David Crane & Associates Pty Limited v Sutherland Shire Council

[2007] NSWLEC 24

Land and Environment Court

of New South Wales

CITATION:

David Crane & Associates Pty Limited v Sutherland Shire Council [2007] NSWLEC 24

PARTIES:

APPLICANT
David Crane & Associates Pty Limited

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10521 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Change of Use, food shop classification, flooding, suitable location, public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING:

17/10/2006, 6/11/2006 and 30/11/2006

 
DATE OF JUDGMENT: 

23 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Tomasetti, barrister
Instructed by: Mr D. Balog
of D C Balog & Associates

RESPONDENT
Mr G. Green, solicitor
with Ms E. Ranken, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

Date : 23 January 2007

10521 of 2006 David Crane and Associates v Sutherland Shire Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for alterations to an existing building situated at 119 – 121 Parraweena Road, Caringbah, so as to permit its use as a food shop for the wholesaling and retailing of fruit, vegetables, groceries and smallgoods. It also included a cafe/delicatessen.

2 For the appeal, the issues are summarised as follows:

• whether the proposal is prohibited because it does not fall within the definition of a food shop under the Sutherland Shire Local Environmental Plan,
• whether the proposal meets the objectives of the 4a General Industrial zone,
• flooding risks,
• public interest.

3 In order to address these issues, the parties agreed to the appointment of Mr S Layman the Court appointed expert for planning and Mr D Bewsher as the Court appointed expert for flooding matters.

The site.

4 This site is described as Lot 1 in DP 532021. It is irregular in shape with a frontage of 46.876m to Parraweena Road and total area of 5530 sq m.

5 The site is virtually flat and is located at a low point in the landscape. It falls from a low point of RL 1.94 at the Parraweena Road frontage to RL 1.21 at the western end of the rear boundary where the site drains into an open grassed channel.

6 A variable width (approximately 6.5m) drainage easement, containing 2 x 1500mm diameter drainage pipes traverses the property, running diagonally from Parraweena Road to the rear open channel.

7 An existing single storey industrial building is located adjacent to the western boundary. It is setback approximately 15m from the front boundary. A 6m wide awning runs along the eastern side of the existing building.

8 The premises have previously been used as a garden centre, a gas supply shop and an air-conditioning shop with associated car parking.

The Proposal.

9 This application proposes alterations to the existing building to allow its use as a food shop. The development also includes provision of a cafe/delicatessen. The proposed upgraded building will comprise the cafe/delicatessen, associated kitchen/storage room, male and female amenities in the front portion of the building, the market floor area, food storage areas, preparation areas and cool room. In addition to the internal alterations, it is proposed to construct new entry/exit points.

10 The proposed opening hours of the market and cafe/deli are 6 a.m. to 8 p.m. on Monday to Sunday. Fruit and vegetable deliveries from the premises are to take place once a day, Monday to Friday before 12 p.m. Grocery deliveries are to be made at various times during the week, while smallgoods deliveries will take place one or twice a week. This involves 4-5 vans and a medium rigid truck making the deliveries.

11 It is proposed to remove the existing western crossing and provide a landscape area in this position. The existing parking areas are to remain and be refigured to provide approximately 50 spaces.

Planning controls.
i) Sutherland Shire Local Environmental Plan 2000. (SSLEP 2000). Under this LEP the site is zoned 4 (a) General Industrial. The objectives of this zone are:

• Appropriate forms of industrial development which will contribute to employment generation and the economic growth of the area.
• A range of non-industrial land uses which provide direct services to those industrial activities and their workforce.
• To provide for shop and business uses ancillary to a permitted industrial use and also provide for bulky goods retailing and food shops on appropriate sites.

12 Development that requires development consent includes:

• bulky goods retailing,
• business premises ancillary to another permissible use or to serve the needs of local industries,
• car parking,
• convenience stores,
• food shops,
• industry,
• shops ancillary to another permissible use or to serve the needs of local industries,
• warehouses.

13 Clause 49 of SSLEP 2000 sets a maximum height for a building in the industrial zone of 12 metres from the ground level to the highest point on the roof.

14 Clause 50 sets a maximum floor space ratio of 1:1 in the industrial zone.

15 Clause 52 of SSLEP 2000 states:

Regardless of the development control tables in this plan, a development control plan relating to land within the 4 (a) General Industrial zone may recommend restrictions on specific times development otherwise permitted on the land.

ii) Sutherland Shire Local Environmental Plan 2006

16 This LEP came into effect during the proceedings, being gazetted on 15 Nov 2006. It includes subject site the in the Employment zone, which allows food shops with development consent, similar to SSLEP 2000. However it contains a savings provisions in cl 7 (2) (b) as follows:

Any development application lodged before the commencement of this plan, but not finally determined before its commencement, is to be determined as if this plan had been exhibited under section 66 of the Act but had not been made.

iii) Development Control Plan for Industrial Development.

This DCP came into effect on 27 March 2001. The following objectives are stated in clause 2:

• The purpose of the Plan is to enable industrial development that:

a) has an attractive appearance to the street with provision for landscaping;
b) has adequate on-site parking area for manoeuvering of vehicles;
c) has a minimum adverse impact on surrounding non-industrial uses;
d) is functional and economically viable.

17 Clause 12 deals with landscape treatment.

18 Clause 15 deals with retailing from industrial zones and provides:

Objectives:

No retailing within industrial zones except for:
(a) Ancillary retailing which is an integral part of the operations of an industrial use;
(b) Retailing which serves daily convenience needs of the workforce in the locality;
(c) Bulky goods sales rooms or showrooms, with suitable access (refer Clause 2 bel ow).

Controls

1. The direct sale of goods to the public is to be limited to only an ancillary nature where it is supportive of the main function of the site. This may include service activities, the sale of spare parts or goods manufactured or processed on the site;
2. Bulky goods retailing means a building or place primarily used for the sale by retail for auction, or the hire or display, of goods or materials which are individually large in size, shape or weight as to require:
a) a large area for handling, storage or display; and
b) direct vehicular access to the site of building or place by members of the public, for the purpose of loading items into their vehicles after purchase, but does not include a building or place use for the sale of foodstuffs or clothing. Bulky goods retailing and food shops are prohibited on land in the 4 (a) General Industrial zone which adjoins land zoned 5 (c) Special Uses (Arterial Road) where direct vehicular access to the land in the 4 (a) zone is gained from the land zoned 5 (c). Each individual bulky goods retailer must have a minimum gross floor space of 1000 square metres.

19 Clause 16 deals with car parking and specifies the amount of car spaces required for various developments.

20 Clause 18 deals with loading and unloading requirements.

iv) Development Control plan for Car Parking

v) Development Control Plan for Advertising Structures and Signs
vi) Flood Risk Management Development Control Plan.

21 This plan came into effect to place local controls on the development of flood liable land to reduce the risk to life, property and the resultant costs. It responds to the provisions of the NSW Government’s Floodplain Management Manual (FMM), who stated objective is:

to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and reduce private and public losses resulting from floods, utilising ecologically positive methods where possible.

22 Section 1.2 provides:

To achieve this objective the FMM acknowledges a broad risk management hierarchy of:

• avoidance of flood risk,
• minimisation of flood risk using appropriate planning control; and
• flood risk mitigation.

Flood risk mitigation is the least preferred option, being costly and most likely to adversely affect the environment. Avoidance and minimisation of flood risk are the options most likely to be acceptable and are primarily reliant on land use planning and development control for implementation.

23 This DCP applies to all land below the Probable Maximum Flood (PMF) level in the Sutherland Shire. It contains the following relevant aims:

• Reduce the risk to human life and damage to property caused by flooding through controlling development on land affected by potential floods.
• Provide different guidelines, for the use and development of land subject to all potential floods in the floodplain, which reflect the probability of the flood occurring and the potential hazard within different areas.
• Apply a "merit-based approach" to all development decisions which takes account of social, economic and ecologically as well as flooding considerations.
• Deal equitably and consistently with applications for development on land affected by potential floods, in accordance with the principles contained in the FMM, issued by the NSW Government.

24 Section 2 of the DCP presents the criteria for determining applications. The stated procedure involves:

• firstly, identifying the land use category of the development (from Schedule 2);
• secondly, determine which floodplain and which part of that floodplain the land is located within (refer to Clause 2.3 and relevant flood risk mapping);
• then apply the controls outlined under Clause 2.4.

25 It identifies the different flood risk precincts, which includes:

High Flood Risk Precinct

This has been defined as the area of land below the 1% AEP flood and is either subject to a high hydraulic hazard or where there are significant evacuation difficulties.

Note . The high flood risk precinct is where high flood damages, potential risks to life, evacuation problems would be anticipated or development would significantly and adversely affect flood behaviour. Most development should be restricted in this precinct. In this precinct, there would be significant risk of flood damages without compliance with flood related building and planning controls.

26 Schedule 2 relevantly allows for Concessional Development on the following basis:

(b) In the case of other development:
(i) an addition to existing premises of not more than 10% of the floor which existed at the date of commencement of this DCP;
(ii) A change of use which does not increase flood risk having regard to property damage and personal safety;

27 In order to assess development applications, section 3.5 provides:

3.5 For large-scale developments, or developments in critical situations, particularly where an existing catchment baseline study is not available, a flood study using a fully dynamic one or two-dimensional computer model may be required. For smaller developments the existing flood study may be used if available and suitable (eg it contains sufficient local detail), or otherwise a flood study prepared in a manner consistent with the “Australian Rainfall and Runoff” publication, Council’s Stormwater Management Provisions and the Floodplain Management Manual, will be required..

Sutherland Shire Development Control Plan 2006 .

28 This DCP contains the detailed development controls contained in SSLEP 2000. Chapter 5 deals with Environmental Risks and Part 4 contains the controls for flood risk management. The merit consideration matters are similar to those in DCP 2000, with reference to the Floodplain Development Manual considerations. Also, the concessional development provisions are maintained.

The Evidence

29 In addition to the Court appointed expert evidence, other expert evidence was presented by:

• Mr A Celona, the applicant’s consulting engineer.
• Mr M George, the applicant’s consulting town planner;
• Mr N Ingham, the objector’s consulting town planner;

30 Detailed statements were also presented From Mr Canturi, company director for proposal. Also, Mr Casaccli owner of the property.

31 The first issue concerns the permissibility of the proposal in terms of the shop component. Insofar as food shops are allowed with consent on appropriate sites in the 4(a) General Industrial zone, it is on the basis the following definition:

Food shop; A building or place, the principal purpose of which is the preparation and selling of food and refreshments to people off the premises, whether or not the selling involves a drive-through service. (Explanatory note: a food shop may offer, but not as the primary use, some convenience shopping or consumption of food on the premises).

32 Mr Layman took a detailed assessment of the proposal, based on the Statement of Environmental Effects ( SEE) details. As the applicant contends that the proposal is for a food shop, Mr Layman does not support the proposal because he considers the dominant purpose of the proposal is for the sale of the raw ingredients of meat, fresh fruit and vegetables, for later preparation prior to consumption.

33 Mr Layman that the principal purpose does not involve the preparation of food because the area set aside for this is in the order of 204 square metres, as compared to the gross floor area of 1288 sq m. This represents an area of 16% attributed to preparation and 84% for display and sale purposes. Furthermore that;

"The 204 square metres of preparation area consists of space that would perform the same function as storage or unpacking areas. There is an additional 61 square metres of kitchen/storage area to the ancillary cafe/delicatessen component of the proposal. Otherwise there are no storage areas for goods prior to "preparation". That is there is no bulk storage areas as might be anticipated where preparation is the principal purpose.
In my view, the proposal is properly characterised as a shop, being retailing of fruit and vegetables, with ancillary restaurant in the form of a cafe. If the kitchen area alone is considered alone, the amount of preparation area relative to gross floor area is less than 5%."

34 According to Mr Ingham's assessment, the essential feature of a “ food shop" in the SSLEP 2000 is that it involves the sale of prepared food. He says that;

"… Effectively this means that food is prepared into a form of a meal which is to be consumed off the premises. Whilst most food items proposed to be sold from the subject site may form part of a meal, they are not food items prepared and incorporated into a meal on-site for subsequent off-site consumption. Accordingly the proposal cannot be characterised as a "food shop" but rather is a shop the purpose of selling items of fresh fruit to the general public and subsequent inclusion into a meal prepared off the site.

A perusal of the development application plans indicates that the predominant use proposed for the premises is a shop selling unprepared fresh food, essentially the same as a supermarket or retailer of fresh fruit and vegetables or other fresh produce. The proportion of sales and floor area devoted to the sale of prepared food is a minor ancillary component of the overall business and is certainly not "the principal purpose" as would be required if it were to be characterised as a "food shop". Accordingly the proposal does not fall within the definition of other "food shop" and is therefore are prohibited development."

35 Mr George however says that the use involves the preparation of food by way of washing, trimming, labelling, weighing and packaging, preparation of various packaged meals, making of fruit and vegetable juices for takeaway or in store consumption and preparation wholesale waters for delivery. Also that the incorporation of a cafe in the development is consistent with the definition which, according to the council's explanatory note, is intended to embrace secondary and ancillary sale and consumption of food prepared on the premises. Therefore the proposed development falls within the definition of "food shop" and is permissible with development consent.

36 Mr Canturi’s statement subsequently provided a list of the shop/food preparation arrangements, which includes:

(a) Food will be prepared on the site and sold to any customers primarily for them to take their purchases away rather than consume them on-site.
(b) Foodstuffs proposed to be sold will include cheeses, smallgoods, meat, fish, continental groceries, nuts, fruit and vegetables.
(c) To prepare lines of foodstuffs for sale will involve unpacking deliveries, re-packing, wrapping, trimming, cooking, juicing, cutting and arrangement of food for display purposes.
(d) The cheese will be cut into smaller pieces and wrapped.
(e) Smallgoods may be unpacked, unwrapped, sliced and displayed for sale.
(f) Meat will be delivered to site and will in many instances be hung, further butchered, prepared, cut, sliced prior to sale.
(g) Continental groceries will be unpacked, processed as required and stacked and placed on shelves or displayed otherwise ready for sale.
(h) Any fruit and vegetables will be prepared for display each day.

37 This issue was addressed in the joint planning conference by way of responses to a number of questions related to the LEP definitions and objectives. Both Mr Layman and Mr Ingham maintained their opinions that the proposal does not satisfy the LEP definition for a food shop, whereas Mr George considers it is.

38 In relation to the Zone 4(a) objectives, both Mr Layman and Mr Ingham do not consider that the proposal primarily provides direct services to industrial activities, although some workers daily convenience needs would be met. Against this Mr George says that the proposal provides direct services to the industrial workforce and activities.

39 In reviewing these disparate opinions, I am inclined to accept that of Mr Layman and Mr Ingham on the basis that whilst some food preparation may be undertaken, nevertheless the area set aside for this is relatively minor and does not represent the principal purpose. Instead it seems that the predominant use is for a shop selling unprepared fresh food, which is a prohibited use.

40 If this conclusion is wrong, such a "food shop" would be permitted with consent, subject to the provisions of the Zone 4 (a) General Industrial objectives, of which the following is relevant:

(c) To provide for shop and business uses ancillary to permitted industrial use and also provide for bulky goods retailing and food shops on appropriate sites.

41 Under these circumstances, any food shop should be located on an appropriate site. However the council submissions are that the subject site is inappropriate because of the degree of flooding and associated risks.

42 The planners also considered the planning implications of this flooding issue and both Mr Layman and Mr Ingham agreed that the site was inappropriate for the proposal having regard to a significant part of the subject site being classified “high hazard”. Against this, Mr George considered that the site was suitable for the proposal having regard to the existing building and history of retail use and flood characteristics.

43 The other substantive issue then concerns the flood liability and associated risks of using the site as proposed. For my assessment of this flooding issue, I rely on the provisions of the Flood Risk Management DCP, in the absence of any local "Floodplain Risk Management Plan" (FRMP). Both Mr Bewsher and Mr Celona referred to this control.

44 Mr Celona initially undertook a DRAINS stormwater drainage modelling analysis of the catchment area to assess both the hydrologic and hydraulic characteristics of the localised stormwater behaviour. This included the application of ILSAX modelling for the assessment of hydrological elements. A one-dimensional steady state hydraulic model, HEC-RAS was used to simulate a variety of flow and boundary conditions. This produced 12 cross-sections to enable assessment of flood liability.

45 Based on the various assumptions within this modelling process, Mr Celona found that during the design 100 year ARI flood event, parts of the land were within high hazard areas and the ground floor of the existing building will be approximately 0.5m under water.

46 This flooding assessment was reviewed by Mr Bewsher (CAE), together with other flooding studies in this catchment area. From this, he says that:

• The underground pipe system appears to have capacity to convey only a limited portion of the total runoff emanating from the upstream catchment during major floods,
• Overland flows travelling across the surface of the ground during major flood events will be significantly obstructed in many locations by buildings and other structures, both upstream and downstream of the subject site,
• Reference to the other flooding studies shows that a Lyall & Associates (LA) flood study was prepared in March 2003 for a proposed subdivision at 70 – 78 Box Road. This study included depth and velocity relationships across the subject site,
• Another Jones Nicholson Pty Ltd (JN) flood study has been undertaken, which relies in part on the LA findings,
• The LA study made use of a TUFLOW computer model of flood behaviour. This model is two-dimensional (2D), which Mr Bewsher considers is the most appropriate model, considering that overland flow paths in the general area are obstructed in numerous locations by the presence of buildings and other structures,
• There are two very important characteristics in the HEC- RAS model which make it inappropriate for the application to the subject site;
  (a) the water level at all points a cross-section is assumed to be equal. In other words, the water level within adjacent flow past depicted on each cross-section, are assumed to be equal; and
  (b) the interchange of flood discharges between flowpaths on adjacent cross sections is not properly simulated by HEC-RAS, e.g. at cross-section “XS20” only 40% of total overland flow simulated as passing between the ‘gap’ in the buildings and into the open would cause at the north eastern corner of the site ( i.e. that the northeastern corner of the Franklins building). A further 31% of the flow in simulated as passing along the western side of the Franklins building, with a further 29% of the flow passing to the east of the building immediately north of the Taren Point Hotel. This is clearly erroneous as the vast majority ( at least 80-90%) of the Overland float be expected to be passing through the gap referred to above. (Note that my assessment is also generally consistent with that simulated in the Lyall and Associates report),
• On the basis of a preliminary assessment the majority of the site, except possibly for the building footprint would be classified as a ‘high hazard floodway’ and the majority of the site would have depths and velocities which exceed;
  (a) the accepted safety standard of vd = 0.4 sqm/s for pedestrians. (Note “vd” is the product of velocity and depth),
  (b) the accepted safety standard for vehicle stability of vd = 0.6-0.7 sqm/s, and
  (c) a 0.3m limiting depth of floodwaters, which is generally accepted as the depth at which small cars may begin float.
• The typical depth of inundation over most external areas of the site would be 0.6m-0.8m during a 100 year ARI flood, assuming no blockage of overland flow paths occurs. In my opinion, there will be a propensity for blockage and it would be normal practice to assume that overland flow paths could be blocked to some extent. A 50% allowance for flowpath blockage would be a reasonable assumption in my view. Under these circumstances, flow depths, particularly in the northern part of the site will be higher and flood velocities will be marginally reduced. In the “unblocked” situation, velocities in the north-western extremity of the site would be close to 1m/s.

47 Mr Bewsher also undertook an assessment of the change in flood risks for the proposal as compared to previously uses of the site. His assessment is:

“(a) Internal Property Damage. I have assumed that a high standard of internal fit-out will be provided in the café/deli. I also note that the Applicant proposes to utilise flood compatible materials and procedures to minimise flood damage. On balance, it is my opinion that it is likely that during major flooding, property damages will be increased.
(b) External Property Damage. I understand the application involves an “expanded car parking area”. With increased patronage of the premises, this greater number of vehicles is likely to be present on the site more often than under previous consents. I note that Mr Canturi in his affidavit has offered to install a warning alarm to alert staff and the public of impending inundation. Whilst I would agree that such an alarm should be provided if the development was to be approved, I am not convinced there would be less potential damaged cars parked in the rear portion of the site. I am also particularly concerned that floating cars washed in a northerly direction towards the open watercourse in Nos 70-78 Box Road will obstruct the overland flowpath and raise flood levels.
(c) Risk to People. I have been advised by Mr Layman that the proposed development is likely to involve increased patronage by members of the public. To his credit, the Applicant is proposing the construction of two flood refuges which would allow persons within the building to relocate to a higher level and wait until floodwaters have passed. While this will mitigate the personal safety risk to some extent, I am concerned that the staff and members of the public will attempt to relocate their vehicles from the rear yard when it gets and velocities will be hazardous. So it is my opinion that despite the presence of the flood refuge platforms, the additional patronage and likely higher numbers of vehicles on the site will worsen the safety risks.

48 Mr Bewshers conclusion is that the proposal does not satisfy councils Flood Risk Management DCP to be classified as ‘concessional development’ because of the increase in the aforementioned flood risks, therefore he does not support the approval of the proposal.

49 As a consequence of these disparate positions, a joint conference between the drainage experts was undertaken. The outcome of this conference was:

• acknowledgement that Mr Celona used the HEC-RAS based on advice from Council,
• in terms of the definitions of hazard in the Floodplain Development Manual, most of the site is high hazard,
• agreement to Mr Bewshers aforementioned safety standards,
• the typical depth of inundation over based external areas of the site will be 0.8m in a 100 year event. In this event the floor of existing building will be inundated to a typical depth of 0.5m.
• in this event, the depth of water over most of the site will be sufficient to float small vehicles,
• regard to pedestrian safety, Mr Celona believes that some of the site will be unsafe, while Mr Bewsher says that most of the site will be unsafe.

50 Subsequently, Mr Celona provided further details in the form of a flood management plan (FMP) (Exhibit F), in support of the application. This FMP provides that:

• the existing floor level of the building shall not be lowered,
• all building and fitout is to ensure flood compatible materials up to a level equivalent to the 100yr ARI plus 500mm,
• bollards are to be provided along the northern and eastern carpark spaces to assist in securing any vehicle remaining on the site should they become buoyant,
• bollards are to be located around the headwall to prevent large debris (i.e vehicle) from the washed into the creek located at the north-western corner,
• the existing chain wire fence surrounding the creek is to be replaced with a pool style fence.

51 The FMP also includes a ‘flood evacuation plan’, which gives specific attention to evacuation options and risks. It acknowledges that floodwaters in this catchment could rise faster than the 6 hour timeframe for the SES to ensure flood warning, so that sheltering indoors and evacuating vertically above the floor waters is proposed in the event of significant flooding.

52 This involves the provision of a proposed mezzanine floor level well above the flood level, which is accessed via stairs. Flood warning systems are to be implemented, which are triggered when the drainage water surcharges from the Parraweena Road pit, i.e. approximately the 2yr ARI flood event.

53 The drainage expert's again conferred to discuss the FMP evacuation proposals and decided that:

• if the site was greenfields, it would be undesirable to develop the entire site for commercial, industrial or residential purposes because of its flood characteristics. However Mr Celona believes that as this is a brownfield site, alternative management measures and controls are appropriate,
• insofar as Mr Celona considers the flood evacuation arrangements can mitigate the flood risk to an acceptable degree to make the site safe, Mr Bewsher alternatively says that for human behaviour and technical reasons, reliance on the Flood Evacuation Plan cannot be made,
• in any case, the consultants agree that staff and customers should not drive their cars, or be encouraged to drive their cars, through any floodwaters irrespective of the depth of floodwaters,
• further modifications should be made to the FMP to make it safer by:
• have the alarm activate at a lower water level in Parraweena Road, provided it did not induce unnecessary evacuation;
• delete requirement for the rear fence to be collapsible;
• provide an alternative driveway exit to Parraweena on the western extremity of the site frontage, where the ground levels are higher;
• investigate the need for additional storage areas for valuables and sensitive equipment away from floodwaters,
• stacked parking, parallel to the eastern boundary, with reconfigured bollard positions, may reduce the potential for cars to float away from their parking spaces.

54 Mr Casaceli’s evidence is based on his extensive local knowledge of the Taren Point area, considering he has operated businesses in the area since 1977. He currently operates Cronulla Furniture, which is located on the southern side of Parraweena Road, diagonally opposite the subject property.

55 He referred to other surrounding businesses, which attract significant numbers of patrons and include similar open car parking areas, which are subject to flooding. Accordingly he says that:

"Over approximately 30 years of my owning and operating businesses on Parraweena Road and immediately neighbouring the subject site I have witnessed that there have been numerous heavy rainfalls which have not caused any flood above the ground level other than water pooling on Parraweena Road.

In the 2003 flooding so that there was no damage to Cronulla Furniture and in relation to the subject site the building structure was undamaged, although the carpet had to be replaced in the office and showroom area."

56 These observations are of interest in comparisons with the modelling process.

Conclusions.

57 Having considered the evidence, the submissions and undertaken a view I am satisfied to rely on the opinions of both Court appointed experts, Mr Layman and Mr Bewsher that this proposal does not merit conditional consent.

58 The first issue concerns the permissibility for this type of use for the retailing of fruit and vegetables, other foodstuffs and cafe/delicatessen. Under the primary controls in SSLEP 2000, the main avenue for consent would be the classification of the proposal as a "food shop", which requires development consent in the 4(a) General Industrial zone. Detailed assessments in respective of the proposals compliance with the relevant sections of this plan have been undertaken by the respective planning experts.

59 Insofar as SSLEP 2006 has been gazetted, it contains an effective savings clause, which allows any development application lodged before commenced of this plan, to be determined as if the plan had been exhibited but not made. In so far as it includes the subject property within an Employment zone, it still allows a food shop, with consent. Also of relevance it contains clause 20; Environmental risk - flood risk. This clause applies to land shown on the Flood Liable Land Map and requires consideration to a number of identified matters. Accordingly, the relevant matters have been considered in the merit review of the relevant matters identified in SSLEP 2000.

60 There are associated controls in DCP 2006. Clause 4 deals with the flood risk management and maintains the opportunities and controls for concessional development. It contains a number of controls relative to the area environmental risk situations, which includes flood affects, car parking and driveway access, evacuation and management and design provisions.

61 However I am satisfied that the relevant matters for consideration have been covered in the merit assessment under the provisions of the other DCPs covered by SSLEP 2000.

62 As I have stated previously, development consent for this proposal is dependent on its classification as a "food shop". Under the definition, this requires that the principal purpose of the use is the preparation and selling of fruit and refreshments for consumption off the premises.

63 Whilst I accept that some preparation is involved, it nevertheless seems to me that the area set aside for this preparation is relatively small, i.e. about 16% of the gross floor area of the building, as determined by Mr Layman. Consequently, the remaining 80% of the floor area contains stands for the display and selling of the various food items.

64 Reference to the SEE says that the market store will be primarily use for bulk storage and the wholesale distribution of fruit, vegetable, groceries and smallgoods to schools, hospitals, clubs, nursing homes, day-care centres, reception centres, restaurants and the like and will provide the option pickup or delivery to clients. Also, that the public will be able to purchase goods from the premises.

65 As I have stated, the area set aside for preparation is relatively small and accordingly I do not consider that this arrangement satisfies the requirement for the principal purpose being preparation and selling of food and refreshments to people for consumption off the premises. Instead it seems to me that this is very much a secondary role and accordingly I rely on the opinions of Mr Layman and Mr Ingham that this proposal does not meet the requirements for classification as a food shop, which therefore results in the refusal of the application.

66 However, as I previously noted if the proposal is otherwise classified so as to make it permissible, then such use is only allowed on appropriate sites, in accordance with the objectives for the 4(a) General Industrial zone. Both the LEP and the Industrial Development DCP clearly discourage general retailing, except ancillary retailing which is an integral part of the operations of an industrial use, or retailing which serves daily contains needs of the workforce in the locality.

67 In this regard, the main consideration for the appropriateness of the site concerns the flood liability and risk implications for the proposed use. The assessment of the competing evidence on this issue somewhat complicated because of the different modelling approaches advocated by the respective consultants and the lack of any overall flood management plan or strategy by council for this catchment, despite the flooding risks being well known and identified.

68 Notwithstanding this, I am satisfied from the evidence that this site is subject to significant flooding and that it is located within a high hazard floodway. This is illustrated in Photo 1 in Mr Bewsher, which shows the flood levels on an abandoned car in Parraweena Road, resulting from a storm on 13 May 2003. This storm was estimated to have a recurrent interval in the order of 5 -10 years.

69 Within this high hazard floodway environment, the critical factors include the depth and velocity that are likely to affect personal safety and property. Insofar as different values were presented in terms of the depth of flood water and associated velocities, I consider Mr Bewsher’s approach is more reliable in the circumstances of this case.

70 He prefers that a 2-dimensional model be used, in preference to the 1-dimensional model utilised by Mr Celona. Whilst the DCP refers to both models, it seems to me that an engineering judgement is required to determine which is most appropriate model for particular circumstances. It is obvious that the catchment area around the subject property is built up with many factory units and improvements that would have an influence on the direction and velocity of overland stormwater flows. Under these circumstances, I accept Mr Bewsher’s evidence that the 2-dimensional model is more reliable and predictive of actual stormwater flows across the subject site, rather than the 1-D model, the which assumes the water level at all points on the cross-section is equal.

71 On this basis then, I also accept Mr Bewshers interpolation of the flood studies for nearby properties, which are located in similar proximity to the same watercourse, notwithstanding the qualification that they were not specifically prepared for the subject site. The Jones Nicholson report assessed the upstream property at 191-193 Taren Point Road and estimated that the v x d product was in the order of 1sq m/s. The levels of surrounding land would most likely result in a significant portion of the overland flow travelling through the subject property along its driveway, over the drainage easement alignment.

72 The Lyall & Associates study assessed the flooding for 70-78 Box Rd, Taren Point, which borders the downstream boundary of the subject property. It estimates that when the aforementioned overland flows pass through the subject property and enter 70-78 southern boundary, the v x d product is greater than 0.4sqm/s. It appears to me, that there is some consistency with these two assessments and they are therefore more reliable than Mr Celona’s 1-dimensional model.

73 I also prefer the more conservative approach advocated by Mr Bewsher, because he says that significant allowances should be made for blockages in the drainage system (up to 50%). This allowance apparently has not been made in Mr Celonas modelling, which I consider increases the risk level, as stated by Mr Bewsher.

74 Accordingly, on the basis of the 1:100 year design flood, it appears that the flood waters at the site could rise very rapidly over a 2 hour period, inundating the site to depth in the order of 0.8m, with velocities in the order of 1m/s, according to Mr Bewsher.

75 Taking into account that the experts agreed to the critical assessment criteria that the v x d product should not exceed 0.4 sqm/s for pedestrian safety, the proposals v x d in the order of 0.8sqm/s is excessive. Also the v x d of 0.6-0.7sqm/s for vehicle stability is exceeded. The 0.3m limiting depth of floodwaters is also exceeded.

76 In my opinion then, the significant non-compliance with accepted evaluation criteria for safety represents a major hurdle in determining that the site is suitable for the proposed development. Whilst the controls do not seek to sterilise flood-liable land, it still seems to me that the proposed safety and flood evacuation measures are not sufficiently detailed to make the site suitable for the proposed use.

77 From my assessment of the evidence, the significant risks making the site unsuitable are:

• the warning alarm for evacuation of the site or to the mezzanine would be set and triggered at a relatively frequent level, i.e. probably a 2year ARI, when the storm water surcharges from the drainage pit in Parraweena Road occur,
• the routine activation of this alarm system on a regular basis with the requirement for evacuation of many shoppers is unlikely to be in the public interest,
• a significant part of the overland flows will follow the drainage easement alignment through the site, which is also the main alignment for the access/egress driveway from the development. Again, it does not seem that the public interest is well served if patrons attempt to leave the premises in storm events and traverse the overland flows to their cars and endeavour to drive out of the property,
• the proposed development is likely to attract a regular number of private vehicles and even though the numbers can be restricted to about 40, nevertheless the engineers agree that special bollarding is required for those car spaces to prevent vehicles being washed away and causing damage. These extraordinary arrangements are uncommon and undesirable.

78 Insofar has reference was made to other nearby developments, which are exposed to a similar level of flood risks, I give this little weight. Apparently the adjoining Franklins store was approved over 30 years ago when presumably there was a different level of knowledge of flooding impacts and risks allowed. This is not consistent with current practice and the public interest is not well served by maintaining those levels of safety in new and redevelopments, which attract significant people.

79 Also, the Taren Point Hotel has been redeveloped, but it also has the benefit of a previous consent. Whilst it will be subject to significant overland flows, nevertheless it has better escape routes to higher ground than the subject land.

80 Insofar has reference was made to the previous use of the site for plant nursery, that was for a conforming use, being bulky goods retailing, which was permitted. Notwithstanding this, I give some weight to Mr Layman's evidence that the proposed food shop is likely to involve a different form and increased level of patronage, where it is probable there will be increased customer visitation and activity as people wish to maintain their supply of fresh fruit and vegetables, as compared to the frequency of customers to observe or purchase plants/products.

81 On this basis then, I rely on both Mr Layman and Mr Bewshers evidence that the proposal for the use as a food shop is likely to increase the risks to property and persons and therefore this site is not suitable for this purpose.

82 This however does not mean that the site is to be sterilised as other industrial uses are possible, which involve much less visitation by the general public. Such uses could be similar to the storage units north of the site.

Court Orders

1. The appeal is dismissed.
2. Development consent for the use of the premises at 119 – 121 Paraweenwa Road, Taren Point for a food shop is refused.
3. The exhibits may be returned except for 1, 2, 8, 9, 10, 11, 12, 14, A and D.

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R Hussey

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