Cohesive Planning v Inner West Council

[2023] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cohesive Planning v Inner West Council [2023] NSWLEC 1047

Hearing dates:

19 January 2023

Date of orders:

07 February 2023

Decision date:

07 February 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend the application to rely on amended plans listed in condition 1 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. 2022/0019 for the demolition of the existing dwelling and construction of a dual occupancy development, at 75 Heighway Avenue, Croydon, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(4) The exhibits, other than Exhibits 1 and B, are returned.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy development – whether a dual occupancy development is compatible with the flood hazard of the land

Legislation Cited:

Ashfield Local Environmental Plan 2013, cl 5.21

Inner West Local Environmental Plan 2022, cll 1.8A, 5.21

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34AA

Category:

Principal judgment

Parties:

Cohesive Planning (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
D. Loether (Solicitor) (Applicant)
R. McCulloch (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2022/252587

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2022/0019 for the demolition of the existing dwelling and construction of a dual occupancy development (the proposal) at 75 Heighway Avenue, Croydon (the site), by Inner West Council (the Council).

2. The appeal was subject to conciliation on 19 January 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

Issues

3. The Council contends that a dual occupancy development is not compatible with the flood hazard of the land, pursuant to cl 5.21 of the Ashfield Local Environmental Plan 2013 (LEP 2013). Intensification of the site will result in an unacceptable risk to life and property due to flooding.

The site and its context

4. The site is on the north-eastern side of Heighway Avenue, between Edwin Street and Frederick Street. The site is flat. The railway corridor is at the rear of the site, and the railway is raised on an embankment.

5. The site has an area of 573.4m² and contains a single dwelling.

6. The dwellings in the vicinity of the site are predominately Federation era modest cottages, many with alterations and additions, including hard stands and carports in the front setback.

Background and the proposal

7. During the conciliation phase, the parties agreed on amendments to the architectural plans that resolved the Council’s planning contention to the Council’s satisfaction. Those amended plans were filed on 27 January 2023.

8. The updated conditions of consent were filed on 31 January 2023.

9. The proposal is for an attached dual occupancy development, consisting of two two-storey dwellings and a central hard stand area in the front setback with parking for one vehicle per dwelling.

Planning framework

10. The Inner West Local Environmental Plan 2022 (LEP 2022) commenced after the application was lodged and contains a savings provision at cl 1.8A for applications lodged but not yet determined. Dual occupancy development is permissible in the R2 zone and cl 5.21 is in the same terms under LEP 2022.

11. The site is zoned R2 low density residential pursuant to LEP 2013.

12. Clause 5.21 of LEP 2013 is in the following terms:

(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.

Expert evidence

13. The Applicant relied on the expert evidence of Terry Harvey (flooding) and Glenn Apps (planning). The Council relied on the expert evidence of Joe Bertacco (flooding) and Brett Brown (planning).

Flooding

Evidence

14. The flooding experts agreed that the Flood Planning Level (FPL) (1% AEP plus 0.5m freeboard) for the site is 14.8 AHD. The finished floor level (FFL) of the ground floor of the proposal is at RL14.8.

15. The flooding experts agreed that the hardstand for parking in the front setback of the proposal is below the FPL and that this is acceptable.

16. The flooding experts agreed that the site is subject to high hazard flows during flooding. They agreed that the flood function and behaviour are maintained with no loss of storage and no adverse flood impacts in terms of flood levels or velocities. They agreed that the proposal will not adversely affect flood behaviour or detrimentally increase the flood affectation of other properties.

17. The flooding experts disagreed on whether two dwellings on the site is acceptable.

18. According to Mr Bertacco, the nature of the flooding at this location, having a Probable Maximum Flood level of 3m above the 1:100 flood year level, means that the occupants of the development may be caught unprepared and will have limited opportunity to evacuate the site in case of an emergency, increasing the level of risk. The increased density on the site because of the doubling of the population or density on the site will result in more people in a high hazard situation increasing the risk to life in the event of a flood. The risk can be reduced by not increasing the population in the area.

19. In Mr Bertacco’s view, the situation in Heighway Avenue is unique because the rail embankment is a physical barrier to the dispersion of water in the event of a flood. Water will rapidly rise from a depth of 1.4m to 4.7m.

20. Mr Bertacco agreed that an occupant of the development could seek shelter within the development because the first-floor accommodation provides refuge. He noted that the Flood Plan Development Manual discourages occupants sheltering-in-place in the event of a flood.

21. According to Mr Harvey, increasing the population on the site does not materially raise risks compared to a lower density development because the ground floor of the proposal is a safe refuge for flood events significantly larger than the 1% AEP event and would rarely be inundated. The requirement to shelter-in-place would also be a very rare event. The potential for future damage to the dwellings is addressed by the design of the proposal, which is able to withstand the forces from flood flows, unlike the existing dwelling on the site.

22. The Applicant relies on a Flood Assessment and Emergency Response Plan (FERP) prepared by Martens & Associates Pty Ltd dated December 2022 (Ex E).

Consideration

23. I accept the agreements of the flooding experts that the proposal will not adversely affect flood behaviour or detrimentally increase the flood affectation of other properties.

24. I do not accept that the population on the site will necessarily be doubled by the proposal when compared to a development for a single-family dwelling. Dual occupancy development is a permissible use on the site and the proposal complies with the development standards and controls that apply to the site and determine the building envelope. The density on the site is determined by the FSR development standard of 0.7:1, and the proposal complies with the standard with a FSR of 0.57:1. The proposal is for two smaller dwellings, instead of one larger dwelling.

25. The proposal responds to the flood risk of the site by locating the ground floor FFL at the FPL and providing for refuge and storage above the flood level.

26. I am satisfied that the proposal meets the objectives of cl 5.21(1) of LEP 2013 and is compatible with the flood function and behaviour on the land, and will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, for the following reasons:

1. The proposal has acceptable offsite flood impacts and has been designed such that there are no changes to flood conveyance or flood impacts at the site or surrounding properties.

2. The ground floor FFL of the proposal is above the FPL and significantly higher when compared to the FFL of the existing dwelling. The first floor FFL is appropriate for a shelter-in-place flood emergency response strategy.

3. The proposal incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood by providing for a shelter-in-place strategy where residents can take refuge in floods up to and including the PMF event. The FERP procedures ensure residents are prepared in the event of a flood.

4. The proposal is constructed from flood compatible materials up to the PMF level. The structure of the proposal is required to withstand the forces of flooding, debris impact, and buoyancy up to and including the PMF. All electrical services will be placed above the FPL or waterproofed.

5. The proposal is supported by a FERP.

6. The proposal improves flood safety compared to the existing development on the site.

Disputed conditions of consent

27. The Applicant disputes a condition of consent proposed by the Council. Condition 36 is in the following terms:

“Project Arborist Certification

Prior to the issue of any Occupation Certificate, the Principal Certifier is to be provided with certification from the project arborist that landscaping has been installed in accordance with the approved landscape plan and that the requirements of the conditions of consent related to the landscape plan and the role of the project arborist have been complied with.”

28. The Applicant submits:

“The Applicant objects to this condition of consent.

The Principal Certifier cannot issue an occupation certificate unless they are satisfied that compliance with all approved plans and conditions of consent has been achieved.

The Applicant submits that it is unreasonable to require separate certification from the project arborist for compliance in circumstances where the Principal Certifier must also satisfy themselves that landscaping has been installed in accordance with the approved landscape plan and the requirements of these conditions of consent.”

29. The Council submits:

“While it is a certifier’s task to check off compliance with all relevant conditions prior to OC, it is Council’s experience that most certifiers are not qualified to know whether landscaping requirements have been fully met. In this case, where landscaping is proposed within Council land as a condition of consent, compliance is of even greater importance.

The Council requests inclusion of this condition.”

30. I accept the Council’s submission.

Conclusion

31. I accept the agreement of the planning experts that the amended plans filed on 27 January 2023 address the planning contentions raised by the Council in the Statement of Facts and Contentions (Ex 1).

32. Having considered the matters under cl 5.21(3) of LEP 2013 regarding flood planning, I am satisfied that the proposal meets the objectives of the clause and the requirements of subcl (2).

Orders

33. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the amended architectural drawings listed in condition 1 of the Conditions of Consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. 2022/0019 for the demolition of the existing dwelling and construction of a dual occupancy development, at 75 Heighway Avenue, Croydon, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

4. The exhibits, other than Exhibits 1 and B, are returned.

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 07 February 2023