Bhavsar v Blacktown City Council

[2023] NSWLEC 1487

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bhavsar v Blacktown City Council [2023] NSWLEC 1487

Hearing dates:

13-14 September 2022 and 7-8 August 2023

Date of orders:

29 August 2023

Decision date:

29 August 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development consent for Development Application DA-19-00438 seeking change of use of an existing residential dwelling to a place of worship, raising of an existing building, construction of a raised carpark and associated works on Lot 190 DP 633188, also known as 170 Grange Avenue, Schofields is refused.

(3) All exhibits are returned, except Exhibits F, K and 10.

Catchwords:

DEVELOPMENT APPLICATION – change of use of residence to place of worship – flooding impact and reliance on evacuation plan – effectiveness of stormwater design

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 2.3, 5.21, 7.1, 7.3, 7.5

Environmental Planning and Assessment Act 1979, ss 4.15,4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, appendix 12

State Environmental Planning Policy

Amendment (Flood Planning) 2021

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

Texts Cited:

Blacktown City Council Development Control Plan 2015

Department of infrastructure, Planning and Natural Resources, NSW Floodplain Development Manual, April 2005

Department of Planning and Environment, West Schofields Draft Masterplan, September 2018

Category:

Principal judgment

Parties:

Kunal Bhavsar (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Storey & Gough
Marsdens Law Group

File Number(s):

2021/178133

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA-19-00438 (the application) by the Blacktown City Council (hereafter the Council), which seeks a change of use of an existing residential dwelling to a place of worship, raising of the existing building, construction of a raised carpark area and associated drainage/effluent works on Lot 190 DP 633188, also known as 170 Grange Avenue, Schofields (the site).

2. For the reasons explained below, I am not satisfied that the proposed development addresses the relevant jurisdictional and merit assessment requirements for the Court to grant consent to the Development Application DA-19-00438.

Background

3. The application was submitted to Council on 1 April 2019 and was notified between 27 September to 11 October 2019. Council received four objector submissions in response, which generally related to noise, traffic, intensity of use, flooding and screening (Exhibit 3).

4. After internal review, the application was refused by Council, with the Notice of Determination issued on 28 August 2020.

5. The applicant appealed against the refusal of the application, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. Prior to the hearing, the applicant sought amendments to the application by Notice of Motion (NoM), filed on 18 May 2022, and without opposition of the respondent, the Court granted leave to rely on the amended application on 26 May 2022. The amendments to the application were tendered as Exhibits A to E.

7. The hearing for the appeal started with a site view, by agreement of the parties and was conducted initially by MS Teams and then in Court. Four residents provided oral submissions at the start of the hearing, summarised in Exhibit 1.

8. Based on observations made by the Court and the parties during the site view, the applicant sought an adjournment of the hearing to address jurisdictional issues that relate to contamination, flooding and provision of (sewage) services. The respondent was neutral in its position with regards to the adjournment, noting that an adjournment could potentially address some contentions and issues raised onsite.

9. To facilitate procedural fairness in the hearing of the appeal, and to consider relevant jurisdictional issues that arose from observations made in the site view, the Court adjourned the hearing and directed the applicant to: provide a relevant survey including elevations on the adjoining property; assess/address the current fill and contamination situation; review the proposed wastewater design (specifically regarding the effluent management area and existing outside toilet); and remodel the proposed drainage system adopting accurate elevations on the adjoining property.

10. During the adjournment of the proceedings, the applicant sought leave to further amend the application by NoM filed on 16 February 2023, which the Court granted leave, without opposition of the respondent, on 2 March 2023, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). These documents are tendered as Exhibit K.

Amended application and remaining contentions

11. The amended application is described as being for the:

• Change the use of the (residential) dwelling to a place of worship;

• Raising of the existing building on piers to a relative level (RL) of 17.9 m Above Height Datum (AHD);

• Construction of a suspended footway between the building and carpark;

• Construction of a raised carpark area by filling of the land;

• Construction of a swale to divert stormwater and floodwaters, with onsite water quality treatment and detention; and

• Provision of an effluent storage tank for onsite treatment of wastewaters.

12. The Court was advised by the applicant that the application does not seek any internal works to the existing building or to any other structures on the site, including the detached toilet.

13. Following the site view and considering the submissions of residents with regards to amenity (specifically light spill and privacy), the planners provided a supplementary joint expert report agreeing to landscaping along the eastern boundary, adjacent to the proposed elevated carpark area, as tendered in Exhibit 9.

14. The contentions of Council are described in the Amended Statement of Facts and Contentions (ASoFC), dated 29 July 2022 (Exhibit 2). Amenity, Plan of Management (PoM) and contamination issues raised in contention and during the site view are considered resolved by the planning experts in their further supplementary joint expert report (Exhibit 11), based on consideration of amended plans and documents granted leave to rely on in the hearing, tendered as K, Q and L.

15. It is noted that the operation of the place of worship is limited to restricted times and numbers (as described in the PoM and by condition). There will be no use of the site outside of these times to reduce noise impact. The landscaping and carpark design seeks to shield residents from light spill and protect privacy, and the provision of the half road construction seeks safe exit/egress.

16. The key issue that remains in contention is between the engineering experts that relates to flooding and stormwater management, specifically relating to sufficiency of information, potential for offsite impact and risk to life in flood events.

17. The Council also contended that the proposed place of worship would be inconsistent with the proposed changes to the zoning of the site to RU6 Transition, as anticipated in the West Schofields Precinct (Appendix 12) under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, although not yet gazetted. This is not determinative.

18. Below, as required in my determination of the amended application, I address the remaining contention/s of the ASoFC and relevant jurisdictional requirements, together with a merit assessment of the proposed development.

The Site

19. The total area of the site is 1.09 hectares (ha), generally oriented in a north-south direction.

20. The site is a regular, rectangular shape, fronting to Grange Drive, which forms the southern boundary of 60.32 m. The other boundaries of the site adjoin large lots comprising single level residential dwellings.

21. There is an existing single level dwelling located towards the front (south) of the site, a shed and toilet/outhouse at the rear of the dwelling, with the remaining area predominantly grassed with fragmented pockets of trees along the northern boundary. A swimming pool is located directly behind the dwelling.

22. The site generally slopes and drains towards the north and east, into an unnamed watercourse located at the rear and that ultimately drains towards Eastern Creek, located 250 m east of the site. The site is within the Hawkesbury-Nepean catchment and floodplain.

Relevant Planning Controls

23. The requirements of s 4.15(1) of the EPA Act are relevant for the Court’s consideration to grant consent to the application, as described below:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

(Emphasis added)

24. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from the landowner of the site. All works are proposed within the site.

25. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), with respect to contamination, the site must be deemed or capable to be made suitable for the proposed use, prior to grant of consent. The application relies on a: Detailed Environmental Site Assessment, prepared by Envirotech, dated 3 December 2019; fill soil characterisation report, prepared by Martens, dated 14 February 2023; and a Remedial Action Plan, prepared by Envirotech, dated 4 December 2019.

26. The proposed development is situated over land zoned RU4 Primary Production Small Lots, pursuant to cl 2.3 of the Blacktown Local Environmental Plan 2015 (BLEP). The proposed change of use to a place of worship with associated works is permissible with consent in the zone, and the relevant objectives of the zone are deemed satisfied.

27. The parties agree that the site is mapped as being flood prone, pursuant to repealed cl 7.1 and current cl 5.21 of the BLEP, amended pursuant to State Environmental Planning Policy Amendment (Flood Planning) 2021. However, it is accepted that based on the date of submission to Council, the application is saved from consideration of the relevant flooding provision (cl 5.21) of the BLEP as a consequence of cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 (the Order). It is accepted there are no flooding provisions of the BLEP relevant for consideration of the application, although the experts agree that the intent of the objectives of cl 5.21 should be a (merit) consideration of the Court.

28. The unnamed watercourse located at the rear of the site engages cl 7.3 of the BLEP in consideration of the application, which remains in dispute between the experts.

29. Clause 7.5 of the BLEP is a relevant consideration of the application. There is no dispute that the essential services of water supply and electricity are satisfied by the application, however the provision of adequate stormwater and wastewater management remains in dispute.

30. The Blacktown City Council Development Control Plan 2015 (BDCP) is relevant for consideration, with specific reference made to Part A, Section 7.2 (sewerage) and Section 9 (flooding).

31. In consideration of the amended application, the parties draw the Court’s attention to the following documents for reference and assessment:

• West Schofields Draft Masterplan. Exhibited August to September 2018. Department of Planning and Environment.

• NSW Floodplain Development Manual, 2005. Department of infrastructure, Planning and Natural Resources. (hereafter the FDM)

Experts

32. The Court was provided with joint expert reporting from the following experts:

1. Planning – Ms Mairead Hawes and Ms Nabila Sarwary.

2. Engineering (Wastewater/Flooding) - Dr Daniel Martens and Mr Laith Almoil.

33. Oral expert evidence was provided in the hearing by the engineering experts. By agreement of the parties and concurrence of the Court, the other listed experts were not called to give oral evidence because the contentions relevant to their expertise had been resolved prior to (by amendments to the application) and/or during the hearing, and the Court had no further questions based on their joint expert reports, supporting documents to the amended application and agreed draft conditions of consent.

Is flood impact sufficiently mitigated?

34. The contention as raised by Council is that the amended application is not supported by sufficient information to assess and/or be satisfied there is a likely adverse impact due to flooding to future users (worshippers) of the site or to the watercourse.

35. The experts agree that there are no relevant jurisdictional provisions in the BLEP in consideration of the application, however the objectives of cl 5.21, below, are a consideration on a merit basis:

5.21 Flood planning

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.

…

36. The experts agree that the site is flood prone and is mapped as being below the flood planning level (FPL), defined in cl 5.21 of the BLEP. The experts agree that the FPL relevant to the site is 17.9 m AHD. The experts also agree that the uplift of the existing dwelling and filling of the proposed car park are above the FPL.

37. The application relies on a bunded swale located along the eastern boundary of the site to direct overland flow toward the rear of the site, that is graded to the unnamed watercourse (and ultimately flows into Eastern Creek). It is agreed that the swale would have little effect in a mainstream flooding event, however it is not agreed that the capacity of the proposed drainage infrastructure has been properly assessed to sufficiently mitigate adverse impact.

38. The experts remain in dispute whether the swale should continue to the watercourse and the potential for erosion effects based on the proposed design. It was suggested by Dr Martens that the swale design could be amended by a condition of consent.

39. It is accepted that the site is affected by different sourced flooding, in events at and above the 1% Annual Exceedance Probability (AEP), including the Probable Maximum Flood (PMF). Floodwaters at the site are sourced from: mainstream events within Eastern Creek, as part of the Hawkesbury-Nepean River catchment, flowing from the east; and overland flow, directed from the upstream catchment to the west.

40. The application initially relied on a flood model to assess the impact of the 1% AEP, which is described in the Flood Review and Flood Evacuation Assessment by Greenview Consulting, dated 19 March 2019 (Exhibit F). This model was updated during the adjournment.

41. The flooding assessment now relied on is the Flood Assessment and Flood Emergency Response Plan (FERP), prepared by Martens, dated February 2023 (Exhibit K). Both flood models are informed by Council’s Tuflow model and flood study, which is a (Eastern Creek) catchment level assessment, and survey data from SurveyPlus, dated 2017.

42. The model relied on by the application assesses the mainstream flooding at 1% AEP. Dr Martens considers that Tuflow modelling of the overland flood component is not required due to this event being subsumed by the mainstream flooding and its general low velocity. This is disputed by Mr Almoil who references the FDM as requiring assessment of all sources of flooding, and that the overland flooding is not necessarily always coincident with the mainstream flood event. The FDM provides policy guidance to assess and manage risk on flood prone lands.

43. The application relies on a DRAINS model to assess overland flooding over a 2.5 ha catchment area, although it is now accepted that the catchment area is likely to be 8 ha. Water quality modelling, such as by a MUSIC model, does not support the application, although it relies on sediment control measures such as the mesh/gravel inlet filter and filter beds in a bioretention basin beneath the carpark.

44. It is the contention of Mr Almoil that the applicant has not provided the relevant data files generated from the most recent flood model in a timely manner, and therefore he is unable to properly assess the accuracy of the most recent model results. His concerns raised in the initial expert report, Exhibit 6, remain. He is concerned that the proposed fill for the car park area and retaining walls in a floodway are incompatible with the flood function and behaviour of the land, and inconsistent with Part A, Section 9 of the BDCP.

45. Mr O’Gorman-Hughes submitted that this level of detail was provided after the most recent expert conference, being less than one working day before resumption of the hearing. I consider it unacceptable that the applicant expressly expects the Council officer to review this data over the weekend before the hearing, particularly when the hearing had been adjourned for an extensive time, providing adequate opportunity for the experts to conference and address this issue.

46. The consequence is that the supplementary expert report (Exhibit 12) is of little benefit to the Court, as Mr Almoil has not had sufficient time to consider the amended model results and he refers back to the original expert report (Exhibit 6).

47. A key issue in dispute between the experts is whether the flood mitigation structures, including the swale and (filled) elevated carpark area that rely on ground levels that are not approved are sufficiently accurate to assess the likely flood impact across the site and within the hydraulically connected watercourse.

48. I accept the opinion of Mr Almoil that the applicant has not provided sufficient information, in a timely manner, to assess the likely flood impact on and adjoining the site, as a consequence of the proposed development. There is insufficient information in evidence to assess the likely impact to the site and watercourse from the proposed development, and there is no certainty that the results derived from the flood model are sufficiently accurate to represent flood impacts. It is accepted that a mainstream flood event will be more significant in volume, however without proper consideration of the cumulative effect of overland flooding on the site, I remain uncertain whether the model presents an accurate representation of the flood affectation across the site or afflux resulting from the proposed development.

36. It has not been demonstrated to my satisfaction that the swale, as designed, is capable of accepting the directed flow or that the watercourse is capable of receiving waters directed by the swale, without causing adverse offsite impact to the watercourse. I am not satisfied the objectives of cl 7.3(1) or requirements of 7.3(4) of the BLEP are addressed, pursuant to 4.15(1)(a)(i) of the EPA Act. There is insufficient information to be satisfied that cl 7.5(d) is addressed.

37. Based on my merit assessment of the application, I am not satisfied that the objectives (b) and (d) of cl 5.21 of the BLEP have been addressed.

38. Part A, Section 9 of the BDCP relates to development on flood prone land, and therefore is relevant in consideration of the application. Based on the evidence before the Court, I am not satisfied that the aims or objectives of Section 9.1 of the BDCP are addressed. There is insufficient evidence to be satisfied that the proposed development has reduced the impact of flooding and flood liability or is compatible with the flood hazard of the site.

39. The requirements of Sections 9.4.1 and 9.4.2 require consideration of the impact of filling of land in flood prone areas. There is insufficient evidence to assess the effectiveness of the proposed flood mitigation measures, specifically the filling of the carpark area and swale. The flood model does not sufficiently demonstrate that the proposed filling of the land will not pose adverse impact to adjoining properties or to the watercourse. The capacity of the swale and watercourse to accept overland flow directed to this location is not sufficiently demonstrated, without causing adverse impact.

Risk to life

53. Council, and their expert Mr Almoil contend that the site is unsuitable as a place of worship, due to the potential risk to human life during a flood event. The increase in number of persons on the site, and their ability to evacuate safely and in a timely manner is considered unacceptable.

54. The experts disagree as to the potential risk to persons on the site from flood events that will inundate the site and the likelihood that worshippers can appropriately respond in the event of an evacuation. With regards to evacuation, the issue in dispute relates to the ability of worshippers on the site to leave in a timely and safe manner, primarily by vehicle along Carnarvon Road.

55. The application relies on the FERP (Exhibit K) and PoM (Exhibit Q) to manage the response in the event of a flood. The application relies primarily on the evacuation of persons from the site in the event of a flood, although has provided a floor level of the building above the 1% AEP. It is accepted that the building and carpark would be elevated above a PMF event (estimated at 16.34 m AHD).

56. The FERP relies on an evacuation route via Carnarvon Road, until a future road is constructed connecting Grange Ave with South Street. Dr Martens explained that shelter in place is also a feasible option in a local flood event, such as the backing up of Eastern Creek, because it would last only a few hours. However, in the event of flooding of the Hawkesbury-Nepean River, which has a more regional extent, this could last days to weeks, and therefore shelter in place is not reasonable. The experts agree that flood evacuation is not required in an isolated overland flow flood event due to its concentration to the rear of the property.

57. Mr Almoil does not accept that shelter in place is a reasonable option or that the proposed evacuation route described in the FERP is safe due to the route not ‘rising’ and its reliance on future access through land not yet constructed. Carnarvon Road becomes impassable for vehicles within approximately 65 minutes of a warning of flooding issued for Eastern Creek.

58. Dr Martens assumes that persons on the site will have sufficient warning to either not attend the site in the event of a flood that could restrict access or to leave safely if already on the site.

59. It is accepted that there are parts of Carnarvon Road (low point of 15.17 m AHD) and Grange Ave where it crosses Bells Creek (that has manually operated flood gates) below the 1% AEP. Therefore, these roads are likely to be flooded and impassable by a vehicle before the site becomes flooded. Carnarvon Road is likely to be flooded (and impassable) in much more frequent flood events, such as the 5-10% AEP.

60. Based on my consideration of the evidence, I am not satisfied the application has sufficiently considered or addressed the risk to life in the event of a flood. The proposed immediate evacuation route is via Carnarvon Road, which becomes impassable in a relatively short time from the alert. It is proposed that up to 60 persons could be on the site (as described in the PoM), requiring a substantial number of cars to leave in a relatively short time frame. If flood warnings issued by the Bureau of Meteorology and State Emergency Services are not closely monitored, people on the site may miss their window of opportunity to safely leave. This raises the possibility that people will take unnecessary risks, particularly those that are unfamiliar with the dangers of driving through flooded waters or unwilling to shelter in place.

61. It cannot be certain that a flood event will occur at a time when worshippers are not otherwise occupied and attentive to the risk. The flooding at the low point of Carnarvon Road or Grange Road is not visible from the site, and therefore people will not necessarily know it is unsafe to evacuate. Persons on the site would not be able to distinguish a local from a regional flood event, and therefore may risk leaving the site when it is unsafe so as not to be trapped for an extended period.

62. Based on my merit assessment of the application, I am not satisfied the objectives (a) and (d) of cl 5.21 of the BLEP are addressed. The proposed use of the land as a place of worship has not been demonstrated to minimise the risk to persons and safe evacuation/occupation has not been demonstrated.

63. In this instance, the reliance on a private evacuation plan is not consistent with the FDM. There is potential for the plan to fail due to an assumption that people can distinguish between flood events and respond accordingly.

64. The burden of proof lies with the applicant to demonstrate that persons on the site can be protected in the event of flooding and that appropriate measures have been adopted to mitigate the risk to life (and property). This has not been demonstrated to the satisfaction of the Court.

Consideration of s 4.15(1) of the EPA

65. In consideration of the documents that support the application and evidence of the experts, I consider that the requirements of s 4.15(1) of the EPA Act have not been addressed.

66. I find that the relevant provisions of the BDCP in Part A, Section 9 are not sufficiently addressed, pursuant to s 4.15(1)(a)(iii) of the EPA Act.

67. The relevant requirements of cll 7.3 and 7.5 of the BLEP have not been sufficiently addressed, pursuant to s 4.15(1)(a)(i) of the EPA Act. The merit assessment considers the objectives of cl 5.21 of the BLEP are not satisfied.

68. Based on my assessment of the potential risk to life resulting from the proposed development, I am not satisfied the proposed use as a place of worship is suitable for the site, pursuant to s 4.15(1)(c) of the EPA Act.

69. It has not been demonstrated that the proposed development will not cause adverse environmental impact, pursuant to s 4.15(1)(b) of the EPA Act. There is insufficient information to assess the potential for adverse impact to the site and offsite, resulting from the proposed (stormwater and) flood mitigation measures.

70. I am not satisfied that the proposed development is in the public interest, pursuant to s 4.15(1)(e) of the EPA Act, based on the potential for increased risk to life and environmental impact.

Conclusion

71. The amended application has been assessed, based on the evidence before the Court, including the application’s (amended) supporting plans, documents and expert reports.

72. After consideration of the application, as amended, I am not satisfied that Development Application DA-19-00438 sufficiently addresses the relevant jurisdictional and merit assessment requirements, established in s 4.15(1) of the EPA Act. The application has not demonstrated that the site is suitable for the proposed development, due to an unacceptable risk to life; and there is potential for adverse environmental impact.

73. The development consent for DA-19-00438 is determined as refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

74. The Court notes that:

1. The Blacktown City Council, as the relevant consent authority has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the amendment of the application DA-19-00438.

2. That the applicant has filed and tendered with the Court the relevant amended documents.

75. Consequently, the orders of the Court are as follows:

1. The appeal is dismissed.

2. Development consent for Development Application DA-19-00438 seeking change of use of an existing residential dwelling to a place of worship, raising of an existing building, construction of a raised carpark and associated works on Lot 190 DP 633188, also known as 170 Grange Avenue, Schofields is refused.

3. All exhibits are returned, except Exhibits F, K and 10.

Sarah Bish

Commissioner of the Court

**********

Decision last updated: 30 August 2023