 councils that are currently not members of Regional Water Monitoring
Partnerships – mainly in south west and north west Victoria.
DELWP estimates that a further 15-20 gauges will be required over the next three-four years –
resulting in approximately $50K in maintenance. These sites will be identified through local
flood studies and regional floodplain management strategies.
Feedback on the current version of the strategy indicates many councils remain concerned this
cost, and about the justification for charging the cost to councils. Specifically, the statement ‘the
costs of maintaining those gauges will be shared to the extent that they reflect benefits to LGAs
for flood warning, to CMAs for water quality monitoring and water corporations for water
resource assessments’ (pg. 46) has been questioned because it implies councils have a role in
flood warning.
Recommendations

Many councils maintain that local government should not be responsible for funding the
maintenance of the warning component gauges. As stated in the introduction to this
submission, in an unconstrained revenue environment, this cost may be manageable to
many or most councils. However, in the current policy environment, the MAV cannot
support the proposal.
If this policy proposal is pursued, following resolution of revenue constraints, DELWP
should monitor the cost of this service to individual councils. If current funding partners
withdraw their service, or the cost for some councils is unmanageable, DELWP should
consider a subsidy to ensure the gauges remain functional.
4.6 Flood mitigation infrastructure
The revised strategy proposes at Accountability 17a that councils (outside Melbourne Water’s
region) will be accountable for:

leading the processes to determine and implement, through flood studies and Water
Management Schemes, the flood mitigation infrastructure necessary to meet the needs
of their communities, taking into account economic, social, cultural and environmental
issues

the ongoing maintenance and management of infrastructure that is determined
necessary to reduce flood risks for their communities.
Further, Proposed Accountability 17b provides:
DELWP is accountable for providing assistance to LGAs and other authorities to help them
develop and implement Water Management Schemes.
Cost implications
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
As stated in the introduction to this submission, the MAV is concerned about the cost
implications of this policy for councils. Without a commitment to an upfront exemption for the
associated costs from the rates capping policy the MAV cannot support its introduction.
Secondly, irrespective of whether this exemption is granted, there is no ongoing commitment
from the Commonwealth to the Natural Disaster Resilience Grants Scheme, the scheme from
which the Commonwealth’s one-third contribution is expected to come from. Further, even if this
scheme continues, it is a limited pool of funds, and it will be many years before all existing urban
(and potentially some rural) levees, as well as flood studies and proposed flood mitigation
infrastructure can be funded.
Accountabilities and associated liability
These proposed accountabilities represent a shift of responsibility from Authorities to local
government, which is not representative of legislative provisions. The Water Act 1989 reflects
that these are the responsibilities of Authorities, rather than local government. It is not a function
of councils under the Water Act or Local Government Act to develop or implement Water
Management Schemes.
This responsibility of Authorities for water management is clearly contemplated under Part 10 Water Management of the Water Act.
Section 189 of the Water Act outlines the function of Authorities in relation to designated
waterways, designated land or works as being to:
(a) to identify and plan for State and local community needs relating to the use and to
the economic, social and environmental values of land and waterways;
(b) to develop and to implement effectively schemes for the use, protection and
enhancement of land and waterways;
Section 202(1) (e) of the Water Act addresses the function of Authorities in relation to floodplain
management as including:
“to develop and implement plans and to take any action necessary to minimise flooding
and flood damage”
However, section 212 of the Water Act requires that where there is an investigation into water
management that ‘any council whose municipal district is wholly or partly within the affected
area must be represented on the committee’ formed under that section. This provision clearly
reflects that where a municipal district is affected, the council should be involved in the process.
Section 216 of the Water Act provides that the Minister may by order published in the
Government Gazette declare a scheme to be an approved scheme and ‘(b) nominate the
Authorities, or with its or their agreement the council or councils responsible for implementing
the scheme’.
These provisions clearly contemplate Authorities to be primarily responsible for developing and
implementing Water Management Schemes, with councils being involved in the investigation
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
process. Councils will also be responsible for implementing a scheme where they agree to do
so.
It is considered that the revised strategy proposals do not align with the current legislation.
Authorities should remain responsible for leading the decision making process for determining
water management schemes and flood mitigation infrastructure that is necessary. However,
councils should also form part of the investigation and decision making process where their
municipal district is within the affected area. The proposed shift of responsibility to councils will
result in an increased risk of liability for councils. Additionally, where councils agree to
implement a Water Management Scheme they may be seen to have duty of care in
implementing that scheme or potentially in relation to their omissions as the party responsible
for implementing the scheme.
In light of shift of responsibility and increased liability, where councils agree under section 216 of
the Water Act to implement a Water Management Scheme some protection should be provided
to councils. Firstly, councils should be involved in the investigation and decision making
process. Secondly, the MAV recommends that legislative provisions be made for an immunity
for councils when they are acting reasonably and in good faith in the implementation of a Water
Management Scheme.
If the State is not inclined to consider an immunity under the Water Act for councils when they
implement a Water Management Scheme, a policy defence should be provided under the Act.
It is suggested that the proposed policy defence be similar to that provided in section 103 of the
Road Management Act for councils when they comply with their Road Management Plans.
However, it would need to be altered to take into account that the councils do not approve
Water Management Schemes as they do Road Management Plans. Rather, Water
Management Schemes are created by a Committee, which may include the council, and are
ultimately approved by the Minister. Therefore, the policy defence should only require the
council act reasonably and in good faith in implementing the Scheme, rather than that the
requirements under the Scheme be reasonable.
The Proposed Policy 17a also provides that:
“Flood mitigation infrastructure outside Melbourne Water’s region that is not currently
subject to formal management arrangements will remain that way unless the relevant
LGA determines that the infrastructure should be brought into formal management
arrangements”.
It is considered that this represents a shift of responsibility from Authorities to councils to
determine whether previously unmanaged large-scale flood mitigation infrastructure be allowed
to weather away or be brought into a Water Management Scheme or other arrangement. This
is not reflective of the intent of the Water Act that this be the primary responsibility of Authorities.
Any shift of responsibility may be seen to place a positive obligation on councils to make these
assessments which may not be appropriate due to budgetary constraints or political pressure.
Councils may also attract increased liability by taking the positive action of making this
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
assessment and either considering the infrastructure be allowed to weather away or by
including it in a Water Management Scheme for which it would be responsible.
If the decision as to existing unmanaged flood mitigation infrastructure is to be placed on
councils it is considered that the cost implications to bring that infrastructure up to standard
must be assessed beforehand. Additionally, allowing a levee to weather away should be
recognised as a legitimate option for councils without them attracting liability for making this
decision.
Recommendations:

Many councils remain adamant that responsibility for large-scale flood mitigation
infrastructure, such as levees, should remain the primary responsibility of Authorities. As
already stated, the MAV would require a commitment from the State to fund the upgrade
and maintenance costs of existing large-scale flood mitigation infrastructure or a
commitment to an upfront rates capping exemption for the associated costs to be able to
support the policy.

In an unconstrained revenue environment, our position would be:
If the State resolves to pursue the proposed policy:
o
in the case of existing infrastructure, a hardship clause should be considered for
financially stressed councils that cannot afford the one third contribution to the
study and upgrade.
o
where the structure was originally built by the State, a further State contribution
towards upgrades or reconstruction is necessary.
o
the Water Act should be amended to include an immunity for councils when they
administer Water Management Schemes. If an immunity is not provided under
the Water Act, a policy defence should be provided under the Act for councils
when they administer Water Management Schemes.
o
The strategy should state that for a number of legitimate reasons councils can
decide not to maintain or upgrade existing levees.
4.7 Flood mitigation infrastructure inside the Melbourne Water boundary
Proposed Accountability 17a states:
Within Melbourne Water’s region, the accountabilities for flood mitigation infrastructure will
remain with their current management agencies:

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LGAs are accountable for mitigating flood risks within drainage catchments of less
than 60 hectares. Melbourne Water is accountable for mitigating flood risks within
drainage catchments greater than 60 hectares.
Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015

In some rural catchments, LGAs are accountable for mitigating flood risks within
drainage catchments of less than 200 hectares and Melbourne Water is accountable
for mitigating flood risks within drainage catchments greater than 200 hectares.
The MAV does not believe that this accountability is accurate. Whilst there is a general
understanding between councils and Melbourne Water regarding the responsibility for drainage
infrastructure within certain catchment sizes councils are not responsible for mitigating all flood
risks in such a catchment.
Additionally Melbourne Water is responsible for flood management in accordance with Section
202 of the Water Act 1989, irrespective of the catchment size.
In the response to the Draft Melbourne Flood Management Strategy, the MAV submitted that
the draft strategy must clarify that historically there was no explicit requirement for councils to
undertake this role prior to the VFMS.
Recommendations:
 It must be recognised that this is a new responsibility that commits local government to
funding and resourcing a service that is additional to the services that councils currently
provide.

In the current policy environment, Melbourne Water and DELWP will need to commit
additional resources to councils to assist them with this new task and ensure
consistency in specifications and methodologies.
4.8 Flood mitigation activities on waterways
MAV makes the same comments and recommendations as those relating to flood mitigation
infrastructure above, noting that section 189 of the Water Act specifies a function of Authorities
is to “to develop and to implement effectively schemes for the use, protection and enhancement
of land and waterways”. This is not a function or responsibility of councils and it is considered it
should remain the responsibility of authorities.
The current policy proposal provides councils with a choice to undertake flood mitigation works
on waterways, and cautions that works are never a one-time activity.
However, if there is to be any shift of this responsibility to councils an immunity or policy
defence should be provided in the Water Act to reflect this shift.
5 Conclusion
The MAV and councils appreciate the additional opportunity to provide feedback on the draft
strategy.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
The MAV is pleased that a number of the issues raised in response to the previous draft have
been addressed in this version of the strategy. It is the view of the MAV that this version of the
strategy has removed much of the ambiguity that councils were concerned about with the
previous version.
However, while the MAV’s key concern around affordability in a rates capping environment
remains, we are not in a position to support the elements of the strategy which will result in
additional costs to councils. We would also require greater legal protection for councils in order
to support policy proposals relating to flood mitigation infrastructure.
The MAV looks forward to continuing to work with DELWP and the State Government to
address the issues raised in this submission and individual council submissions over the coming
months.
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015
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Submission to revised draft Victorian floodplain management strategy, Aug 2015: August 2015