Dennes v Port Macquarie-Hastings Council

[2016] NSWLEC 1345

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dennes v Port Macquarie-Hastings Council [2016] NSWLEC 1345
Hearing dates:	19, 20, 28 July 2016
Date of orders:	17 August 2016
Decision date:	12 August 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld see [71]
Catchwords:	DEVELOPMENT APPLICATION: Replacement dwelling on flood prone land; flood emergency response plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Port Macquarie-Hastings Local Environmental Plan 2011
Cases Cited:	McBurney v Penrith City Council [2014] NSWLEC 1100 Primo Estates Pty Ltd v Wagga Wagga City Council [2005] NSWLEC 632
Category:	Principal judgment
Parties:	Ross Dennes (Applicant) Port Macquarie-Hastings Council (Respondent)
Representation:	Applicant: Ms L M Saw (Barrister) Respondent: Ms S Puckeridge (Solicitor)     Solicitors/Agent: Applicant: Australian Town Planning Pty Ltd (Agent) Respondent: Lindsay Taylor Lawyers
File Number(s):	150671 of 2016

Judgment

1. COMMISSIONER:   The applicant has appealed Port Macquarie- Hastings Council’s refusal of Development Application No. DA2014/0539 (the DA) for the construction of a replacement single storey, three bedroom dwelling and single garage at 330 Koree Island Road, Beechwood (the site). The dwelling is proposed to be constructed on an earth mound to raise the floor level of the dwelling to 18.70m AHD.

2. On 12 November 2015, the council refused the DA on the basis that given the potential flood hazard of the site: the site is unsuitable for the proposed development; the proposal is not consistent with council’s Flood Policy 2015; and the development would result in an unacceptable risk to life and property and is therefore not in the public interest.

3. The applicant appeals council’s decision under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The site and its location

4. The southern end of Koree Island Road, Beechwood is a promontory within a horseshoe bend of the Hastings River; at the neck of the promontory is a gully or causeway. This southern section is known as “Koree Island” although it is not technically an island in the river. Koree Island Road then continues to the “mainland” upslope to the north and eventually to Beechwood. The distance from the site to the “mainland” is approximately 1-1.5 km along a gravel road.

5. The applicant’s property is one of three rural holdings on the southern end of the road. The nearest neighbour at 329 Koree Island Road is to the north-east of the site; 222 Koree Island Road is to the northwest. The site is approximately 5 km upstream of Bains Bridge on the Hastings River.

6. The existing timber dwelling on the site, thought to have dated from the late 1800s/early 1900s, was demolished sometime between July 2013 and January 2014. There are five agricultural outbuildings, including a machinery shed, remaining on the site.

7. The approximately 30 ha site comprises lower river flats adjacent to the Hastings River with levels ranging from 11.5-16m AHD. The land then rises more steeply to a defined bank to above 18.0m AHD. The site is predominantly open grazing with few trees apart from riparian vegetation along the river bank and a row of exotic trees, a Bunya Pine and a large Fig on the highest land near the former and proposed house sites.

Relevant background

8. By way of background, the following information is useful in understanding the relationship between the site, the relative positions of the parties and the evidence discussed on site and in court.

9. In a memo to council’s Director Development and Environment dated 4 September 2014, regarding the DA, council’s Environmental Projects Officer provided the following background (p.29 Exhibit 2).

The property is located approximately 5km upstream of the Hastings River Flood Study model and as a result flood knowledge of the site is limited. However, a 100 Yr flood level for the site is estimated to be 18.05m AHD based on the historic 1968 flood which is estimated to be in the order of a 100 Yr flood level (Hastings River Flood Study, 2006).

Subsequently, the Flood Planning Level for the site (100 Yr Flood Level + 600mm freeboard) is 18.65m AHD. The report accompanying the Development Application indicates that the proposed dwelling can achieve this level via filling. The natural surface level at the proposed dwelling site is approximately 7.5m AHD [this appears to be an error – the agreed height of the house site is 17.8m AHD].

10. The officer then goes on to determine that the site is likely to be High Hazard – Floodway with the river crossing at the neck of the “island” (at about 10.5m AHD) becoming a floodway early in a flood event. At a peak 100 year event the site would be fully submerged. The officer mentions a flood in February 2013 which is described as a less than 20 year flood event in which part of the site was submerged. In regards to evacuation, the officer states that the island would be separated from the “mainland” for up to four days and therefore evacuation to Beechwood would be preferable. Council’s (then) interim Flood Policy requires a minimum of 8 hours’ notice be given to occupants before an evacuation route is cut. The evacuation route - the gravel road, is narrow, undulating and mostly below the 100 year level and traverses a gully which drops to a height of about 14.0 m AHD. It is expected that velocities at the low points would be high.

11. The proposal includes a plan to evacuate to a neighbouring property (222 Koree Island Road) which is above the 100 year event. The officer states that while this option has been identified, the applicant needs to prove there are suitable evacuation pathways to ensure that emergency services are not required to conduct rescues or provide air drops. Concerns are also raised as to what may happen if the properties change hands.

12. The council officer recommends refusal of the DA on the basis that adequate evacuation pathways and prior notice are not available to enable safe development on the floodplain. In the alternative, the officer suggests other options in order to reduce flood risk including the construction of the dwelling above the Probable Maximum Flood (PMF) level and which would act as an in-situ flood evacuation refuge. The refuge would need to be equipped water storage and electricity generator. Another option could be the installation of guide posts and flood markers along Koree Island Road and within the Hastings River causeway crossing.

13. Apart from the council officer’s report, a report prepared by Hopkins Consultants in July 2014 (Exhibit A) and which accompanied the development application, provides additional useful information on local flood monitoring. The nearest flood gauge is located at the nearby Koree Island Pump Station – on a bend in the river to the immediate west of the site; this is owned and operated by the council [it is not a designated gauge on the Bureau of Meteorology website]. The other and most relevant flood gauge is upstream at Kindee Bridge, Ellenborough. Essentially, the decision to evacuate Koree Island would be correlated to the upstream levels at Kindee Bridge. Further downstream is a gauge at Wauchope.

14. In a report prepared by the applicant’s flood expert Mr Drew Bewsher (Exhibit D), the highest part of the island is at 222 Koree Island Road. This is likely to be above the probable maximum flood level and would be classified as a ‘High Flood Island’; the elevated land at the south-eastern end at 329 and 330 Koree Island Road would be classified as ‘Low Flood Island’. These terms are defined in the document Flood Emergency Response Planning: Classification of Communities, Floodplain Risk Management Guideline. NSW Office of Environment and Heritage; 2007 cited by Mr Bewsher; relevantly:

High Flood Island: The flood island includes enough land higher than the limit of flooding (i.e. above the PMF) to cope with the number of people in the area. During a flood event the area is surrounded by floodwater and property may be inundated. However, there is an opportunity for people to retreat to higher ground above the PMF within the island and therefore the direct risk to life is limited. The area will require resupply by boat or air if not evacuated before the road is cut. If it will not be possible to provide adequate support during the period of isolation, evacuation will have to take place before isolation occurs.

Low Flood Island: The flood island is lower than the limit of flooding (i.e. below the PMF) or does not have enough land above the limit of flooding to cope with the number of people in the area. During a flood event the area is isolated by floodwater and property will be inundated. If floodwater continues to rise after it is isolated the island will eventually be completely covered. People left stranded on the island may drown and property will be inundated.

15. The Hastings River Flood Study 2006 and associated management plans formed the basis of council’s Hastings River Flood Policy 2015. The study only extended to Bains Bridge, about 6kms upstream of Wauchope - about 6kms downstream of Koree Island.

Assessment framework

16. The site is zoned RU1 Primary Production under Port Macquarie – Hastings Local Environmental Plan 2011 (PMH LEP). Clause 4.2 applies to the erection of dwelling houses and dual occupancies in certain rural and environmental protection zones. Objective (b) in subclause 4.2(1) is:

(b)   to enable the replacement of lawfully erected dwelling houses in rural and environmental protection zones.

17. Clause 7.3 concerns Flood planning. Relevantly:

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

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

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

(c)   to avoid significant adverse impacts on flood behaviour and the environment.

(2)   This clause applies to:

(a)   land that is shown as “Flood planning area” on the Flood Planning map, and

(b)   other land at or below the flood planning level.

(3)   Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a)   is compatible with the flood hazard of the land, and

(b)   is not likely to significantly, adversely affect flood behaviours resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)   incorporates appropriate measures to manage risk to life from flood, and

(d)   is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in in the stability of river banks or watercourses, and

(e)   is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

18. PMH LEP defines flood planning level as the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5m freeboard.

19. Port Macquarie-Hastings Development Control Plan 2013 (PMH DCP) applies to the site. Chapter 2.4 Hazards Management is relevant, in particular cl. 2.4.3.5 Flooding. The objectives and development provisions are:

Objective

To maintain the existing flood regime and flood conveyance capacity.

To enable evacuation of land subject to flooding.

To avoid significant adverse impacts on flood behaviour.

To avoid significant adverse effects on the environment….

To limit uses to those compatible with flow conveyance function and flood hazard.

To limit the cost of evacuation on the general public.

Development Provisions

a)   Development must comply with Council’s Floodplain Management Plan and Flood Policies.

20. The Port Macquarie-Hastings Council Flood Policy (the Flood Policy) – adopted 21 October 2015, applies. This document addresses the NSW Government’s Flood Prone Land Policy detailed in the NSW Floodplain Development Manual 2005 (the Floodplain Manual).

21. The Flood Policy applies to land that is at or below the level of the Probable Maximum Flood (PMF). The relevant primary objectives of the Flood Policy in terms of achieving sound flood management are:

(i)   To maintain the existing Flood regime and flow conveyance capacity;

(ii)   To reduce the impact of Flooding and Flood liability on individual owners and occupiers of Flood prone property;

(iii)   To reduce private and public losses resulting from Floods;

(iv)   To increase public safety with respect to Flood events;

(v)   To protect the operational capacity of emergency services and emergency response facilities during Flood events;

(ix)   To utilise best engineering practice for determination of Flood conditions, impact and risk;

(xi)   To ensure that any New Development or modifications to existing Development must, as far as practical, result in a reduction in the existing Flood Risk, and in no circumstances should the Flood Risk be made worse;

22. Other relevant sections of the Flood Policy and Floodplain Manual are considered in the evidence of the flooding experts, however, the following definitions from the Flood Policy are useful:

Effective Warning Time The time available after receiving advice of an impending Flood before the floodwaters prevent appropriate Flood response actions being undertaken. The Effective Warning Time is typically used to move farm equipment, move stock, raise furniture, evacuate people and transport their possessions.

Flood Fringe Area is the remaining area of Flood Prone Land after Floodway and Flood Storage Areas have been defined.

Flood Planning Level is the combination of Flood levels (derived from significant historical Flood events or Floods of specific AEPs) and Freeboards selected for Flood Planning purposes, as determined in Floodplain risk management studies.

Flood Storage Area an area of the Floodplain that is important for reducing Flood severity by providing temporary detention/storage of floodwater during the passage of a Flood.

Floodway is the area of a Floodplain where a significant discharge of floodwaters occurs during Floods. Floodways are often aligned with naturally defined channels. Floodways are areas that, even if only partially blocked, would cause a significant redistribution of Flood flow, or a significant increase in Flood level.

Replacement Dwelling refers to the replacement of an existing Dwelling within Flood prone areas (like for like replacement).

Parties’ positions

23. Council contends that development consent should not be granted to the proposed development because the site is unsuitable, the proposal is incompatible with the high flood hazard rating of the site, is inconsistent with the Flood Policy and Flood Manual, and the applicant has failed to demonstrate that during major flood events, current and future residents could safely evacuate to higher ground. The council maintains that, on its merits, the application should fail.

24. The applicant asserts that the proposed development is a replacement dwelling which is compatible with the Flood Policy which considers replacement dwellings differently to new development. The applicant’s position is that the proposed new dwelling and the draft Flood Emergency Response Plan prepared by the applicant’s flooding expert, improves safety and reduces risk to property and life and therefore should be approved.

25. The matter commenced on site as a mandatory conciliation between the parties under s 34AA of the Land and Environment Court Act 1979 (Court Act). Despite some narrowing of the issues, the parties were unable to reach agreement, the conciliation was terminated and the matter proceeded immediately to a hearing. Following further discussions between the parties, the remaining difference between them is whether deferred commencement condition (2) should be imposed; this states:

(2)   The FERP [Flood Emergency Response Plan] shall include a Flood Evacuation Plan that incorporates a formalised pedestrian evacuation route at least 2m wide extending from the frontage of the proposed dwelling to the proposed flood refuge at 222 Koree Island Road (above the PMF), and which has an average rising gradient that is at least equivalent to the water surface gradient at the peak of the 100 year ARI flood between the western edge of the causeway and the Site. Proof of the dedication of the easement for access to accommodate the evacuation route is to be provided prior to release of the Construction Certificate. The design of the access is to consider any potential impacts that the access may have on flood behaviour and is to include culverts across flood runners or the like that are designed by a suitably qualified hydraulic engineer, and is to be approved by Council.

26. Council presses this condition on the basis of the opinion of their flooding expert, Mr Chris Thomas. The applicant opposes this condition as it will be an overly onerous and prohibitively costly exercise involving earthworks and construction on the neighbour’s land.

Hearing and evidence

27. The conciliation commenced on site. Apart from the owner of 330 Koree Island Road (the applicant), the past and present owners of the two other properties on the “island” (329 and 222) gave oral evidence. Also present were the parties’ flooding experts – Mr Drew Bewsher for the applicant and Mr Chris Thomas for the council, as well as council officers. The residents’ oral submissions were provided in addition to affidavits tendered in evidence.

28. The site of the former dwelling was identified as was the proposed site of the new dwelling – on slightly higher land than the original dwelling.

29. The past and present owners of the three properties discussed their long-term experiences with floods and what usually happens when the lower properties, 329 and 330, need to be evacuated.

30. Mr Trotter is the owner of 222 Koree Island Road. His family have owned the property since 1936; he was born there in 1947 and has lived there permanently since 1978. Mr Trotter outlined the usual process of warnings and or evacuation in times of possible flooding. It appears that the levels at Kindee Bridge are checked on the Bureau of Meteorology (BOM) website. Mr Trotter either rings the neighbours at 330 and 329 and or drives down the road to see them. Access to higher ground at his property is usually obtainable via the road however on rare occasions when the road is flooded, access is possible across the paddocks, usually by tractor. Mr Trotter has provided a letter which formalises his permission for the applicant and his family to take shelter on his property during times of flooding.

31. Ms Janet Olive and Mr Lachlan Hollis reside at 329 Koree Island Road. Members of the Hollis family have lived on their property since 1856. Ms Olive and Mr Hollis confirmed the arrangements outlined by Mr Trotter. They also stated that there is plenty of warning to enable the pumps to be moved and the stock relocated to higher ground before any need to evacuate their premises. The evacuation is usually by road.

32. Ms Marie Winter is Mr Hollis’ older sister. In her affidavit she states that she and her brother Lachlan were at home during the 1968 flood. Ms Winter recalls that the floors of 329 were above the flood waters and the water surrounding the property was ‘slow and almost still’. To the best of her knowledge, floodwater had never entered the old house at 330. Ms Winter states that she recalls only three occasions where the road has been flooded in the 1950s, 1960s, and 2013. In her experience, the river gauge height at Kindee Bridge is reported on “Flood Watch”; major flood alerts are broadcast by ABC local radio with a “major flood alert” reported every hour; the results are also available on line or by phone; the peak at Kindee Bridge takes about 8-10 hours to reach Koree Island which gives residents time to leave the island before water goes over the causeway.

Flooding evidence

33. The parties each engaged a consulting engineer to provide expert evidence on the contentions relating to flooding. The engineers, Mr Drew Bewsher for the applicant and Mr Chris Thomas for the council, each prepared an individual statement of evidence as well as participating in joint conferencing.

34. In their joint report (Exhibit 4), the engineers identify and discuss the three primary issues within the contentions:

• Issue 1: Suitability of the site for residential development due to its potential to be flooded, including whether the proposed floor level of the dwelling is above the Flood Planning Level;

• Issue 2: Personal safety and evacuation; and

• Issue 3: Unsustainable social and economic costs that could flow on to the community as a consequence of flooding.

Issue 1: Site suitability

35. Mr Thomas was involved in The Hastings River Flood Study 2006 and the development of associated management plans which ultimately formed the basis of the Hastings River Flood Policy 2015. In his report (Exhibit 3) he states that the study only extended to Bains Bridge, about 6kms upstream of Wauchope - about 6kms downstream of Koree Island. He states that the available investigations to date suggest the 100 year ARI flood at the site to be approximately equivalent to the 1968 flood. He suggests that the most recent major flood in 2013 (for which photographs of Koree Island are available) was of a similar magnitude to the 1968 flood. By using various modelling methods from the 2006 Flood Study and incorporating the 2013 information to approximate the 100 year ARI level at the site [explained in Mr Thomas’ individual report and in the joint report], Mr Thomas considers that the level would be higher than the peak levels recorded during the 1968 flood. While he accepts the level is uncertain, he suggests it is between 18.1 – 19.0 mAHD and possibly up to 20.0 mAHD.

36. Mr Bewsher considers Mr Thomas’ approach to be very approximate and sensitive to the assumptions used. In his opinion, there is no valid basis to move away from the 100 year flood levels as discussed in his report (Exhibit D at [22]) in which he cites the 2006 Flood Study which concluded that the 1968 flood was of a similar magnitude to the design 100 year flood in the upper reaches of the Hastings River around Wauchope. Further at [23], he states that the report suggests that the 1968 flood was between a 200 and 250 year recurrence event at Wauchope and upstream at Ellenborough, was closer to a 90 year recurrence event. Therefore, Mr Bewsher maintains that it is reasonable to adopt the 1968 historical event in order to determine the flood behaviour at Koree Island. He considers that while it would be possible to carry out computer modelling to establish flood behaviour at the island, this would be expensive and unnecessary in the circumstances. Using measurements taken at the nearby river pump station and correlated with observations made by residents present at the time, Mr Bewsher concludes that the 100 year ARI at the site is 18.05 mAHD; he considers the velocity around the dwelling to be less than 0.5m/s and up to 1.5-2.5m/s closer to the river.

37. After some debate about the accuracy or otherwise of the levels reached by the 1968 flood and subsequent modelling carried out by both experts, they adopt a 100 year ARI flood level at the site of 18.2m AHD. After further discussion, the experts agreed that the appropriate Flood Planning Level at the site is 19.1 m AHD which is to be the revised habitable floor level of the proposed dwelling.

38. Both experts agree that irrespective of the depth of inundation at the site in the 100 year ARI flood, the ‘true’ hazard, as defined in the NSW Floodplain Development Manual (2005) which takes into account a range of hydraulic principles, would be ‘high, although Mr Bewsher considers it is ‘transitional’ to high. Mr Thomas is of the opinion that as a consequence of this rating, the site is unsuitable for the proposed development. Mr Bewsher considers that the higher floor level proposed by the applicant will reduce the risk to property. In his view this reduction in risk will occur irrespective of the determination of the 100 year floor level.

39. In oral evidence, the experts agreed that the site is reasonably categorised as ‘flood storage’ rather than ‘flood fringe’ but could become a ‘floodway’ in larger events. They agreed that floodways are more hazardous. The experts disagreed as to how the Flood Policy should be read in regards to replacement dwellings in the various categories of flood fringe, storage or floodway. In essence, Mr Bewsher maintains that replacement dwellings do not strictly require a Safe Reliable Evacuation route but the risk to life must be taken seriously which is why a Flood Emergency Response Plan (FERP) is proposed. Mr Thomas considers the Flood Policy should be strictly applied both in terms of evacuation time and the requirement for a failsafe evacuation route.

Issues 2 & 3: Personal safety and evacuation; unsustainable social and economic costs

40. Mr Bewsher considers the proposed development will reduce the true hazard and will improve personal safety. In his opinion the replacement dwelling can be structurally designed to resist the forces of floodwaters, and if an attic space with access to the roof is included, this can act as a refuge and an emergency shelter to be used as a last resort; further, the development and implementation of a FERP will also reduce the risk. Mr Bewsher opines that as this is a replacement dwelling, this application does not increase the burden on emergency services.

41. In regards to the 8 hours Effective Warning Time specified in the Flood Policy, Mr Bewsher agrees that this will not always be available however given the nature of the development and the size of the rural allotment, the available warning time of 6 hours is adequate. He agrees that when the low flood island is overwhelmed, it may not be possible to reach 222 by foot; however he opines that while this is possible, it is a remote possibility.

42. Mr Bewsher maintains that the proposed development will reduce the existing social and economic costs to the community as a result of flooding for the following reasons: consistent with the requirement of ‘habitable dwellings and extensions in Table 5 of the Flood Policy the floor level will be above the level of the previous dwelling (which he notes was also above the 100 year flood level accepted by council), and as the probability of inundation is reduced, so too will be the likelihood of any resulting damages; the building is to be structurally capable of withstanding floods; an emergency refuge (as a last resort) is to be incorporated in the dwelling; and a FERP is to be prepared for the dwelling. As a consequence, Mr Bewsher considers that the proposal will result in a decreased burden on emergency services.

43. Mr Thomas accepts that the proposed development will result in a floor level higher than the floor level of the original dwelling; however, in his opinion this will not materially reduce the true flood hazard because it will not be raised above the PMF. In his view the true hazard is intrinsically linked to the potential for residents to safely evacuate from the site. Mr Thomas states that as the proposal does not include any measures to reduce the risks associated with the evacuation to 222 Koree Island Road, it does not reduce the hazard or materially improve personal safety, and is therefore inconsistent with accepted floodplain management practices

44. In regards to the measures proposed by Mr Bewsher, Mr Thomas considers that the inclusion of an attic and roof opening will increase the risk to residents because it will create a false sense of security and discourage them from leaving early enough; should emergency evacuation from the roof via a helicopter be required, he maintains that this could increase the risk to life. . Similarly, the 8 hours Effective Warning Time required by the Flood Policy is not achieved for the site. As such, Mr Thomas believes that residents will have to respond quickly to the earliest warnings before the low point of the road to 222 is cut off; and even earlier to make it across the even lower causeway to the ‘mainland’. Mr Thomas remains concerned that ‘minor flood’ warnings from the Bureau of Meteorology may create ‘false alarms’ which may engender complacency.

45. Mr Thomas considers that in order to ensure future residents can safely evacuate to 222 Koree Island by foot, sound flood emergency response management requires the provision of a gradually rising evacuation route that can be negotiated without the need to cross floodwaters that increase in depth. In his view, this is especially important if severe flooding occurs at night. That is, the proposal must include a fail-safe method for safe evacuation. Mr Thomas notes that the NSW Floodplain Development Manual does not support private evacuation plans.

46. In response to council’s and Mr Thomas’ requirement for an elevated pedestrian route across the paddocks to 222 Koree Island Road, Mr Bewsher considers this unreasonable in the circumstances. While he acknowledges there is a risk, the risk is reasonable. Mr Bewsher maintains that even before a formal flood alert, there will be adequate visual triggers to a possible flood because it will be raining – probably because of an ‘east coast low’, rising water levels in the river can easily be seen from the elevated parts of the site, and there will be a practical need to move pumps and stock. In his opinion there will be enough time to safely use the road to 222, which to date has been usual practice. Mr Bewsher considers that the FERP formalises what already happens and this will make it safer for future residents.

Submissions

47. Ms Puckeridge for the council presses the evidence of Mr Thomas, particularly in regards to the safe evacuation of the property. Although the development is permitted, she asserts that it cannot meet the relevant provisions in the Flood Policy that are there to ensure the safety of current and future residents, and therefore must be refused unless the construction of an elevated walkway is conditioned.

48. Ms Puckeridge cites decisions in Primo Estates Pty Ltd v Wagga Wagga City Council [2005] NSWLEC 632 and McBurney v Penrith City Council [2014] NSWLEC 1100 where the Commissioner refused development consent for dwellings to be constructed on flood prone land on the basis that the proposed developments posed an unacceptable safety risk to residents. She submits that the proposed FERP needs further amendments and clarification and appears to rely upon advice from the BO; further, if evacuation can’t proceed along the road, it recommends taking refuge in the dwelling. In regards to the overland pathway to Mr Trotter’s property Ms Puckeridge notes the evidence that this can also be cut with flood waters and while the velocity is not understood, the experts agreed it would be unsafe to wade through the low point. She presses Mr Thomas’ opinion that the measures proposed by the applicant could be counterproductive by promoting a degree of complacency. Ms Puckeridge contends that the success of the applicant’s draft FERP will rely upon regular monitoring of water levels and radio/BOM warnings, appropriate implementation, and the co-operation of others, all of which cannot be guaranteed. She cites McBurney at [85] in regards to the Commissioner’s finding that radio broadcasts provide inadequate reliability.

49. In conclusion, Ms Puckeridge contends that development consent should not be granted as: the applicant has failed to satisfy the objectives in cl.7.3(1) PMH LEP; there is no fail-safe evacuation plan that guarantees the safety of current and future residents; the level of risk is unacceptable; in the event of a road closure the cost to the community will increase as the SES would need to evacuate residents stretching limited resources; and the proposal does not demonstrate orderly development of the land. She stresses that Mr Thomas’ evidence should be preferred given his long involvement in the preparation of the Hastings River Flood Study and Floodplain Risk Management Study. In regards to whether or not upwardly graded safe reliable evacuation routes/elevated walkways are common practice in the Port Macquarie-Hastings LGA, Ms Puckeridge notes that council’s Flood Policy is relatively new and previous controls may not have required them.

50. Ms Saw for the applicant highlights the context of these proceedings, that is, the development application is for a dwelling to replace a very old house on a constrained site on which there is an established rural enterprise. She contends that when the Flood Policy is carefully examined, there are, by necessity, somewhat lower requirements and a degree of flexibility for replacement dwellings in areas classified as flood storage and floodway, as opposed to replacement dwellings in the lower hazard category of flood fringe where it is easier to comply with requirements for new dwellings. As such, Ms Saw asserts that the proposed development with its elevated floor levels, emergency refuge, and the draft FERP, renders it compatible with the flood hazard and one which will improve the risk to property and people.

51. Ms Saw presses Mr Bewsher’s evidence and the draft FERP he has prepared which distils the local knowledge of long-term residents, with river levels from relevant river gauges, into a document that can be used by others. She argues that while the council’s expert is of the opinion that the warning time is insufficient to evacuate the site and that the residents won’t know enough to manage the risk; Ms Saw submits this not reflective of the farming activities carried out on the island – that is, the normal monitoring of weather when managing stock, crops and expensive machinery; this would be particularly so in the event of weather forecasts for heavy rain associated with, for example, an east coast low. Ms Saw contends that this monitoring would also happen at night.

52. In regards to the remaining contention/ condition requiring an elevated walkway from the edge of the proposed dwelling to higher ground at 222 Koree Island Road, Ms Saw stated that preliminary advice from the owner of that land, Mr Trotter, is that consent would not be granted for such works as they are likely to severely interrupt the normal operation of his rural enterprise. Mr Trotter would not be opposed to reflective markers placed every 50m or so which would indicate the safest and highest path of travel in case of an emergency overland retreat. Ms Saw questioned a statement by Mr Thomas that elevated walkways were ‘common practice’ in some local government areas, but not it seems in the Port Macquarie-Hastings LGA; no examples have been provided and this option was not considered in any of the council’s assessments included in council’s bundle of evidence. She asserts that other measures considered by council in their documentation, such as flood markers along Koree Island Road, were not raised during the hearing but may indicate measures taken elsewhere in the LGA. In essence, Ms Saw contends that the walkway is onerous and unnecessary and that the draft FERP has as its primary focus, evacuation via the road but could also include the provision of reflective markers across the paddocks as a back-up when the road becomes flooded; however, this will require owner’s consent and provisions for on-going maintenance.

Consideration and findings

53. Given the inherent risks to life and property associated with flooding it is essential that careful consideration be given to any proposal for development on flood prone land.

54. Clause 4.2A(1)(b) PMH LEP clearly enables the replacement of lawfully erected dwellings on certain rural land including land zoned RU1 Primary Production. While there is some material in the council’s bundle that discusses whether the demolition of the original dwelling was approved, this is not pressed and there is clear photographic and other evidence that an older dwelling existed on the site until relatively recently and the proposal is for its replacement.

55. As the site is at or below the flood planning level, cl. 7.3 Flood Planning in PMH LEP applies. Similarly, as the site is at or below the Probable Maximum Flood (PMF), the Port Macquarie-Hastings Flood Policy 2015 applies. Clause 2.4.3.5 PDCP requires development to comply with council’s Flood Policy.

56. Relevant to the applicable part of the Flood Policy, is the categorisation of the site as Flood Fringe, Flood Storage, or Floodway. While Mr Bewsher stated that at any time the site might be considered all three (presumably on the basis that flooding is a dynamic event) Mr Thomas stated it was not flood fringe. The consensus from the oral evidence seems to be that the site is primarily flood storage with the potential to be a floodway if floodwaters continue to rise.

57. The relevance is that the Flood Policy prescribes particular controls for forms of development, including replacement dwellings, for each of the three categories of flood affected land. The applicant’s case is that when the sections of the Policy are read sequentially, only replacement dwellings in Flood Fringe areas must proceed in accordance with the requirements for new development. New development in Flood Fringe areas includes a requirement, in cl. 4.9(d) for a Safe Reliable Evacuation route which must grade upwards towards land above the PMF and a minimum 8 hours Effective Warning Time.

58. For replacement dwellings in Flood Storage areas, the policy requires amongst other things, the proviso that:

(iii)   The Replacement Dwelling can meet current Flood Planning requirements. This may require the Dwelling to be relocated within the property to a less hazardous area.

59. The applicant contends that as this clause comes after the general provisions for New, Infill and Redevelopment [Redevelopment and Replacement dwellings are separately defined in the Flood Policy], which includes the same provisions for effective warning time and safe evacuation routes (in cl. 5.9(d)) applicable to residential development in Flood Fringe areas, those provisions don’t strictly apply. Council’s position is that the current Flood Planning requirements are those embodied in the Policy and therefore the evacuation provisions in cl. 5.9(d) do apply. For replacement dwellings in Floodways in cl. 6.9 of the Policy, the requirements are the same as those in flood storage areas with the exception that the Policy is silent on specific requirements for site access and flood evacuation.

60. While I accept the site is a high hazard area, apart from the provision of the elevated pedestrian access to land above the PMF level, the proposal complies with the flood planning requirements for floor levels of habitable areas and ancillary structures, as well as for flood proofing required by the Flood Policy for replacement dwellings in both Flood Storage and Floodway areas. The site of the proposed replacement dwelling has been relocated to land higher than the land on which the original dwelling was located. The habitable floor level is significantly above the floor level of the original dwelling and a further 450mm above the Flood Planning Level identified in the council officer’s report (see [9] above). The dwelling will be engineered to the standards specified in council’s draft without prejudice conditions which appear to be more onerous than those identified in Section 9 – Flood Proofing Measures in council’s Flood Policy but which the applicant accepts.

61. In contextualising this proposal, I accept the applicant’s submissions that the circumstances of this proposal for a replacement dwelling on an established rural enterprise where the landform enables safe surveillance of changes in water levels distinguishes it from a proposal for new development on flood prone land. I agree with Ms Saw that the matters cited by Ms Puckeridge involved new development on smaller and flatter sites in areas more densely populated than Koree Island. Further, I consider that the normal operation of any rural enterprise involves regular monitoring of weather conditions, including via the use of internet services as well as visual observations, and taking appropriate action when conditions change. In times of potential flood, on the evidence of the farmers present during the site inspection, this would include moving pumps, stock and machinery, all of which are valuable assets.

59. Coincidentally, during the writing of this judgment an east coast low pressure weather system developed. As enabled by s 38(2) of the Court Act I visited the BOM website and selected current weather warnings for NSW. I then selected ‘Flood watch NSW’; by going to the further link to the latest rainfall and river level information and then zooming into the Mid North Coast region, amongst other options, I was able to select Kindee Bridge and Wauchope and observe the graph of river gauge levels updated every few hours or so. I note that the graph indicates the levels which lead to minor, moderate or major floods. After further rain, a Flood Warning – Hastings River was posted which provided further detailed and useful information including actual river levels at all four gauge sites as well as flood predictions; the time of the next update was provided [in this instance the warning was for minor flooding]. This process took a matter of minutes. It is also possible to find the latest rainfall data from weather stations further upstream in the wider catchment, including Mt Seaview, and closer to the site at Kindee Bridge and Koree Island. It would seem to me that anyone whose livelihood and welfare is dependent on the weather could, and would, avail themselves of such useful information and when combined with observations made in their immediate locality, determine when to take appropriate action.

60. Although the applicant’s draft FERP needs amending, including making it more reader friendly, it includes an appendix indicating how to use the BOM website to find the levels of the Hastings River. The FERM must include a summary sheet/ action plan that must be permanently posted within the replacement dwelling and which clearly identifies essential actions to be undertaken at particular river levels. I am satisfied that proposed conditions of consent Part A(1), Part B - B(7), and Part F(2), which relate to evacuation procedures and the FERP are appropriate.

61. I agree with the applicant that as a replacement dwelling, the proposal places no additional burden on the capacity of the SES. Appendix N of the Floodplain Manual considers emergency response planning for floods and considers the central role of the SES. In N7.1, while the SES notes the limitations of private flood plans, in N7 it nonetheless supports the idea that owners and occupiers of premises in flood prone areas should have a plan for what they should do to prepare for and respond to flooding. Mr Thomas raised questions about the ability of future owners of the applicant’s land to comprehend the FERP. For the reasons given in [61] and [62] above, it will be clearly in the interests of the current and any future owners of the land to understand, update and implement the FERP.

62. Regarding the contested condition relating to the construction of an elevated and graded walkway, I agree with the applicant that this is unreasonably onerous in the circumstances of this being an application for a replacement dwelling. Apart from the cost of designing and constructing such a walkway and the earthworks it would entail, it would involve works on someone else’s property, for which it seems for obvious reasons, owner’s consent is unlikely to be granted. It is reasonable to expect that the works on Mr Trotter’s land would interfere with the operation of his property. Extensive and expensive modelling would be required in order to ensure that any associated earthworks, such as culverts, did not detrimentally affect flood behaviour or lead to erosion.

63. Therefore, in considering the matters in cl. 7.3(3)(a)-(e) PMH LEP, I am satisfied that in the specific circumstances of this site:

• The proposal is compatible with the flood hazard of the land; and

• It is not likely to significantly affect flood behaviours resulting in detrimental increases in the potential flood affectation of other development or properties; and

• Incorporates appropriate measures to manage risk to life from flood; and

• Is not likely to adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; and

• Is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

67. The objectives in cl. 2.4.3.5 PMH DCP are written in similar terms to the relevant flood-related objectives in PMH LEP. In order to achieve these objectives a proposal must comply with the relevant Flood Policy. While the Flood Policy is an adopted council policy and should be given significant weight, the modelling that supported its development did not include the Hastings River upstream of Bain’s Bridge and the experts essentially agree that there is a level of conjecture and uncertainty as to the appropriate flood planning level.

68. Having regard to the objectives of the Flood Policy, I am satisfied that the proposal will achieve the relevant objectives and overall will result in a reduction in risk to life and property.

69. As required by s79C(1)(d) I have considered the submissions of the neighbours who all support the proposal. It is clear that the landholders all work co-operatively to manage the flood risk. While I acknowledge that land may change hands, it would seem to me that there is likely to be enough continuity in ownership to continue current practices. However, the measures proposed and conditioned will, of themselves, reduce the risk to life and property.

Conclusions and directions

70. Having considered the relevant matters under s 79C, the expert evidence, submissions of the parties and the local residents, with the benefit of the site inspection and recognising the very particular circumstances of this proposal, I am satisfied that the appeal can be upheld and the development application DA2014/0539 for a replacement dwelling and single garage at 330 Koree Island Road, Beechwood, can be approved subject to the proposed conditions of consent with the exception that deferred commencement condition A(2) is to be deleted.

1. The parties are directed to file an electronic copy of the conditions of consent, absent deferred commencement condition A(2), in word.docx by close of business 18 August 2016. Once received, final orders will be made in chambers and exhibits returned.

Addendum made on 17 August 2016

71. In accordance with the directions made on 12 August 2016, the parties have provided the agreed conditions of consent which reflect the findings in this judgment. As a consequence, the Orders of the Court are:

1. The appeal is upheld.

2. Development Consent is granted to Development Application DA2014/0539 for the construction of a replacement dwelling with three bedrooms and a single garage at 330 Koree Island Road, Beechwood in accordance with the conditions of consent in Annexure ‘A’.

3. The exhibits other than E are returned.

_________________________

Judy Fakes

Commissioner of the Court

150671.16 Annexure A (162 KB, pdf)

Decision last updated: 19 August 2016