Borg v Blacktown City Council

[2024] NSWLEC 1425

Land and Environment Court

New South Wales

Medium Neutral Citation:

Borg v Blacktown City Council [2024] NSWLEC 1425

Hearing dates:

10 July 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The development application DA-23-00690 for alterations and additions to the existing dwelling at 45 Marsden Road, Angus, is determined by the grant of development consent subject to the conditions in Annexure A.

(3)   Exhibits A and C are retained, and exhibits B and 1-5 are returned.

Catchwords:

APPEAL – development application – alterations and additions to existing dwelling house to raise it by 3m – existing dwelling house in flood prone land

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34AA

Blacktown Local Environmental Plan 2015, cll 4.2A, 5.21

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9

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

Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023

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

Texts Cited:

Blacktown City Council WSUD Developer Handbook 2020

Blacktown Development Control Plan 2015

Blacktown City Council Scheduled Lands – Interim Policy, September 1994

Considering Flooding in Land Use Planning Guideline, Department of Planning, 14 July 2021

Eastern Creek Hydraulic Assessment Report 2014

Floodplain Development Manual, NSW Government, April 2005

Category:

Principal judgment

Parties:

Andrew Joseph Borg (First Applicant)
Christine Rose Borg (Second Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicants)
N Hammond (Respondent)

Solicitors:
McKees Legal Solutions (Applicants)
Bartier Perry (Respondent)

File Number(s):

2024/18280

Publication restriction:

No

Judgment

1. COMMISSIONER: To the west of Riverstone there is a small rural residential area known as Angus. At 45 Marsden Road, Angus, a single storey fibro dwelling has been on the land since prior to 1955. The area in which the site is located becomes flood storage in the event of a flood, such that the applicants, Mr and Mrs Borg, have had to evacuate numerous times over the last 5 years. In order to protect their home in the event of future floods, they seek development consent to raise the existing dwelling by 3m, to a finished floor level of 15.5m AHD. They lodged a development application seeking the same on 21 June 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicants lodged the present appeal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 9 July 2024. The parties did not reach an agreement and the appeal proceeded to a hearing forthwith pursuant to s 34AA(2)(b)(i).

3. The Council opposes the grant of development consent on the basis that the proposed development is incompatible with the site’s flood affectation. The Council does not raise any issues concerning streetscape character or urban form, and does not identify any town planning impacts of the proposed development.

4. The proposed development reduces the frequency of inundation of the dwelling by floodwaters, from it occurring approximately every 5 years on average, to it occurring approximately every 45 years on average. On this basis, and on the evidence of the town planners and flood engineers, I have reached the conclusion that development consent should be granted. My reasons are set out in more detail below.

The site and the locality

5. The site comprises Lots 45-52 and 154-161, Section 4, DP 1227, and is known as 45 Marsden Road, Angus. It is a regular shaped allotment with a site area of 4,645.15m², a primary frontage of 60.96m to Marsden Road and a frontage of 60.96m to Delaware Road.

6. The site comprises a single storey cottage, which is the subject of the proposed development, as well as a number of outbuildings including a shed containing a mezzanine and a raised shipping container. Vehicular access to the site is from Marsden Road via the existing driveway, and rear access to Delaware Road is also available through a recently constructed gate in the boundary fence. There is a slight fall in the site of approximately 0.8m from the Delaware Road frontage to Marsden Road.

7. The site is affected by overbank flooding from Eastern Creek, which is located to the east of the site, combined with high tailwater levels from the Hawkesbury River, which cause flood waters to back up onto the site.

8. The site is located in an area described as “Scheduled Lands”, which is an area comprised of small lots that include development constructed prior to a more recent understanding of land use capabilities, including flood impacts. The Scheduled Lands are the subject of a resolution by the Council on 7 September 1994 for an interim policy on development, called the Scheduled Lands Interim Policy (Ex 4, Tab 11). The entry for the subject land states that the dwelling on the site “appears to have legal status”. The Scheduled Lands Interim Policy states that for a dwelling that has legal status, rebuilding or extensions will be considered on merit.

9. The immediate locality is semi-rural in character and includes residential development in the form of single detached dwellings, as well as properties used for storage and livestock. Adjoining the site to the north, east and west are detached dwellings which are typically single storey, with the exception of 37 Marsden Road to the south which contains a two-storey detached dwelling house. Outside of the areas cleared for built form, the area is also characterised by the presence of native vegetation and mature trees, which become more dense towards Eastern Creek.

The flood levels on the site

10. The flood levels on the site are derived from the Eastern Creek Hydraulic Assessment Report 2014 (EC Flood Study). The site is flood prone, being affected by the 1% annual exceedance probability (AEP) flooding. The EC Flood Study classifies the site as within a flood storage area.

11. The ground levels immediately outside the dwelling are between 12.27m and 12.43m AHD with ground levels for the site varying between 12.01m and 12.81m AHD.

12. The 1% AEP flood level is 17.3m AHD, which results in flood depths on the site of 4.5-5.3m. The peak site probable maximum flood (PMF) level is 26.4m AHD, and PMF depths on the site are 13.6-14.4m.

13. The flood planning level (FPL) is at 17.8m AHD, based on the 1% AEP flood level plus 500mm freeboard.

14. The flood engineers, whose evidence is discussed further below, summarise the flood levels and depths of the flood water at the site, in a table reproduced below and labelled Table 1 (Ex 3, p 3).

15. Therefore, the site is subject to deep flood waters, and is flood affected as frequently as between the 10% AEP and the 5% AEP flood events. It is agreed that the dwelling is located in the high flood risk precinct where the flood hazard is H6 in a 1% AEP event.

The planning framework

16. The site is zoned RU4 – Primary Production Small Lots pursuant to the Blacktown Local Environmental Plan 2015 (BLEP). Development for the purpose of dwelling houses is permissible with development consent in the zone. Flood mitigation works are also permissible with development consent, but in this instance the works are for the purpose of a dwelling house and I need not deal with the question as to whether the proposed development meets the definition of flood mitigation works as set out in the Dictionary to the BLEP.

17. Although it is not relevant to the present application, cl 4.2A of the BLEP imposes a development standard for the erection of a dwelling on land in the RU4 zone, which requires that development consent must not be granted to the erection of a dwelling on land in the RU4 zone within Area 2 of the Key Sites Map unless the land has an area no less than 10ha. The site does not meet this minimum lot size. However, the development is not for the erection of a dwelling house.

18. There is no height development standard that applies to the site, and the proposed development does not result in any additional floor space on the site.

19. Clause 5.21 of the BLEP, which concerns flood planning, applies to the site. The terms of cl 5.21 were amended by the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023. However, cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 applies such that the amendments made by the amending order do not apply to a development application lodged prior to its commencement on 10 November 2023. The applicable wording of cl 5.21 of the BLEP is therefore as follows:

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.

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5) In this clause—

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.

flood planning area has the same meaning as it has in the Floodplain Development Manual.

Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.

20. The site is located within a ‘floodway’ under to the Blacktown Development Control Plan 2015 (BDCP). Section 9 of Part A of the BDCP concerns development on flood prone land. It has the following aims and objectives:

“9.2 Aims and objectives

Council's primary aim in relation to the development of flood prone land is to reduce the impact of flooding and flood liability on individual owners and occupiers and to reduce private and public losses resulting from flooding by:

(a) Carrying out flood mitigation works subject to the availability of necessary flood data and funding

(b) Adopting a merit-based approach to all Development Applications

(c) Encouraging development and construction which is compatible with the identified flood hazard to ensure the safety of the development itself.

To achieve this, the objectives of this section are to:

(a) Define the flood standard

(b) Inform the community of Council's policy on the development and use of flood liable land

(c) Alert the community to the extent and hazard of flood liable land.

The above aim and objectives should be read in conjunction with the objectives of the NSW Government Policy.”

21. Section 9.4.1 of the BDCP Part A contains heads of consideration in relation to development on land designated as being within the floodway or flood fringe. It requires the Council to take into account the following:

“(a) Whether the proposed building materials are suitable

(b) Whether the buildings are to be sited in the optimum position to avoid flood waters and allow evacuation

(c) Whether proposed structures or the filling of land are likely to affect flood flows

(d) Whether consultation with other authorities is considered necessary (e.g. NSW Office of Water)

(e) The NSW Government Floodplain Development Manual 2005.”

22. The NSW Government Floodplain Development Manual 2005 is the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005 (FDM), also referred to in cl 5.21 of the BLEP.

23. Sections 9.4.2 and 9.4.3 of the BDCP Part A then set out the controls for development within the floodway and flood fringe respectively. Whilst the latter does not apply to the development, I replicate both sections here for completeness:

“9.4.2 Development within the floodway

In general, Council will not support development, including the filling of land, within the floodway due to its function as the main flowpath for flood waters once the main channel has overflowed and the possibility of a significant threat to life and property occurring in a major flood.

However, agriculture, cultivation and minor alterations to existing buildings may be permitted in the floodway with the consent of Council.

An application lodged for development in a floodway (other than agriculture, cultivation and minor alterations to existing buildings):

(a) Must be accompanied by a survey plan

(b) May be required to satisfactorily demonstrate that:

(i) The development will not increase flood hazard or damage to other properties or adversely affect them in any way, by the provision of a report from a professional civil engineer experienced in hydraulics

(ii) The building can withstand the force of flooding, by the provision of a detailed report from a professional structural engineer

(c) May be required to indicate that permanent fail-safe, maintenance-free measures are incorporated in the development to ensure the timely, orderly and safe evacuation of people from the area should a flood occur. In addition, it may also be necessary to demonstrate that the displacement of these people during times of flood will not significantly add to the overall community cost and community disruption caused by the flood

(d) May be required to indicate adequate flood proofing of the structure, which will reduce flood damage to the structure, to the satisfaction of Council.

The required information shall be supplied prior to the application being assessed and considered by Council.

9.4.3 Development within the flood fringe

In general, Council will approve development within the flood fringe subject to the following:

(a) An application for the erection of new buildings or the raising or rebuilding of existing buildings (other than buildings ancillary to the use of the land for agriculture and cultivation purposes, excluding poultry farming and pig keeping) must be accompanied by a survey plan

(b) Prior to determining the application, Council may require the submission of the details referred to under Section 9.4.2 above

(c) For residential buildings, habitable floor levels should be at a level at least 500mm above the designated flood level

(d) Floor levels, other than habitable floor levels, will be determined by Council on the basis of each individual case. For industrial and commercial buildings, the floor level should be at least 300mm above the designated flood level

(e) The maximum height between the natural ground level (i.e. ground level prior to any filling of the land) and the habitable floor level shall be 3m

(f) Where additions are proposed to an existing building which is located below the designated flood level, Council will generally permit additions to a maximum of 10% of the existing floor area. The finished floor level of such additions should be 500mm above the designated flood level, but Council will consider each application on its merits having regard for the proposed use of the additions, the existing levels and flood behaviour

(g) The rebuilding of existing buildings shall comply with (a) to (e) inclusive above

(h) Council will consider any application for the rezoning of flood prone land on its merits. Generally, Council will not support a Planning Proposal which, once development has occurred, would result in an increase in the potential for personal and/or property damage

(i) Where an application is made to Council for the subdivision of land creating additional lots, Council will only grant consent if it is satisfied that future development on that land could be undertaken in accordance with the provisions of this DCP in relation to development on flood prone land. Where subdivision is approved in industrial and commercial zones, the land must be filled to 300mm above the designated flood level. For subdivision in residential zones, Council will require land to be filled to 500mm above the designated flood level

(j) The filling of land, whether to permit the erection of buildings or otherwise, shall be to the satisfaction of Council's Development Services staff in addition to Council’s Investigation and Design staff. Applicants are advised that, in considering the acceptable habitable floor level, Council will have regard for the depth of filling above natural ground level and its stability, together with possible interference with the flow of flood waters

(k) Buildings are to be constructed with approved materials, resistant to damage by immersion by flood waters for prolonged periods, to the satisfaction of Council.”

24. The FDM contains the NSW Flood Prone Land Policy, and is a strategic management document to provide “councils with a framework for implementing the policy to achieve its primary objective”. The policy statement, contained at 1.1.1 of the FDM, describes the primary objective as follows:

“The primary objective of the policy is to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods, utilising ecologically positive methods wherever possible. That is:

□ a merit approach shall be adopted for all development decisions in the floodplain to take into account social, economic and ecological factors, as well as flooding considerations;

□ both mainstream and overland flooding shall be addressed, using the merit approach, in preparation and implementation by councils of strategically generated floodplain risk management plans;

□ the impact of flooding and flood liability on existing developed areas identified in floodplain risk management plans shall be reduced by flood mitigation works and measures, including on-going emergency management measures, the raising of houses where appropriate and by development controls; and

□ the potential for flood losses in all areas proposed for development or redevelopment shall be contained by the application of ecologically sensitive planning and development controls.”

25. The FDM is not a set of controls by which individual development applications are assessed, but concerns the implementation of the policy at various levels of government. It recognises “the importance of house raising as a floodplain risk management measure in existing developed areas” (p A-4). The details of managing flood risk through house raising is then set out in more detail in Appendix J, which includes the following at J 2.3:

“Avoidance of flood damage by house raising achieves the following three important objectives:

□ a reduction in personal loss;

□ a reduction in danger to personal safety and in the costs of servicing isolated people who remain in their homes to protect possessions; and

□ a reduction in stress and post-flood trauma.

In general, voluntary house raising is a suitable management measure only for low hazard areas of the floodplain. In high hazard areas, either physical means of protection, for example, levees, or voluntary purchase measures are required.”

The expert evidence

Town planning evidence

26. Expert opinion evidence concerning the town planning issues was given in a joint report prepared by Mr Glenn Apps, a town planner engaged by the applicants, and Ms Sophie Perry, a town planner engaged by the Council.

27. Mr Apps and Ms Perry agree that it is in the public interest to allow for lawful dwellings that are subject to inundation to be raised so as to reduce the impacts to those dwellings from flooding. Conversely, they agree that the public interest is not served by refusal of the application which would leave the dwelling subject to inundation during flood events exceeding the 1 in 10 year Average Recurrence Interval (ARI).

28. Mr Apps and Ms Perry agree that the dwelling is lawful, as there is evidence it was constructed prior to October 1955 and was in existence prior to there being any records kept in the Council’s development consent register.

29. Mr Apps and Ms Perry also agree that there are no impacts to trees as a result of the proposed development, and that plant and equipment can be stockpiled in a cleared grassed area located to the south of the driveway, without impacting any trees or shrubs on the land.

Flood engineering evidence

30. Expert opinion evidence on the flood risk was given by Mr Drew Bewsher, an engineer engaged by the applicants, and Mr Daniel Dhiacou, an engineer engaged by the Council.

31. Mr Bewsher and Mr Dhiacou agree that approval of the application with a finished floor level (FFL) of 15.5m AHD would decrease the overall flood risk to property. They reach this conclusion on the basis that the existing dwelling and its contents would be raised higher above flood waters and therefore flood damage would occur less frequently than at present. Table 1, above, indicates that, at present, inundation of the dwelling floor occurs approximately every 5 years on average. However, after the proposed raising, it would occur approximately every 45 years on average.

32. Mr Bewsher and Mr Dhiacou also agree that in the case of a flood affecting the site, occupants would need to evacuate by following SES orders. The site could potentially be cutoff by hazardous flood waters for many days, hence there is no option to safely shelter-in-place (SIP) in either the existing dwelling or the proposed raised dwelling (regardless of the adopted FFL). For that reason, Mr Bewsher and Mr Dhiacou disagree as to whether the risk to life is decreased. Whereas Mr Bewsher considers the raising of the dwelling to the proposed FFL would decrease the flood risk to life, Mr Dhiacou considers that there is uncertainty as to whether the flood risk to life would be decreased. His opinion is that this uncertainty is due to a potential “false sense of security” for occupants, who may be inclined to ignore any evacuation warnings and attempt to SIP. As such, Mr Dhiacou opines that the dwelling should be raised above the FPL, which is 17.8m AHD. Their evidence is considered in more detail below.

The Council’s position that development consent should be refused

33. The Council’s position is that development consent should be refused on the basis that the BDCP doesn’t permit development in the floodway, that the proposed development does not seek to achieve a floor level above the FPL, that house raising is not appropriate for dwellings in the high risk flood precinct, and that the Court cannot be satisfied of the matters in cl 5.21 of the BLEP.

34. Firstly, with respect to the BDCP, the Council submits that the starting point for section 9.4.2 of the BDCP Part A is that there is to be no development in the flood way. The Council acknowledges that there is a carve out for “agriculture, cultivation and minor alterations to existing buildings”, but submits that the proposed development goes beyond a minor alteration to the existing dwelling. The Council submits that, given the list of development types that are acceptable in the flood fringe area pursuant to section 9.4.3 of the BDCP Part A, it can be inferred that none of those types of developments are acceptable on land in a floodway, and that they similarly could not be considered minor. As one type of development that is acceptable in the flood fringe is house raising, the Council submits that it can therefore be inferred that house raising is not acceptable for dwellings on land in the floodway.

35. The Council then submits that, if house raising is considered, it should at least comply with the requirements of section 9.4.3 of the BDCP Part A for house raising in the flood fringe area. In particular, this includes, at (c), that “habitable floor levels should be at least 500mm above the designated flood level”. The “designated flood level” is defined in section 9.3 of the BDCP Part A as being the “level of the flood having an Average Recurrence Interval of 100 years”. In the context where the proposed development does not seek to place the new floor level at least 500mm above the designated flood level, the Council submits that it ought not be approved.

36. Whilst section 9.4.3 of the BDCP Part A also requires at (e) that the “maximum height between the natural ground level… and the habitable floor level shall be 3m”, the Council submits that this demonstrates that house raising is only suitable to areas in the flood fringe, where compliance with both (c) and (e) can be achieved.

37. Secondly, the Council relies upon the BDCP and the FDM to support its position that habitable floor levels are required to be above the FPL. In the FDM, in the policy provisions at 1.1.2, it states that “FPLs for typical residential development would generally be based around the 1% AEP flood event plus an appropriate freeboard (typically 0.5m)”. In addition, the Council relies upon the Blacktown City Council WSUD developer handbook, which, at section 15.3, sets design standards for minimum floor levels, and requires 0.5m above the 1% AEP flood level for areas affected by mainstream flooding for residential development outside growth centres (see section 15.3.2).

38. In circumstances where the proposed development does not seek to raise the habitable floor level above the FPL of 1% AEP flood event plus 0.5m, the Council says the development application should be refused.

39. Thirdly, the Council submits that, consistent with what is found in the BDCP, the FDM does not support house raising in the high risk flood precinct. The Council points out that the FDM makes it clear that “voluntary house raising is a suitable management measure only for low hazard areas of the floodplain” (see p J-4). However, it is agreed by Mr Dhiacou and Mr Bewsher that the dwelling is located in the high flood risk precinct where the flood hazard is H6 in a 1% AEP event. They agree that a H6 flood hazard is noted as “unsafe for vehicles and people. All building types considered vulnerable to failure”.

40. Fourthly, the Council says that, based on the evidence of Mr Dhiacou, the Court cannot be satisfied of the matters in cl 5.21(2) of the BLEP. In particular, the Council submits that the Court cannot be satisfied that, in accordance with cl 5.21(2)(b), the development “will not adversely affect the safe occupation and efficient evacuation of people”, in circumstances where Mr Dhiacou says that there is “no certainty as to whether the proposed raising will enable safe occupation and efficient evacuation, as there may be a greater likelihood of occupants ignoring evacuation directions and thereby a greater risk to life”. In addition, for the same reasons, the Council says that the Court cannot be satisfied that the proposed development “incorporates appropriate measures to manage risk to life in the event of a flood” as required by cl 5.21(2)(d). As cl 5.21 stipulates that development consent must not be granted unless the consent authority is satisfied of the matters in cl 5.21(2), the Council submits that there is no power for the Court to grant development consent in the circumstances.

The development is acceptable

41. The “development the subject of the development application”, for the purpose of the assessment required by s 4.15 of the EPA Act, is the raising of the existing dwelling by 3m and associated works. It also includes the cladding of the external walls, stairs to access the elevated dwelling, an elevated veranda where the existing outdoor terrace will be raised, and balustrades for the stairs, entry and veranda.

42. The dwelling is existing, and all the risks associated with locating a dwelling on flood prone land are existing. The parties agree that the proposed development reduces the risk of floodwaters entering the dwelling by the raising of the floor level. As such, the development to be assessed is a development which reduces the risk to life and property. In that context, the Council’s position on the development application is unreasonable and cannot be sustained. I reach this conclusion for the following reasons.

43. Firstly, contrary to the Council’s position, the BDCP does contemplate development in the floodway, but provides no controls with respect to the same. On this point, I accept the applicants’ submission that there is a void, or lacuna, in the BDCP with respect to controls for development in the floodway. As a result, there is no requirement in the BDCP for house raising in the floodway to achieve a habitable floor level above the FPL. It is clear that section 9.4.2 of Part A of the BDCP outlines three different scenarios: firstly, the general position that Council will not support development within the floodway; secondly, the specific exception for “agriculture, cultivation and minor alterations”; and thirdly, the requirements for applications for which those specific exceptions do not apply. This is clear by the use of the words “An application lodged for development in a floodway (other than agriculture, cultivation and minor alterations to existing buildings)”. The setting of requirements for applications for development in a floodway clearly demonstrates some development is anticipated by the BDCP. It is implicit, therefore, consistent with the applicants’ position, that such development is then assessed on its merits consistent with the objectives of Section 9.2 of BDCP Part A, and using the heads of consideration in Section 9.4.1.

44. I note also that the absence of the documents referred to in Section 9.4.2 has not been pressed by the Council as a reason for refusal of the development application, and Mr Dhiacou and Mr Bewsher have agreed that the structural engineering report and a Flood Emergency Response Plan can be dealt with by way of conditions of consent.

45. Further, it is inappropriate to apply the controls in Section 9.4.3 of the BDCP concerning house raising to the present development application, in circumstances where it cannot achieve compliance with both (c) and (e). Instead, the application is to be considered on its merits, consistent with the aims and objectives in Section 9.2, “to reduce the impact of flooding and flood liability on individual owners and occupiers and to reduce private and public losses resulting from flooding”, by, inter alia, “adopting a merit-based approach to all Development Applications”.

46. Secondly, considering the development application on its merits, the evidence is that the proposed development will reduce the risk to life and property. It will reduce the frequency of inundation of the dwelling by floodwaters, from it occurring approximately every 5 years on average, to it occurring approximately every 45 years on average. In the absence of controls in the BDCP with respect to house raising in a floodway, a merit consideration by reference to the reduction in risk brought about by the proposed development leads to the conclusion that the extent of house raising proposed is acceptable in the circumstances.

47. Contrary to the Council’s position, there is no evidence that the proposed development will increase risk to life. The evidence of Mr Dhiacou, taken at its highest, is that there is ‘uncertainty’ that it will reduce risk to life. That ‘uncertainty’ arises from the potential that there could be a “false sense of security for occupants, who may be inclined to ignore any evacuation warnings/directions” (Ex 3, p 6). If this occurred, Mr Dhiacou opines that this could create an increased risk to life. However, when comparing the pre and post-development risk to life, Mr Dhiacou reaches the conclusion that “I am uncertain as to whether the reduced likelihood to return to the dwelling to relocate goods is offset by the false sense of security and increased likelihood of occupants ignoring evacuation directions”, and reaches no opinion that there is actually an increased risk to life as a result of the proposed development in the comparative exercise. Instead, there is evidence that there is a decreased risk to life. I accept the evidence of Mr Bewsher, who opines that the approval of the application would decrease the risk of life, for the following reasons (Ex 3, pp 5-6):

“Currently, the task of relocating goods from the dwelling to prevent flood damage involves the occupants and others making frequent trips to and from the dwelling during the rising phase of flood waters. This exposes these people to safety dangers when driving through flood waters. This is an inherently dangerous activity which would not occur if the dwelling was raised.

Returning to the dwelling and wading through water to extract goods exposes those people to electrocution. This is also an inherently dangerous activity which would not occur if the dwelling was raised.

Whilst these safety risks have been experienced by the Applicants and their helpers in recent flood events, it is reasonable to assume that this risk exposure would continue to occur in future floods if the dwelling is not raised. Further, this risk exposure would also continue if the dwelling’s ownership changed.

Although not identified in the Contentions, the potential exists for occupants to take shelter within a raised dwelling as flood waters rise and then to become trapped and be unable to leave. In an extreme flood these persons would need to be rescued to avoid drowning. Whilst this danger exists, in my opinion it is much less likely to occur and involves much less risk than the safety benefits described [above].

For the occupants to shelter upstairs rather than evacuate they would need to ignore warnings and directions from the emergency services personnel (i.e. SES and police) to evacuate. The very severe flood threat to which this part of Angus is exposed is well recognised and it is inconceivable that warnings/directions to leave would not be given in a major flood.”

48. I also accept the agreed evidence of Mr Apps and Ms Perry that it is in the public interest to allow for lawful dwellings that are subject to inundation to be raised so as to reduce the impacts to those dwellings from flooding. I accept their agreed evidence that the public interest is not served by refusal of the application, which would leave the dwelling subject to inundation during flood events on average, once every 5 years.

49. Thirdly, I am satisfied of each of the matters in cl 5.21(2) of the BLEP. Specifically, I am satisfied that the development is “compatible with the flood function and behaviour on the land” (cl 5.21(2)(a)), as the evidence is that the proposed development maintains the site’s flood function as flood storage, and there will be no change to flood behaviour on the site. Similarly, I am satisfied that the proposed development will not impact flood behaviour in a manner that will adversely affect other properties (cl 5.21(2)(b)), on the basis of Mr Bewsher’s evidence that the raising of the dwelling will not adversely alter flow conveyance. Consistent with cl 5.21(2)(c), I am satisfied that the proposed development “will not adversely affect the safe occupation and efficient evacuation of people”, as it will improve safe occupation by the raising of the dwelling to a level that inundation will occur less frequently, and, based on the evidence of Mr Bewsher, it will facilitate efficient evacuation by the reduction in personal safety risks associated with travel to and from the site in a flood event to remove personal items. Further, there is agreement that the proposed development will not affect the capacity of existing evacuation routes for the surrounding area.

50. I accept the evidence of Mr Bewsher that, by its nature, the development includes measures which reduce the risk to life, consistent with cl 5.21(2)(d) of the BLEP, as the raising of the dwelling reduces the risk of inundation of the dwelling. In addition, the development is intended to operate with a Flood Emergency Response Plan, a draft of which is provided in support of the development application. Compliance with a Flood Emergency Response Plan, which is required by the conditions of consent, is an additional measure that will reduce the risk to life. Finally, consistent with cl 5.21(2)(e), I accept the agreed evidence of Mr Bewsher and Mr Dhiacou that there will be no adverse impacts on the environment as a result of the proposed development, and the proposed development will not “cause erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses”.

51. Further, based on the evidence of Mr Bewsher and Mr Dhiacou, I have considered the matters in cl 5.21(3), and there is nothing that arises in the consideration of those matters that warrants refusal of the development application, for the same reasons as those given in relation to cl 5.21(2) above.

52. Fourthly, as submitted by the applicants and consistent with the evidence of Mr Bewsher, the raising of dwellings is an acceptable measure in the FDM for the avoidance of flood damage. Whilst the FDM contemplates voluntary house raising as being only appropriate for low flood hazard areas, the options recommended in the FDM for high flood hazard areas are not available to the applicants. In that respect, I accept the evidence of Mr Bewsher that no other option is available to the applicants to protect their dwelling. His evidence is that whilst house raising is not usually undertaken in high hazard areas, this is because voluntary purchase or physical protection (e.g. levees) are preferred. As stated in the FDM at J2.3, “in high hazard areas, either physical means of protection, for example, levees, or voluntary purchase measures are required”. In the present circumstances, he points out that the Council has not purchased the property or placed it on a list for voluntary purchase, and physical protection is impractical due to the flood range. In those circumstances, Mr Bewsher opines that the Council has failed to “properly exercise its responsibilities to manage floodplain development in a manner which reduces flood risks” and has failed to consider “the hardship and dangers to which the existing and future occupants of the dwelling are exposed” (Ex 3, p.14), leaving house raising as the only option left for the applicants to protect their dwelling. Accordingly, I consider that the proposed development is appropriate in the circumstances, and, although the dwelling remains unsafe for SIP, the proposed development is nevertheless a reasonable development for reducing the “impact of flooding and flood liability on individual owners and occupiers of flood prone property”, consistent with the policy statement in the FDM (at p 1).

48. Finally, in the absence of a control in the BDCP requiring the raising of dwellings to a particular habitable level, it is inappropriate to impose the normal FPL as the sole measure of acceptability, particularly in the circumstances of the proposed development. Whilst the normal FPL is appropriate for new residential development and is the design measure established by the Blacktown City Council WSUD developer handbook, I accept the evidence of Mr Bewsher that the proposed development is acceptable notwithstanding that it doesn’t achieve the FPL. I accept his evidence that, where it is not practical to achieve the normal FPL in the finished floor level for a raised dwelling, a lower level of raising is acceptable provided the raising achieves an adequate reduction in flood risk. The extent of the proposed raising is reasonable (3m), does not raise any streetscape or town planning issues, and achieves an adequate reduction in the risk of flood waters inundating the dwelling. I accept Mr Bewsher’s opinion in this regard, which is as follows (Ex 3, p 9):

“The existing dwelling floor is inundated 20 times, on average, every 100 years. With the proposed FFL of 15.5mAHD, inundation of the floor would only occur approximately 2 times every 100 years. That is a tenfold reduction in inundation frequency which is a very significant improvement.

If the FFL was set at 17.8m AHD, the frequency of floor inundation would be reduced to one occasion, approximately, every 100 years. That’s a small improvement for which the benefits need to be assessed on merit having regard to any off-setting visual, amenity or other town planning issues.”

54. As such, the proposed development is acceptable notwithstanding that the finished floor level will not be at or above the FPL.

55. For all of the above reasons, I find that the proposed development reduces the risk to life and property, and is acceptable in the circumstances.

Undesirable precedent

56. The Council, in its public interest contention, asserts that the proposed development would set an undesirable precedent for development “that is not consistent with the adopted planning controls and objectives of [the BLEP and BDCP]”. In support of this, the evidence of Mr Dhiacou is that “approval of the proposed dwelling in its current form (i.e. FFL 2.3m below the FPL) would set an undesirable precedent and encourage other applicants to argue that they do not need to locate habitable floor levels at the FPL.”

57. However, contrary to what is asserted by the Council, neither the BLEP nor the BDCP require the raising of the proposed dwelling to achieve a habitable floor level at the FPL. The BLEP does not require the same, and there is no such control in the BDCP with respect to habitable floor levels for house raising in the floodway. Further, in circumstances where the Council has not managed floodplain development in a manner consistent with the FDM, which recommends voluntary purchase of dwellings in the high hazard area, the only option available to the applicants for the protection of property, is house raising. For the reasons expressed above, I have found that, in the circumstances, the extent of the proposed house raising is acceptable as it achieves an adequate reduction in the risk of flood waters inundating the dwelling.

58. I am therefore of the conclusion that the proposed development ought not to be refused on the basis that it could set an undesirable precedent. To do so would leave the dwelling subject to inundation, on average, once every five years. That, in itself, would create a poor precedent. In those circumstances, I accept the opinion of Mr Apps and Ms Perry that the public interest is not served by refusal of the application.

59. I also accept the agreed evidence of Mr Apps and Ms Perry that every development application is considered on its own merits and “the granting of consent to this proposal does not add weight to the possible approval of another application, where a consent authority would likewise need to consider the legal status of the dwelling and the merits of the proposal” (Ex 2, p 4).

60. Future applications for house raising will be required to be considered on their own merits, and hypothetical arguments that may be advanced by future applicants should not be a basis for refusal of a proposal that will reduce the risk of flood waters inundating the dwelling in the circumstances of the present application.

The outcome of the appeal

61. For the reasons set out above, the Council’s contention that the proposed development should be refused on the basis of the site’s flood risk is unreasonable and cannot be sustained. The proposed development reduces flood inundation into the dwelling from a frequency of once every 5 years, on average, to a frequency of once every 45 years. It is axiomatic that, as set out in my reasons above, this is consistent with the NSW Flood policy to reduce the risk to life and property.

62. The remaining contentions in the Statement of Facts and Contentions filed on 5 March 2024 have been resolved either by the provision of further information, by agreement on conditions of consent, or by the agreement of the experts. There are no other issues raised by the Council. In addition, the following jurisdictional matters are satisfied:

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential use, it is unlikely to be contaminated.

• The site is located in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. The Council raises no contention concerning any matters in the SEPP B&C. Based on the evidence of Mr Bewsher, the location of the site and the fact that the proposed development is confined to the raising of an existing dwelling, I have considered the matters in ss 6.6(1), 6.7(1), 6.8(1) and 6.9(1), and I am satisfied of the matters in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) of the SEPP B&C.

63. The development application should therefore be determined by the grant of consent, subject to conditions, which the parties have agreed upon.

64. The Court orders that:

1. The appeal is upheld.

2. The development application DA-23-00690 for alterations and additions to the existing dwelling at 45 Marsden Road, Angus, is determined by the grant of development consent subject to the conditions in Annexure A.

3. Exhibits A and C are retained, and exhibits B and 1-5 are returned.

J Gray

Commissioner of the Court

18280.24 (Annexure A)

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Decision last updated: 25 July 2024