Allens

Environment & Planning

Focus: The Queensland floodplain: fertile ground for land use planning reform

29 November 2011

In brief: In response to the Queensland floods last summer, scrutiny has fallen on the existing regulatory regime for development in floodplains and its shortcomings. Before the Queensland Floods Commission of Inquiry delivers its findings in the new year, an interim planning response has been implemented. Partner Bill McCredie (view CV) and Lawyer Michael Zissis describe the implications of the interim policy and predict further reform of land use planning controls in Queensland's floodplains.

How does it affect you?

  • Assessable development on land subject to an Interim Floodplain Assessment Overlay Map may be required to meet new performance outcomes to improve the resilience of buildings against flooding.
  • Temporary State Planning Policy 2/11 – Planning for stronger, more resilient floodplains (TSPP2/11), including its associated mapping and model code, will only be applicable to the assessment of proposed development where a local government makes relevant amendments to its planning scheme.
  • Not all local governments will amend their planning schemes; those that do can either adopt the mapping and model code prepared by the Queensland Reconstruction Authority or refine the mapping and code to suit their locality. Accordingly, the practical effect of TSPP2/11 on proposed development will differ between local government areas.
  • TSPP2/11, in addition to the work of the Queensland Reconstruction Authority and temporary local planning instruments prepared by the Brisbane and Ipswich city councils, are the first examples of expected reform to Queensland's land use planning regulation for floodplains in the near future.

Background

In the aftermath of the flooding disaster that devastated Queensland in December 2010 and January 2011, the State Government established the Queensland Floods Commission of Inquiry (COI) to inquire into 'all aspects of land use planning through local and regional planning systems to minimise infrastructure and property impacts from floods'1 and report on that inquiry in February 2012.

During the final phase of its public hearings, which ended earlier this month, the COI considered the effectiveness of State Planning Policy 1/03 – Mitigating the Adverse Impacts of Flood, Bushfire and Landslide (SPP1/03), which currently 'sets out the State's interest in ensuring that the natural hazards of flood, bushfire, and landslide are adequately considered when making decisions about development'2.

Whether SPP1/03 is considered during the assessment of development applications is contingent on a local government having identified a 'natural hazard management area (flood)' (Flood NHMA) bound by a 'defined flood event' as an overlay map in its local planning scheme.3 This mapping exercise is generally the result of a 'time consuming and expensive' process involving a flood study, a floodplain risk management study and a floodplain management plan.4

In its last week of hearings, the COI heard that less than 20 per cent of local planning schemes in Queensland incorporated a Flood NHMA as an overlay under SPP1/03.5 The complexity of, and resources required for, the comprehensive mapping process were identified as the barriers to implementation, in contrast to the less burdensome process in SPP1/03 to identify natural hazard management areas for bushfire that approximately 75 per cent of planning schemes have incorporated.6

To address this impediment associated with SPP1/03, the Queensland Reconstruction Authority is undertaking (and will shortly complete) a state-wide floodplain mapping exercise based on multiple data inputs, including contour lines, vegetation type and aerial photography taken at or near historical flood peaks, including January 2011.7

The result of this work is the Interim Floodplain Assessment Overlay (IFAO), which local governments can adopt as the Flood NHMA in their local planning schemes under TSPP2/11.

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The effect of TSPP 2/11

TSPP 2/11 effectively expands the existing definition of Flood NHMA in SPP1/03 to include the IFAO8 and will influence the development assessment process where a local government either:

  • amends its existing local planning scheme to adopt the IFAO as its Flood NHMA; or
  • adopts the IFAO as the Flood NHMA in any new planning scheme.9 Accordingly, notwithstanding the fact that TSPP2/11 has recently come into effect, it will not have any practical effect until a local government resolves to adopt the IFAO into its planning scheme.

Notably, when adopting the IFAO, a local government is able to refine the Queensland Reconstruction Authority's mapping based on its local knowledge. Further, a local government will also resolve how the IFAO Model Code (provided in Schedule 1 of the draft Guideline to TSPP2/11) will be applied to the assessment of different types of proposed development within its Flood NHMA.

The Model Code does not, in itself, alter the level of assessment for development but will, rather, act as an applicable code for already assessable development in the area.10 The draft Model Code comprises five 'performance outcomes' that are coupled with suggested 'acceptable solutions' to be considered during the assessment of development applications, together with other relevant codes of the planning scheme.

The Draft Guideline to TSPP2/11 explains the 'purpose of the code is to manage built form outcomes in the floodplain so that risks to life and property during future flood events are minimised, and to ensure that future development does not increase the potential for flood damage on site or any other property'11. By way of example, a suggested acceptable solution to Performance Outcome 2 (Development is resilient to flood events by ensuring design and construction account for the potential risks of flooding) for certain residential developments is:

'Residential dwellings are not constructed as single-storey slab on ground'.

Public consultation on the Draft Guideline to TSPP2/11 closed on 11 November 2011. Therefore, the Model Code may be amended when a final guideline is released following consideration of submissions.

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Temporary nature of TSPP 2/11 and further reform

TSPP 2/11 will operate for 12 months only.12 Accordingly, TSPP 2/11 will provide local governments (that have not done so already13) with the opportunity to implement an interim response before:

  • the COI makes its recommendations about the current regulatory regime; and
  • the Queensland Government completes its on-going review of SPP1/03 (which will be influenced by any recommendations of the COI).

Notably, the Draft Guideline to TSPP2/11 foreshadows an amendment to SPP1/03 before the expiry of TSPP2/11, which indicates further reform regarding proposed development in the floodplain will occur before 14 November 2012.14

In this context, it is not unreasonable to predict that the regulatory regime influencing development in the floodplain will be subject to significant reform in the near future.

Further reform is likely to seek to minimise the major implementation barrier to SPP1/03, by sharing the burden of flood mapping costs between different levels of government. If policy guidance is taken from Europe, reform may also include:

  • promoting a strong presumption against development in the floodplain, with less generous exceptions than those currently contained in SPP1/0315;
  • additional requirements for the built form that seek to promote natural overland flow regimes and sustainable urban drainage solutions and giving more 'room to the river'16;
  • encouraging the inclusion of surface water management plans in development applications17; and
  • adopting a methodology to consider climate change predictions when determining the flood risk of a particular area18.

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Conclusion

Where a local government amends its planning scheme to include an IFAO map under TSPP2/11, assessable development on land within the mapped area will likely be required to meet new performance outcomes to improve the resilience of built form.

Whether TSPP2/11 has any practical effect on new proposed development in the floodplain is dependent upon:

  • whether the relevant local government amends its planning scheme; and
  • if a local government does amend its planning scheme, the extent to which the local government adopts the Queensland Reconstruction Authority's mapping and draft model code.

The regulation of development in Queensland floodplains is likely to develop further after the COI makes its recommendations in February 2012 and the review of SPP1/03 is completed.

Footnotes
  1. Commissions of Inquiry Order (No. 1) 2011, 2(g).
  2. SPP1/03, p3.
  3. SPP1/03, Annex 1 and 3.
  4. Guideline for SPP1/03, p; see also Floodplain management in Australia: best practice principles and guidelines: SCARM Report 73 (2000) CSIRO Publishing.
  5. COI, Transcript of Proceedings, p4709 (8 November 2011: Day 55).
  6. Ibid.
  7. Planning for stronger, more resilient floodplain: Part 1 – Interim measures to support floodplain management in existing planning scheme (Draft) (Draft Guideline to TSPP2/11), p11.
  8. TSPP2/11, Annex 1.
  9. TSPP2/11, Annex 1; the Guideline to TSPP2/11 also states (at p12) 'A Temporary Local Planning Instrument (TLPI) may also be an option for adoption of the mapping and code provisions however, preference is for a minor scheme amendment process be followed'.
  10. Guideline to TSPP2/11, p12.
  11. Guideline to TSPP2/11, Schedule 1.
  12. TSPP 2/11, 4.4; see also Sustainable Planning Act 2009 (Qld), s49.
  13. Notably, Brisbane and Ipswich city councils have already altered the effect of their respective planning schemes by making temporary local planning instruments according to Sustainable Planning Act. These TLPIs, which introduce interim flood lines based on the extent of the January 2011 floods, have a similar intent to the operative provisions of TSPP2/11, however, they have a different effect.
  14. Guideline to TSPP2/11, p12.
  15. Similar to the 'sequential' and 'exception' tests contained in the United Kingdom's Planning Policy Statement 25: Development and Flood Risk, Revised March 2010 (2006).
  16. See, for example, Government of the Netherlands, Spatial Planning Key Decision, Room for the River (19 December 2006).
  17. This was recommended by the review, following widespread flooding in the United Kingdom in the summer of 2007; see The Pitt Review, Learning lessons from the 2007 floods: an independent review by Sir Michael Pitt (June 2008) United Kingdom Cabinet Office (Department for Environment, Food and Rural Affairs and Department for Communities and Local Government).
  18. This has already been subject to recent examination by the Queensland Government; see State of Queensland, Increasing Queensland's resilience to inland flooding in a changing climate: final report on the inland flooding study (2010) Department of Environment and Resource Management and Department of Infrastructure and Planning and Local Government Association of Queensland; see also the UK Planning Policy Statement 25 and the Pitt Review.

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