Author: Penny Murray – Partner – DibbsBarker Lawyers.
If a property is subject to flooding or localised stormwater drainage issues, then it can materially affect the viability of a property development and its prospects of being approved by a planning authority.
In NSW most people rely on a planning certificate / section 149 certificate which is obliged to identify whether the land is subject to “flood related development controls”. Sometimes a property is on a flood planning map and it is obvious that the property will be subject to flood hazards that may restrict or prevent development.
In most cases it is not so obvious. Many Councils do not yet have flood planning maps and may instead have generic flood controls that require applicants to consider flood risks. This means applicants should undertake their own due diligence as to likely flood risks for that property which is likely to require the advice of consultants. Other options are to review Council’s website to see if it has a draft or flood control policy or information that is not yet formally adopted by way of a local environmental plan.
It is important to note that even if a property is not identified as subject to flood development controls in the planning certificate, the site may have flood issues that have not yet been identified by or have been overlooked by Council (it is difficult to sue Council for errors in this regard by virtue of section 733 of the Local Government Act) or be subject to localised stormwater drainage issues that often aren’t encompassed in flood planning maps. Accordingly, applicants should make reasonable and adequate enquiries before purchasing a property for redevelopment purposes.
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