Carantinos M v Gosford City Council

[2004] NSWLEC 150

Land and Environment Court

of New South Wales

CITATION:	Carantinos M v Gosford City Council [2004] NSWLEC 150
PARTIES:	APPLICANT Michael Carantinos RESPONDENT Gosford City Council
FILE NUMBER(S):	11275 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- SEPP 5 Flood prone land flood evacuation plan deferred commencement suitability of site for aged persons development
LEGISLATION CITED:	Environmental Planning and Assessment Act, 1979 Gosford Planning Scheme Ordinance State Environmental Planning Policy No 5
CASES CITED:
DATES OF HEARING:	04/03/04-05/03/04
EX TEMPORE JUDGMENT DATE :	03/05/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor SOLICITOR Storey and Gough RESPONDENT Mr A J Thompson, barrister SOLICITOR P J Donnellan & Co

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11275 of 2003 Murrell C 5 March 2004

Michael Carantinos
Applicant

v Gosford City Council
Respondent Judgment

1. This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Gosford City Council’s refusal of a development application on the north-eastern corner of Barralong Road and Lingi Streets, Erina.

2. The subject site is 1,300 m² and it is zoned under the Gosford Planning Scheme Ordinance as zone 9(a), Restricted Development Flood Prone Land.

3. The objective of the zone is to ensure that buildings for residential use on land in the zone identified as flood prone are appropriately located and constructed. Development that needs consent is for the purposes of drainage, dwelling houses, flood mitigation works, utility installations, everything else being prohibited in that zone.

4. The development application relies on the provisions of State Environmental Planning Policy 5, that is, Housing for Aged and Disabled Persons. The provisions of SEPP 5 allow for such developments where the purpose of the zone in the council’s Local Environmental Plan, that is, the Gosford PSO in this instance, where urban development and residential uses are permissible.

5. Schedule 1 of the SEPP 5 does provide a list whereby environmentally sensitive land cannot be used for the purposes of SEPP5 developments and in that regard when the matter was heard during these proceedings it was also agreed that the provisions of Sch 1 do not apply to the subject land. Schedule 1 includes uses such as environmentally sensitive land, that is: a floodway, high flooding hazard or natural hazard.

6. It has been agreed between the experts who assisted the Court in providing a number of joint statements that the subject land is not high hazard and it is one that is within a flood plain and subject to inundation during the one percent flood. The council has a flood plain management plan for the area known as the Erina Creek Flood Plain Management Plan. This document envisaged the construction of a levy and this has been constructed around Erina Creek such that the flooding of the subject site and its immediate surrounds not from the creek itself but in fact represents localised flooding.

7. The Flood Plain Management Plan also contemplated that land would be filled and therefore this is not a concern of the council that the subject land has been filled as contemplated nor that this would cause adverse impacts on surrounding lands or development.

8. The issue in these proceedings has boiled down to the suitability of the subject land for aged persons development and the inconvenience that may be created by a development on such land. SEPP 5 developments are ones that are more sensitive and therefore the issue of flooding is one that needs to be seriously addressed. SEPP 5 developments have been permitted in other flood prone areas althoughnot within floodways and the site is not in a floodway..

9 . In terms of the evidence to the Court of the subject site, approval has already been granted for it to be filled to a level of 3 m AHD. The 1% flood is 2.7 m. The subject land has been filled above same and it is proposed that the first floor level of the dwellings on the subject site be 3.3 m therefore providing the necessary free board of 500 mm under the State Government’s Flood Manual .

10 . The Court heard evidence from Mr Fitzgerald who is a member of the State Emergency Services (SES), and he is the Deputy Controller of the Gosford unit and has been with the SES since 1994. He assisted the Court in what he considered would be reasonable in terms of requirements for a development such as this.

11 . He is of the opinion that people may be anxious in terms of when flood waters rise. However, his evidence to the Court is that one could walk out in the 1% flood to Barralong Road and in fact in a PMF, which is the one in a million year flood in this instance, and that the first floor level, the upper terrace of one of the units would provide a safe refuge for the residents and the occupants of the subject development.

12 . He explained to the Court the evacuation procedures and he also indicated that given the duration of the floods which was provided to the Court in a joint expert statement given the relatively short duration of the flood events even the PMF event of some seven and a half hours in total, that it would be preferable for occupants of the subject development to remain in situ, that is, to take refuge on the terrace area that has been provided on the upper level which is well above the flood levels of the one in 200 year flood and also above the PMF flood.

13 . It was submitted on behalf of the council that the Court before granting approval would need to be satisfied that an evacuation plan is in place to provide certainty and because of the nature of the development being an aged persons development. Council also submitted that the site is not appropriate given the sensitive nature of SEPP 5 developments.

14 . Having considered all the evidence to the Court, including the evidence of Mr Fitzgerald and the expert engineers who greatly assisted the Court, I am satisfied that the subject site is appropriate for the proposed development and the flood proneness of the land being no hazard should not warrant refusal of the development application.

15 . Based on the evidence to the Court the flood inconvenience is one that is of a relatively short duration and the evacuation plan should be one that according to Mr Fitzgerald people should remain on site and take safe refuge in the common area now provided on the plan.

16 . The proposed development was accompanied by a statement of environmental effects and the provisions of State vironmental Planning Policy . With respect to access to various services it was considered appropriate and indeed none of the design standards are contested by the council. The proposal complies in terms of the standards required in SEPP 5, that is, with respect to the amount of landscaping. The landscaped area is some 550 or so m ² and the requirement of SEPP 5 for the subject site would be 280 m ^2.

17 . The parking provision is for 8 vehicles which is required by SEPP 5. The evidence is that the is availability of visitor parking in the street.

18 . The floor space ratio of the proposed development is below the SEPP 5 provision of 0.5:1 being 0.41:1.

19 . In terms of as I stated access to services including transport to facilities, medical and shopping and otherwise, the proposed development satisfies the requirements and therefore in terms of relevant clauses of SEPP 5 the proposed development has been assessed as satisfactory and indeed council has not raised these as matters that would warrant refusal of the application.

20 . It is noted that when the application was originally assessed that the issue of the flooding and the degree of hazard was one that had not been agreed to or conferred with in terms of the experts. These proceedings have provided the opportunity for the experts to confer and I do thank the experts in that regard, they have greatly assisted the Court and they have certainly crystallised what was the significant issue in these proceedings.

21 . I agree with the council that in terms of a SEPP 5 development given that it is of a more sensitive nature it is important that an evacuation plan be in place prior to commencement of any development and as such a deferred commencement is imposed on the development so that that plan is formulated and proved by the relevant authorities or in consultation with the relevant bodies such as the SES and council to ensure that any eventual outcome in terms of the plans provides for any requirements of the SES.

22 . Council has also imposed a number of conditions which are appropriate to the development and the applicant is prepared to accept same. One in particular which is also tied up with the evacuation plan would be condition 29 requiring safe pedestrian access to Barralong Road for the residents. It is noted that the proposed plans also show materials and finishes for the subject development.

23 . There is a concept landscape plan provided. However, there is also a condition which requires a detailed landscape plan with appropriate expertise to be provided. Given that a deferred commencement is required for the evacuation plan in order for council to be satisfied the landscape plan should also be to the approval of the council.

24 . A condition has been proposed to ensure that buyers are aware of the fact that the subject site is located in a flood prone area and that relevant flood markers be on site so that people are conscious and aware of the affectation of flooding in the area.

25 . The area is described as one that is mixed. However, this particular proposal will relate to the residential area to the north between the subject site and the creek and it will fit in with the character of the area in that regard. Barralong Street itself is one that is made up of semi-industrial commercial developments. Such type of development is not permissible on the subject land. The 9A land only allows for residential developments in appropriate locations in terms of the objective of that zone. The land has been appropriately filled as contemplated by the council for development in this area.

26 . I am satisfied in terms of the planning regime, that is council’s planning scheme ordinance and the SEPP 5 provisions and having regard to council’s Flood Plain Management Plan for the Erina Creek area and the provisions of the State Government’s Flood Management Manual 2001 that the development application warrants approval and in the Court’s assessment there is no reason why consent should not be granted, subject to a deferred commencement as referred to above.

27 . Therefore on the basis of my assessment the orders of the Court are:


1. The appeal in respect of the land on the corner of Barralong Road and Lingi Street, Erina is upheld.

2. The development application submitted to Gosford City Council and as amended for the development of an eight unit aged persons development is approved subject to a deferred commencement and the conditions contained in annexure A, (annexure A being those conditions generally agreed to between the parties).

3. The exhibits with the exception of Exhibit 7, B and K are returned.



________________________
J S Murrell
Commissioner of the Court

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