A sequence of weather events that connected a cyclone off Madagascar, a blocking high pressure off the west coast of New Zealand and polar air drawn up from Antarctica, conspired to create a major rain event across the Australian east coast. The ground was already saturated after higher than average rainfall, triggered by the La Niña ocean current pattern. Three weather episodes one after the other would usually have created a notable but not record breaking flood, but the fourth and final wave of rain was so intense that it created a catastrophe.
On February 28 2022, the biggest flood in modern Australian history inundated Lismore, and the rest of the Northern Rivers catchment. Over the next two days, about 670 millimetres of rain fell in the region, and the waterways surrounding Lismore rose to a peak of 14.4 metres.
Lismore, in northern NSW, is located on a floodplain at the intersection of the Wilsons River and Leycester Creek and was in the crosshairs. As the river levels rose, official warnings from the State Emergency Service (SES) and Bureau of Meteorology gave no real hint of what was to come.
The majority of homes on the Lismore flood plain are two storeys high, which if residents retreated upstairs would have put them above the previous 1974 record flood level of 12.15 metres.
“People moved their vehicles to land that had always been above the flood levels. Families moved possessions upstairs in their two-storey homes, expecting that they would be safe – only to find themselves engulfed in rising water, two metres higher than expected,” a NSW Flood Inquiry submission said.
Lismore’s CBD was cut off, with major roads in and out of the area experiencing closures. Twenty-four hours after the floods topped out at Lismore, residents downriver at Woodburn, Coraki, Broadwater and Wardell were inundated and a major rescue plan had to be initiated here after already stretched resources were dealing with events in Lismore.
The SES response was heavily criticised, pointing to a lack of coordination, local knowledge and inadequate training by teams that were dropped in, as well as the failure to evacuate the lower river towns earlier.
The northern rivers floods were Australia’s biggest natural disaster since Cyclone Tracy in 1974. It was the second-costliest event in the world for insurers in 2022, and the most expensive disaster in Australian history. Many residents had found premiums unaffordable and had no insurance at all. Some estimates suggested that up to 31,000 people were impacted, not just from the total loss of or damage to their homes that became uneconomic repair, but from a huge collective emotional trauma.
A year on from the event, The Northern Rivers Reconstruction Corporation (NRRC), funded by the federal and NSW governments, was assessing over 6,000 flood-impacted residences for buyback, raising or retrofit.
A survey by Southern Cross University highlighted that, at the end of 2022, almost 52% of flood victims were living in the shells of homes that had flooded; 26% were living in temporary accommodation such as caravans, sheds or pods, or with friends or family; 18% were living in insecure accommodation such as tents or temporary rentals; and 4% were no longer living in the region.
The community is going through a painful process of rebuilding not just the fabric of the town, but also their community spirit. Having initially been motivated to seek repair, it quickly dawned on many residents how slow the recovery process would take. Many were in limbo, unsure if they could get an insurance or government payout, families forced into caravans or in single hotel rooms. Thousands have lost heart and disconnected from the recovery process and support.
Most concerning from the survey was evidence of low levels of mental health. Twenty percent of people said they were coping with the stresses and challenges of recovery and 60% said they were not coping, underlining the apparent longer-term effects of Post Traumatic Stress Disorder (PTSD)
For those able to get insurance and were drawing to the end of their temporary accommodation, there was concern as to whether they could access any of the 11 pod villages built by Resilience NSW across the region. The villages are designed to house 1,800 people for up to three years.
The frustrations remain palpable, but it’s important to stress that the Government has recognised this and made extraordinary provision from an unprecedented event. The problem is that this will not be unprecedented and will become just “normal”. Indeed, during the current summer of 2023/24, Lismore and the rest of the Northern Rivers towns have once again experienced heavy rains and flooding, reopening old wounds again.
Lismore 2022 – The Anatomy of a Flood.
Advising clients on flood risk
Conveyancers and lawyers are acting in their clients’ best interests and to advise where decisions that could be made are exposed to significant risk. For this reason alone, the homebuyer has a right to know what could lie ahead as they make the most expensive financial decision of their lives.
Lawyers have an automatic duty of care to their client – it is a fundamental principle of the contract, but it goes wider than that. A legal opinion from Norton Rose Fulbright (insert link to landing page), one of Australia’s pre-eminent environmental law practices, was published in Spring 2023. The Opinion identifies that not only do lawyers and conveyancers have a duty of care, but they also have a duty to disclose and to warn on the basis that information is readily available for them to do so in an easy and accessible way.
There have been a number of prominent legal experts and associations that have also spoken out to this effect. Justice Brian Preston, Chief Judge of the Land and Environment Court of NSW, published a 2020 paper on adopting “A climate conscious approach to legal practice”. He stated that it requires lawyers to have an active awareness of the reality of change and how it interacts with daily legal problems” and to “giving advice and litigating or resolving the legal problem or dispute in ways that meaningfully address the climate change issues.”
In 2021, The Law Council of Australia published their climate change policy. In the summary, they stated that “lawyers should be alive to the unfolding legal implications of climate change and its consequences, and they should be informed, skilled and ready to assist clients on climate change-related legal matters, within their areas of skill and competence.“
The New South Wales Law Society is perhaps the most proactive Lead Association to date and has established a Working Group to consider how best to support members and to develop its advocacy work on how to respond to the climate challenge from a legal perspective.
We understand that the NSW Law Society reviewed the UK Law Society Guidance (link) and its core principles, as well as the legal opinion from the pre-eminent environmental law team at Norton Rose Fulbright (link) Formal climate risk guidance is anticipated to come out in 2024 which will aim to advise firms on the best way to communicate risks to clients, including the use of available data tools.
A simple way to meet future compliance
The Climateindex™ report provides a clear, simple way to support your client care and fulfil your duties, while preparing for new Guidance. Through careful modelling and plotting a prediction based on current trends for the 3 key physical risks in one location. This makes it cheaper and more efficient for the lawyer and provides improved insight to support the prevailing 10.7 Certificate that typically looks at past events without signposting to what the future trend could be.
It provides property-specific assessments for individual residences, instead of broad regional ratings. They are specifically designed for property lawyers and conveyancers to do their due diligence and better inform buyers.