Hill M & GP Williams v Rurarl City of Wangaratta & Ors [2000] VCAT 2593

and Conservation: Ms N Bannister of Blake Dawson Waldron, Solicitors.

Application for review under S. 215 of the Water Act 1989 ("the Act").

1. These appeals concern a Water Management Scheme for the Wangaratta area prepared by a community based committee appointed pursuant to s 214 of the Act. The Minister subsequently modified the Scheme and accepted the Scheme as so modified (s 215 (3B). The modification provided that protection rights be provided in lieu of compensation being paid to affected property owners.

2. Pursuant to Clause 5 (of s 215) Mr and Mrs Williams and Mr & Mrs Hill have applied to the Tribunal for a review of the Minister's decision.

3. The Rural City of Wangaratta straddles practically all of the King River Catchment and a major portion of the mid to lower Ovens River Valley and its tributaries.

4. Serious flooding has occurred in the Wangaratta area since settlement with major floods occurring on six occasions between 1851 and 1993. Flood mitigation works were constructed following the 1974 and 1981 floods which however did not prevent damage to property by the flood which occurred in October 1993. That latest major flood was calculated to have a return period of about 1 in 125 years on the Ovens/King Rivers and affected some 3,500 homes and 2000 farms.

5. Following community concerns, the Department of Natural Resources and Environment (NRE) arranged for consultants to study flooding at Wangaratta resulting in the Wangaratta Flood Mitigation Study - Stage 1. One finding of the Study was that the estimate of the 1% flood event was estimated to be 177,000ML/day whereas the 1993 flood event had magnitude of 190,000ML/day.

6. A further study was then commissioned, overseen by a community based committee, and developed the Wangaratta Water Management Scheme. The strategy recommended by the study is set out in full on page 49 of the report and will not be repeated here.

A supplementary report also identified 11 properties which required either further protection or further compensation. The report made it clear that this was being provided as a result of the impact on this property from previous schemes and works and not the impact from this scheme. Although the community committee recommended that compensation be provided, the Department of Natural Resources and Environment recommended that the Minister undertake protection rights instead. The scheme has been accepted with this modification.

8. The properties of both Applicants were discussed by Mr Ian James Gauntlett, a Civil Engineer of some 20 years experience in the areas of hydrology and flood plain management and in the employ of DNRE.

Mr & Mrs Hill own a property located on the Ovens River floodplain downstream of the North Wangaratta levee and upstream of the North East railway line. Flood planning maps developed recently for the City of Wangaratta by the Department show the whole of the Hills property as being floodway. This is the area of the floodplain where significant discharge or storage of water occurs during a flood event. Floodways are areas which, if filled or even partially blocked, would cause a significant redistribution of flood flow, or significant increase in flood levels. Floodways are often aligned with naturally defined channels and are often, but not necessarily, areas of deeper flow or areas where higher velocities occur, and also include areas where significant storage of floodwaters occurs. Areas that are benign for small floods may experience much greater and more hazardous flows during larger floods.

10. He said that a survey carried out on the Hill property showed the highest point to be at 143.05m AHD with the majority of the property being below 142.8m AHD. The area above 142.8m is 0.28 hectares. Hydraulic modelling undertaken for the Hill property showed that the 20% return period flow to be at a height of about 142.82m. The property would be totally submerged in an 8% flood (143.05 AHD).

11. Further he said that modelling had shown that the increase in the depth of flooding on the Hill property due to the proposal would be about 10mm and then commented:-

Overall, best practice principles as outlined in the document Floodplain Management in Australia: Best Practice Principles and Guidelines (Appendix J) confirm that the Hill property is in a High Hazard area and as such, an appropriate management plan should be developed by the Hills to re-locate their cattle to safe ground in the event of a flood. The proposed scheme does not affect the nature of flooding on their property nor does it reduce the availability of safe high land.

12. With regard to the Williams property he gave the following comments:-

A natural surface level recorded of EL 144.18m AHD would indicate that the property floods very frequently as the 1 in 20 year (5%) flood level has been calculated to be EL 144.60m AHD (ie a depth greater than 0.4m). In a 1% flood event the property would flood to a depth in excess of 0.8m on the highest land - other parts would be deeper.

The land has been identified as floodway on the Flood Planning maps developed for the Rural City of Wangaratta. ... As stated previously, this is the portion of land subject to inundation necessary to convey the main flow of flood water, and usually comprising the high-hazard portion of the floodplain where most development is to be avoided.

The Williams house (Glenloth) was raised as part of the original flood mitigation works as it was flooded extensively in the 1974 flood event.

The property is located some 600m from the Wilson Road levee and access and egress to high land in all moderate and major flood events would be prevented because of the depth of floodwater. Because there is no high land on the property, location of stock on the property would create a very high level of risk and sound floodplain management principles would indicate that an evacuation plan for removal of stock prior to a flood would be the only safe course of action. Wangaratta has a flood warning system which gives adequate prior warning of an impending flood but it would not be appropriate to secure stock behind a stock refuge levee as this may be overtopped or breached during a flood event. In addition flood levels could increase beyond those predicted and if livestock are trapped in a refuge and unable to be relocated to high ground, a disaster could occur.

He said that an aerial photograph taken during the 1974 flood showed "the property to be completely inundated and the existing refuge did not provide a safe area for stock during an event".

13. Finally he submitted that hydraulic modelling determined:-

At the Williams property the effects of the current proposal would be an increase of 10mm in depth in a 1% flood event. Given the degree of flooding of the Williams property, the increase could not be regarded as significant.

Mr Williams house was flooded to a depth of over 500mm during the 1974 flood event and was subsequently raised significantly under the previous scheme. Hence the house has already received a significant benefit due to the raising.

As access and egress is already prevented in all moderate and major flood events, the proposed works will not alter the Williams situation to any degree. Likewise there is currently no safe area for a stock refuge and the proposal does not alter this situation nor does it further reduce the Williams ability to evacuate stock during a flood event.

Overall, given the significant nature of existing flooding to the Williams property, the proposed works would not effectively increase flood levels or duration of flooding.

14. For NECMA, Mr Roel von't Steen, Floodplain Manager Officer for the Authority, gave the following comments on the two properties:-

It is inevitable that any levee protection scheme puts an additional burden to the remainder of the floodplain. The issue here today is if those effects are acceptable, given the (additional) protection the City receives from the proposed Scheme.

The Williams purchased the rural property "Glenloth" located on the Ovens floodplain immediately above the Wilson Road levee after the construction of the present levee (which is to be partly raised as part of this proposed scheme). The property has a long history of flooding and is in this Authority's opinion correctly shown as Rural Floodway Overlay in the current Rural City of Wangaratta's Planning Scheme. This Overlay would be there irrespective of any levee scheme. The modelled effects of the proposed Scheme show that a flood of 1% proportions would increase the depth of flooding by .01m as a result of this proposal. The Authority considers this acceptable and will monitor any future flood events in this floodplain.

The issue of stock refuge is part of a current planning permit application by Mr. Williams and not relevant to this Scheme. This Authority believes that this issue should be dealt with by the Ovens (Whorouly/Wangaratta) Rural Flood Study.

On Mr Hill's property a flood water level was measured at 142.6m AHD on Monday (11 September 2000) afternoon, but this was approximately 0.2m below the peak which was reached on Sunday night. This gives credibility to the modelled flood heights. For the bigger flood events like October 1993 the flood height on Mr Hill's property would increase to 143.43m AHD, which does not provide any dry land on the land surveyed. ... eight flood events in the last 25 years have flooded Mr Hill's property.

In the period 1946-1974 only 3 flood (1955, '56 & '57) events occurred that would have affected Mr. Hill's property to a substantial degree, and were of a magnitude below the September '75 flood event. Due to a statistical "wet" 25 year period 1974 - present, an inflated idea of the inundation of this particular property could be perceived, however this would be independent of the constructed flood mitigation works.

Irrespective of the levee presence the property is within the natural floodway of the Ovens River. For the 1% flood event the property is expected to be .01m worse off with the proposed scheme. The Authority considers this acceptable and will monitor any future flood events closely.

15. The Williams submission dealt primarily with an application by these owners to raise the height of an earthen bank which provides stock protection on their property in times of flooding.

16. Being a separate application which has been made to the Responsible Authority, this matter will not be addressed as part of this determination.

17. Mr & Mrs Hill made the following points in response to the foregoing and in support of their application:-

* There has been a negative impact on a number of properties within the floodplain at which the flood level has been increased (Floodplain Management Study, Stage 2 on p.12).

The increased depth of flooding is shown to vary from 150mm to 350mm at various locations.

* Property owners in the floodplain should be treated equitably with those receiving protection.

* We rely on two areas of high ground in flood events. "Surely the Parfatt Road and Wilson Road levees and other (earlier) works have been responsible for this loss of high ground". (Hill's submission p.4).

* The diversion will result in 10mm of additional depth of flooding and will remove all remaining high ground.

* The loss of high ground will force us to change our vealer enterprise at a considerable financial loss.

* Flood events of the late 1980s have resulted in significant erosion and increased deposition of unwanted materials.

* We accept that our farming enterprise is conducted in a floodplain but we believe the height and velocity of flooding has been increased by man made diversions, etc.

* The present flood mitigation system will have further impact on us both socially and economically devaluing our property.

* We have not been offered protection or compensation yet our property lies within the Flood Overlay.

18. Reviewing the submissions presented in these reviews it is clear - and was agreed by all parties - that the properties of both applicants are located well inside the flood plan and centrally to the flood flows.

19. Both properties have already been raised although not sufficiently to avoid the effects of the 1993. There was no suggestion by any party that the properties could or should be raised a second time.

20. Mr & Mrs Hill suggested that the earlier protection works have acted to increase the flow of water into their property. However no evidence was presented to substantiate this nor to indicate the depth of the alleged increased flow.

21. It is also clear from the evidence of Mr Gauntlett, that the increased depth of flooding over both properties would be about 10mm which is an insignificant increase over the depth of existing flooding. No evidence whatsoever was presented by the Applicants to contradict this view. We therefore accept the evidence of Mr Gauntlett which is based on some 20 years experience in such work.

22. Mr & Mrs Hill submitted that the increased depth (10mm) would force them to cease their "vealer enterprise". It is difficult to see how such a small increase over and above the existing depths, could force such a change.

23. Further submissions were sent in by Mr & Mrs Williams on Friday 3 November 2000 and after the hearing had ended. This behaviour is contrary to Tribunal practice, and as pointed out by the Supreme Court of Victoria in City of Springvale v Heda Nominees Pty Ltd [1982] 1 PABR 287, further submissions should not be entertained by the Tribunal. This has been adopted by the Court of Appeal in Stockdale v Alesios & Ors [1999] VSCA 128; (1999) 3 VR 169, where the Court held that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions. The Court of Appeal went onto hold supplementary or further submissions unsatisfactory, to only be submitted in exceptional circumstances, none of which exist here. Accordingly, the Tribunal has not taken these late submissions into account - so there was no need to give other parties a hearing in response.

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