Anacapri Holdings Pty Ltd v Kempsey Shire Council
[2012] NSWLEC 1006
•19 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Anacapri Holdings Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1006 Hearing dates: 16 January 2012 Decision date: 19 January 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is dismissed.
2. The amendment to part condition 22 of the approval by Kempsey Shire Council of Development Application T6-11-95 for a 2-lot subdivision at 36-38 Pacific Street, Crescent Head is refused.
3. The exhibits are returned.
Catchwords: MODIFICATION - condition of development consent for subdivision specifying minimum floor height of future development Legislation Cited: Environmental Planning and Assessment Act 1979
Kempsey Local Environmental Plan 1987
Land and Environment Court Act 1979Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Category: Principal judgment Parties: Anacapri Holdings Pty Ltd (Applicant)
Kempsey Shire Council (Respondent)Representation: Counsel
Mr R Dennis, agent (Applicant)Mr G Underwood, barrister (Respondent)
Cooney Harvey Doney Lawyers (Respondent)
Solicitors
Self represented (Applicant)
File Number(s): 11038 of 2011
Judgment
ACTING SENIOR COMMISSIONER: This is an appeal against a condition imposed by Kempsey Shire Council on the approval of Development Application T6-11-95 for a 2-lot subdivision that created Lots 121 and 122 at 36-38 Pacific Street, Crescent Head (the site).
The appeal was subject of a conciliation conference on 16 January 2012 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). The conciliation conference and hearing were conducted at the council chambers and an inspection of the site was undertaken with representatives of the parties.
The condition in dispute was condition 22 and specifically that part of the condition that relates to a restriction on the habitable floor level of future buildings, where it states:
A restriction which requires the habitable floor level of any buildings on proposed Lots 121 and 122 to be at or above the flood planning level for the site, as required by the version of Kempsey Shire Councils Flood Risk Management Policy at the time an application for development is lodged.
The applicant was granted leave to amend the application at the hearing and proposed the following alternate part condition 22:
A restriction which requires the habitable floor level of any buildings on proposed Lots 121 and 122 to be at or above the flood planning level of RL 4.20 AHD, including the council's sea change level of 0.46 m, or a higher level if specified by any review of Kempsey Shire Councils Flood Risk Management Policy or similar document, at the time an application for development is lodged.
The council's case
The council did not provide any expert reports although a number of documents were tendered, including relevant planning controls, memos, the Flood Risk Management Policy - No CPOL-43 (the Policy), extracts from other related historic flooding documents and council reports. Council officers were also present at the hearing to address any concerns or clarify any matters raised by the Court.
The council's position was that the Policy was the relevant document for consideration and that condition 22, as set out in the consent, reflected the requirements of this document. It was acknowledged that the Policy was not based on a flood study but was the compilation of historical data gathered by the council over a number of years. The Crescent Head village is identified in cl 7.2 where it states that the minimum habitable floor level is identified in Annexure No. 7. Annexure No. 7 was originally included in the council's policy Development in Local Floodways and in Flood Prone Lands adopted on 23 May 1983. This document was amended over time and the current Annexure No. 7 shows that the site falls within Area No. 1 where it states:
Minimum Floor Height RL 4.25 metres AHD.
This flood level has been in existence since 1991 when it was reduced from RL 4.35 m AHD. When combined with the council's adoption of the Interim Policy on Sea Level rise on 14 December 2010, a further adjustment of 0.46 m is required thereby providing for the minimum floor level for any development on the site to be RL 4.71 AHD.
The council maintained that if the applicant sought to modify the minimum floor height requirement in the Policy, then the onus rests with the applicant to support a revised minimum floor area through a flood study.
The applicant's case
Mr Robert Dennis, a civil and structural engineer, represented the applicant. He did not provide any expert evidence but tendered a number of documents that supported his position that the council's flood planning level for the site of RL 4.71AHD was not correct and was unreasonable. Mr Dennis states that Annexure No. 7 does not represent a realistic flooding pattern and levels for the site and wider village area.
Mr Dennis states in a document titled "Flood Level Assessment", dated 31 March 2011 that the 1 in 100 year AEP flood level, including an adjustment for sea level rise, should be no more than RL 3.76 m AHD although at the hearing indicated that he would accept a RL of 4.20 m AHD. His assessment is based on the likely path of floodwaters flowing from the flood plain west of Crescent Head and local catchments and the relative levels of properties in this area. The RL of 3.76 m AHD is considered to be a conservative assessment given that obstructions and surface friction has not been taken into account in the calculations.
Mr Dennis states that based on the inspection of the site and surrounding area by the Court, there can be no reasonable basis for the RL 4.25 m AHD requirement for Area No. 1 in Annexure 7 when Area No.2, on the opposite side of Pacific Street, specifies a minimum floor height of RL 2.8 m AHD. In his opinion, there is little difference in the topography of the land on either side of Pacific Street to support the differences in the planning levels suggested by the council.
Findings
On the question of whether the condition should be modified in the terms sought by the applicant, I am satisfied that the question should be answered in the negative for a number of reasons. First, I am satisfied that the Policy should be given significant weight in the assessment of the application. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, McClellan CJ made the following relevant comments on council policies:
88 The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court.
89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not "the only means of discerning planning policies or the 'public interest'" (at LGERA 210).
90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act . It was similarly acknowledged in s 91 of the Act in its original form, it must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.
91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
· the extent, if any, of research and public consultation undertaken when creating the policy;
· the time during which the policy has been in force and the extent of any review of its effectiveness;
· the extent to which the policy has been departed from in prior decisions;
· the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;
· the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
· whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
In this case, the Court was advised that the Policy has been advertised and formally adopted by the council. The Policy has also been in existence, in different forms, since around 1983 and contains provisions that seek to protect development in flood prone lands from inundation. There was no suggestion is that the policy was in conflict with the NSW Coastal Policy. Similarly, there was no evidence to suggest that the council had applied the Policy in an inconsistent manner. Notwithstanding the comments of Mr Dennis, I do not accept that the Policy could be said to contain significant flaws but, in my view, reflects outcomes which are within the range of sensible planning options.
Second, and while Mr Dennis is not incorrect in stating that the appropriate floodline should be a contour line rather than a physical boundary, such as a street alignment, this unfortunately reflects the absence of a proper flood study for the area. The absence of a flood study is not optimal however the council is legally required to address the impact of flooding on land within their local government area, particularly given the obligation under cl 12(1)(a) of Kempsey Local Environmental Plan 1987. In the absence of any expert drainage or flooding evidence to properly contest the council's conclusions, it would be unsound to simply adopt an arbitrary minimum floor level for any future development on the site.
Third, I do not accept Mr Dennis' approach that the 1980 map that identified a contour line and was identified by council as a 1 in 90 year AEP flood level, should be given preference over the Policy. As I understand, the 1980 flood map was part of the data that was used by the council in the formulation and modification of the Policy and, in essence has been superseded by other actions of the council since 1980.
Fourth, and in relation to Mr Dennis' "Flood Level Assessment", I accept the evidence of the councils Drainage Engineer, Mr Castle in his memo dated 20 July 2011, that found the conclusions could not be supported for a number of reasons, including a lack of hydrological modelling and the non-compliance with the requirements of the NSW Flood Prone Land Policy and accompanying Flood Plain Development Manual 2005. Given Mr Castles specialist expertise in drainage, I also accept his explanation of the likely path of floodwaters flowing from the flood plain west of Crescent Head and local catchments considering the relative levels of properties in this area, in preference to the conclusions of Mr Dennis in his "Flood Level Assessment".
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The amendment to part condition 22 of the approval by Kempsey Shire Council of Development Application T6-11-95 for a 2-lot subdivision at 36-38 Pacific Street, Crescent Head is refused.
3. The exhibits are returned.
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G T Brown
Acting Senior Commissioner
Decision last updated: 19 January 2012
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