Catastrophic flooding and murky legal waters

The recent heavy rain and flooding in parts of Queensland and New South Wales saw infrastructure crumble under the force of swirling flood waters while domestic, commercial and industrial waste floated down rivers and through towns. Cooking oils from inundated restaurants leaked, underground carparks inadvertently discharged chemicals and fuels stored for back-up generators, hydrocarbons (from multiple sources) seeped into the waters and green waste from fallen trees, riverine plants and mud sloshed into the flood waters.

In the face of these catastrophic events, there are relevant legal and policy matters to consider in the immediate flood response, while recovery and planning for more flood resistant communities, particularly in Queensland and New South Wales, is also required.

Legislative exemptions in disaster situations

On Sunday 27 February 2022, the Queensland Minister for Emergency Services declared disaster situations for the Brisbane and Gympie local government areas (LGAs) and the disaster district of Maryborough (Fraser Coast Regional Council) under section 64 of the Disaster Management Act 2003 (Qld). The duration of the declared disaster is only 14 days unless extended.  

The declaration delivers a number of welcome legislative exclusions:

• sorting and storing waste, resulting from the disaster, during the period and in the area for the declared disaster, will not constitute Environmentally Relevant Activity 62 – Resource recovery and transfer facility operation[1]; and
  
  
• levy exempt waste for disaster management waste resulting from the disaster in the following areas:
  
  
  • Gympie;
     
  • Brisbane; and
    
    
  • Maryborough.

In NSW, the declaration of state emergencies and natural disasters, and the grant of legislative exemptions in relation to such emergencies, are managed under three main pieces of legislation:

• If the Premier is satisfied that an “emergency constitutes a significant and widespread danger to life or property” they may declare that a state of emergency exists under section 33 of the State Emergency and Rescue Management Act 1989 (NSW).  To date, no such declaration has been made;
  
  
• The NSW Government may publish a Natural Disaster Declaration section 5A of the Service NSW (One-stop Access to Government Services) Act 2013 (NSW) for the purposes of securing disaster recovering funding under the Commonwealth Government’s Natural Disaster Relief and Recovery Arrangements. Since 22 February 2022, the NSW Government has issued a Natural Disaster Declaration for 46 LGAs; and
  
  
• Following natural disasters, such as floods, the NSW Environment Protection Authority (EPA) may grant exemptions to the waste levy under section 284 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). To date, the EPA has waived the waste levy for 17 LGAs.

Temporary emissions licence

The Environmental Protection Act 1994 (Qld) (EP Act) allows the holder of an environmental authority to apply for a temporary emissions licence to change the conditions of the approval in response to an event or natural disaster. Typical condition changes permit contaminants to be released above the usual release concentrations or may even allow sludge or mud to be discharged from the site.

Where non-compliance with the environmental authority is likely to be prolonged, this may be an appropriate response by an operator.

In NSW, the POEO Act permits the holder of an environment protection licence to apply for an exemption in an emergency event (e.g. fires, floods, and fuel shortages). In certain cases, the regulations may prescribe the manner in which the exemption must be applied.

Notifications and compliance still required

Land-users should, at all times, consider whether they are:

• obliged to notify the relevant state authority of actual or potential environmental harm[2]; and
  
  
• in Queensland, complying with the general environmental duty which provides that a person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm.[3]

Failure to comply with the general environmental duty is not an offence in its own right but compliance with it may provide a defence to other offences under the environmental legislation.

Are these exemptions enough?

Taking a common sense approach, the states need to balance the need to temporarily remove debris and contaminated materials from homes and businesses with the need to safeguard against inadvertent contamination either resulting in:

• short term effects where the clean-up is made more difficult (e.g. when entities pump muddy water from basements into stormwater systems, it potentially creates complications for downstream or adjacent land); and
  
  
• long-lasting effects, which include permanent contamination or ecological damage (for example contaminated waters can be harmful to marine animals).

In Queensland, the waste levy exemption is unlikely to be a complete answer to minimising impacts caused by flood waste. It currently only relates to a limited number of LGAs. The declaration could be widened to include landfills in Ipswich located near Brisbane and also impacted by the flood.

Further, it should not be assumed that all landfills will accept all types disaster waste. For example, mud may be outside the parameters of the landfill operator’s environmental authority. 

Even if the landfill will accept such waste, it may be necessary to dry it before it is disposed of in the cells requiring resources and double handling at significant disposal cost.

While it is helpful that the Department permits the temporary storage and sorting of disaster waste on sites other than landfills, this may not be the preferred option by local government where the waste presents a risk of materials migrating off-site, particularly if more rain is predicted and consideration of compliance with the general environmental duty continues to apply. 

Temporary storage in a park, for example, could be problematic given parks are often located near waterways or environmentally sensitive sites. Storage on sealed and bunded sites would be ideal as a temporary solution, where such sites are available.

If the waste is non-spadable or is greenwaste that could ultimately be mulched on site, there is a case to allow an exemption for public sector entities regarding environmentally relevant activities of waste disposal (ERA 60) and crushing, milling, grinding or screening (ERA 33).

While the exclusions offer some relief, more may be needed to be truly effective.

More broadly, Queensland may wish to reconsider whether public sector entities should be given greater ability to carry out some disaster mitigation activities, such as dredging, by increasing the quantity thresholds by which material may be removed and lifting associated riverine plant protections, for example.

What is the role of local government and planning?

There has long been argument that planning decisions must better protect against disasters.  

However, it is important to note that many towns and cities throughout Australia were historically established on flood plains for various reasons including being located near a water source. The Brisbane City Council estimates that almost 90 per cent of the residential properties that were affected by the 2010/2011 floods were in areas predominantly developed prior to 1978, the year in which the council adopted a defined flood level as a planning tool.[4]

Planning systems do not operate retrospectively. Improvements in development planning may only be achieved when development applications are assessed against legislation and planning instruments that recognise flood constraints and given climate change predictions it may be conservative if higher water levels are recognised. 

Where residential uses have been established historically, there is little the planning system can do to mitigate the risk of flood damage. For this reason, following the 2011 floods, some local governments offered (or considered) to buy back residential properties in flood prone areas where future flood impacts would be overwhelming.   

In NSW, under the Floodplain Management Program, local councils can seek funding from the NSW Government to implement voluntary purchase and voluntary house raising schemes within their LGA.  

While expensive in the short term, these may be long-term economically sensible decisions. – for  example, residential land in flood plain areas that has been converted into recreational parks are less likely to require extensive clean-up than residential homes. Reducing the necessity for clean-up heavily resourced by the community would build flood resilience and, logically, improve the reputation of that city.

In terms of flood response, discussions with states about, or scouting for, suitable areas for temporary waste storage and sorting may play an important role in the management of future disasters.  Governments can seal surfaces and install bunding in readiness for future significant storm events.

For flood recovery, the reconstruction of infrastructure by state and public sector entities will likely benefit from exempted development[5] or otherwise accepted development classification under the Planning Regulation 2017 (Qld). More broadly, an emergency exemption to carry out certain works may apply.[6] 

In June 2021, the NSW Government introduced a new optional clause in the Standard Instrument (Local Environmental Plans) Order (2006) that permits councils to grant development consent to repair or rebuild a dwelling damaged or destroyed by a natural disaster despite any other development standards.[7]  

The clause has been adopted by more than 30 councils, providing them with the flexibility to enable reconstruction following a natural disaster. Notwithstanding the well-intentioned nature of the provision, it has been criticised for tacitly permitting the rebuilding of a dwelling on land that may no longer be suitable due to the ongoing risk of flooding. 

Setting aside the broader philosophical planning discussions, practically, developers should review their development approvals and assess compliance with all relevant conditions during this flood response and then recovery periods. For example, approval for operational works will require the installation of erosion and sediment controls and/or inner city commercial and residential buildings may require stormwater to be stored in, say, the basement and treated before being released into the stormwater network.  

In the short term local governments may well exercise their discretion and not take enforcement action against offenders. A prudent developer or land-owner will take immediate steps to ensure compliance with the development approval as well as ensuring compliance with the general environmental duty or risk being investigated in the near future. 

Conclusion

State Governments have recognised that Queensland and NSW have suffered and will continue to suffer disasters. Both states have provisions that are activated in disaster situations to assist communities to manage impacts. 

While these provisions are welcomed, they could go potentially further to ensure that residents, business owners and local governments do not incur extra fees or costs associated with double handling waste – but there is a fine balancing act.

There is a clear need for ongoing consultation and education about the risks of flood waste, not merely risks associated with immediate public health. As part of this, it is important for the community to play a role in determining acceptable flood risks and pressing governments to better plan.  This may result in a range of planning measures but in large part, what is built is built and back-zoning can only have limited impact. Expensive voluntary buy-back schemes may only be part of the solution.

Given the circumstances and the effect on local government, state and federal government budgets (e.g. cost of clean-up versus costs of mitigation; flood relief payments and less taxable income generated), it may be appropriate for all levels of government to contribute to buy-back schemes. It is unlikely that many local governments could afford to buy back many properties; the cost of land in larger cities is expensive and smaller councils may not have the budget or it may be better spent on flood mitigation infrastructure.

Disposal of flood waste may be challenging. Consideration should be given to whether uncontrolled washing or sweeping mud into the stormwater system, or even scraping it into skip bins, is appropriate. On a larger scale, the effects of pumping water from underground carparks should be considered.  

Developers and the operators of environmentally relevant activities should examine their approvals and take all reasonable steps to bring operations into compliance. If this is not possible, proponents should consider their options and apply, where able, for temporary emissions licence or to openly collaborate with the local government about non-compliances with development approvals.

One thing is certain, unless homeowners, businesses, developers and all levels of government can work together and make Australia more flood resilient, when the water levels subside and the disasters are over, there will still be mess that needs to be managed.