A question from the NSW SES in the Murray/Murrumbidgee regions.

In this part of the world there are a great many raised irrigation channels criss-crossing the countryside and they make very effective levee banks which can and do impede the flow of flood water.  In the flood event last spring, as in previous events, it was suggested that an irrigation channel should be breached in order to allow flood water to escape, thus avoiding inundation of properties at threat.  Often the consequence, apart from the damage to the irrigation channel, will be inundation of properties downstream of the breach, but such inundation would cause less damage than if the channel were not breached.

In such circumstances Local Emergency Management Committees usually look to the SES Incident Controller to make the decision to breach an irrigation channel.  The questions I have on this are:

(1)    Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

(2)    If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

(3)    Who is responsible for repairing the breach after the flood has passed?

(1)    Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

The critical issue here is that there is no power to order such a breach under the State Emergency Service Act 1989 (NSW).  Under that Act the Commissioner, acting through his or her delegate can exercise powers ‘to evacuate or to take other steps concerning persons’ (s 22) and ‘take other safety measures’ (s 22A).   The ‘other safety measures’ are:

(a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

None of those powers would include a power to damage an irrigation channel.   Breaching a levee is not ‘shutting off’ the supply of water.  Further the levee is part of the land, that is ‘real property’ and it is my opinion that it would be not be covered by the term ‘any material or thing’.

Remember too that the Commissioner can only exercise those powers when dealing with an emergency caused by a flood (ss 8(1)(a) and 19).   Flood is not defined.  If we take the definition of flood that was adopted for insurance purposes after the Queensland 2011 floods (Insurance Contracts Act (Cth) 1984 s 37B and Insurance Contracts Regulations 1985 (Cth) r 29D), flood means:

… the covering of normally dry land by water that has escaped or been released from the normal confines of any of the following:

(a) a lake (whether or not it has been altered or modified);

(b)  a river (whether or not it has been altered or modified);

(c) a creek (whether or not it has been altered or modified);

(d) another natural watercourse (whether or not it has been altered or modified);

(e) a reservoir;

(f) a canal;

(g) a dam.

Water in an irrigation channel is not a flood though it may become a flood at some later point.  If the flood is occurring down river then the action of breaching the levee bank could be a response to the flood emergency but that doesn’t change the fact that there is no specific power in the Act to take that action.

Who does have such power?  The answer is the Minister in the event of a declared state of Emergency.  When an emergency has been declared (State Emergency and Rescue Management Act 1989 (NSW) s 33) then the Minister, through his or her delegate, can exercise various powers.  The Ministers powers (s 38) include the power to ‘take possession and make use of any person’s property’.  If the Minister took possession of the land (the ‘real property’) that included the levee he or she could use that property and the surrounding land as an ‘escape valve’ to release the water.

(2)    If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

No, the person who, in good faith, ordered the breach will not be liable for damages.  The person appointed as the incident controller or otherwise exercising powers under either the State Emergency and Rescue Management Act 1989 (NSW) or the State Emergency Service Act 1989 (NSW) is not acting in his or her own affairs but, ultimately, as the delegate of the state of New South Wales.  Where they are an employee their employer will be vicariously liable and I have argued elsewhere that will also be true for volunteers.   That would be true even if they acted without lawful authority because the whole point of vicarious liability is to apply when there has been a default.   There is NO chance that it would be the individual that would be the source of damages, it would be the State of New South Wales.

Would the landowner be entitled to compensation? State Emergency and Rescue Management Act 1989 (NSW) says (s 33):

(2) If the property of a person is taken or used under this section that person is to receive such compensation as may be determined by the Minister, but is not entitled to receive compensation.

(3) Any such person may apply to the Premier for a review of any determination as to compensation made by the Minister under this section.

So if the Minister takes possession of a person’s land and uses that as a place to release waters to reduce the impact of the flood downstream, the Minister is to determine the amount of compensation paid but it is an ‘ex gratia’ payment, that is there is no ‘right’ to the payment.  An appeal from the Minister’s determination lies to the Premier.

But just because that is what the Act says there is no entitlement to compensation under the Act, it doesn’t mean that there are not other legal remedies the landowner could apply.  What’s happening is that the landowner is being asked to fund the mitigation of properties downstream.    In Whalley v The Lancashire and Yorkshire Railway Company (1884) 13 QB D 131 following unprecedented rainfall, water built up against and was threatening to destroy an embankment.  To protect their embankment, the defendant railway company cut trenches to allow the water to escape onto the plaintiff’s land doing more damage than would have been done if the water had been allowed to accumulate where it was.  It was held that the defendants had no right to protect their property by transferring the potential damage from their own land to that of the plaintiff, and they were liable.

The situation mentioned here is not quite the same as it’s not the downstream property owners that are seeking to damage someone’s land to protect their own, but the SES but the principle is similar.  If the land along the irrigation is not going to flood, being protected by the irrigation channels that are there, deliberately damaging the levee to release the water and thereby causing the land that was otherwise not going to flood to suffer damage, is to ‘transferring the potential damage from [the downstream] … land to that of the plaintiff’.

The presence of s 33 may give rise to an argument that a common law remedy was removed but if the SES purported to act, given no express statutory power, then the State of NSW would be liable to make good the damage.   There are arguments of necessity in the sense of acting for the greater good, but I don’t think they’d work.  Necessity may be a defence to say touching someone to act in that person’s best interests, or for breaking the law (see The Doctrine Of Necessity – Explained (January 31, 2017)) but it’s not going to justify harming A for the benefit of B where A is in no way responsible for the harm occurring to B.   One simply can’t justify prioritising one person’s interests over another to that extent.

(3)    Who is responsible for repairing the breach after the flood has passed?

Fundamentally whoever owns it but in light of the discussion above, they could expect the State to meet those costs, if not actually arrange the repairs.

Conclusion

I was asked three question.  My answers are:

  • Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

No, an SES Incident Controller relying on the State Emergency Service Act does not have that power.  The only person with that power would be the Minister during a declared state of disaster (but that would be delegated to the relevant Incident Controller).

  • If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

No the person who ordered the breach would not be liable. The State of NSW would be liable, subject to any limitation on the common law that may be implied by the State Emergency and Rescue Management Act 1989 (NSW) says (s 33).

  • Who is responsible for repairing the breach after the flood has passed?

The owner but he or she could look to the State of NSW to contribute to if not meet the costs.

Important disclaimer

I thought hard about whether I should answer this question.  My correspondent said these questions came up at a meeting and ‘we all thought we knew the answer.  However, I’m not absolutely confident that we have it right’.  I was not told what they thought the answer was, so I don’t know if what I’ve written will confirm their view of the answer, or confirm that they were right not to be confident.

I would not have answered it if I thought the SES Incident Controller did have the power to order a breach.  On the page ‘about’ I say ‘This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events’ nor would I want to give advice that I thought may be acted upon to cause significant damage.  If I said there was authority and someone acted on what is meant to be no more than a coffee shop chat, that would be risky for them and for me.  Where the advice is ‘you don’t have the power’ I feel more confident as no-one’s going to go and cause thousands of dollars of damage on my say so.

Even so, it should be noted that the issues raised by these question have been glossed over here and in particular I don’t have time to explore the relevant common law principles in sufficient detail.

My answer is that there isn’t relevant authority (at least not with the SES), but if the region thinks that this should be an option then the matter needs to be referred for professional legal advice, not a blog discussion.  NSW SES these days have an in-house lawyer who would be the first person to raise this with to explore in more detail whether or not the common law would be relevant, whether the SES Act should be amended or whether a relevant power could be incorporated via the Local Emergency Management Plan.

No one should rely on this blog as the final answer or the basis for future action.