Gardiner v Central Coast Council

[2020] NSWLEC 1077

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gardiner v Central Coast Council [2020] NSWLEC 1077
Hearing dates:	14 January 2020, written submissions 10 February 2020
Date of orders:	25 February 2020
Decision date:	25 February 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1)   The appeal is upheld. (2)   Development consent is granted to a two lot residential subdivision, demolition of a garden shed and removal of one tree at 16 Marathon Street, Wyong (Lot 14 Section 2 DP 4361), subject to the conditions in Annexure ‘A’. (3)   The exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION — subdivision – flood affected land – whether there is a safe evacuation route – satisfaction of precondition to consent – whether the creation of an easement for evacuation is warranted.
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Coastal Management) 2018 Wyong Local Environmental Plan 2013
Cases Cited:	Michael Brown Planning Strategies v Wingecarribee Shire Council (No 2) [2019] NSWLEC 192
Texts Cited:	Australian Institute for Disaster, Resilience Flood Hazard Guideline 7-3 (Fullpoint Media, 2017) Wyong Development Control Plan 2013
Category:	Principal judgment
Parties:	Peter Wesley Gardiner (First Applicant) Nicola Jane Gardiner (Second Applicant) Central Coast Council (Respondent)
Representation:	Counsel: P Donnellan (Solicitor) (Applicant) L Nurpuri (Respondent)   Solicitors: PJ Donnelan and Co (Applicant) Central Coast Council (Respondent)
File Number(s):	2019/203486
Publication restriction:	No

Judgment

1. COMMISSIONER: The Applicant seeks consent for a two lot residential subdivision, demolition of a garden shed and removal of one tree. The works are proposed at 16 Marathon Street, Wyong (Lot 14 Section 2 DP 4361).

2. Following the expiration of the deemed refusal period the Applicant filed an appeal with the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The appeal was subject to mandatory conciliation on 14 January 2020 (34AA of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached and conciliation was terminated. With the parties consent, the proceedings were dealt with pursuant to s 34(2)(b)(ii) on the basis of what has occurred at the conciliation conference, expert evidence and written submissions.

4. Council maintains that the application warrants refusal on the grounds that the land is flood liable and that the only safe path for evacuation of residents is via an easement across the property to the rear (15 Leppington Street, Wyong).

Site and Locality

5. The subject site is rectangular in shape, has frontage of 20.12m to Marathon Street and an area of 1417m². Vehicular access to the site is from Marathon Street which has no formalised kerb and gutter or foot paving in proximity to the site.

6. The site is located within the ‘Coastal Environmental Area’ of State Environmental Planning Policy (Coastal Management) 2018, contains Class 3 Acid Sulphate Soils and is inundated with flood water in a 1% Annual Exceedance Probability (AEP) event (Exhibit B).

7. The surrounding properties are characterised by low scale residential development.

Public Submissions

8. The application was notified in accordance with Wyong Development Control Plan 2013 (DCP 2013). Two submissions in objection to the application were received by Council. The letters of objection raise the following concerns in regard to the application:

• The proposed battle-axe block is unsafe due to flooding.

• Any evacuation route should be upstream only as a person residing in the battle axe block will only be aware of flooding after their access to Marathon Street is flooded and impassable.

• The trees nominated for removal could be retained as the proposed driveway does not interfere with them.

9. This objection was subsequently withdrawn by the resident.

Planning Controls

10. Given the issues in dispute the parties agree that central to the Court’s consideration of the proposed development is cl. 7.2 in Wyong Local Environmental Plan 2013 (LEP 2013). This provision has the following terms:

7.2   Flood planning

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

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

(b)  to allow development on land that is compatible with the 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 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 behaviour 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 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.

(4)  A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this Plan.

11. As the subject site is at or below the flood planning level (cl. 7.2(2) LEP 2013), satisfaction of cl. 7.2(3) of LEP 2013 is a precondition to consent.

12. Chapter 3.3 of the DCP 2013 is also relevant to the issues in dispute between the parties.

13. In their evidence the flooding experts also make reference to the following documents:

• Wyong River Catchment Flood Study, Final Report, October 2014.

• Wyong River Catchment Floodplain Risk Management Study and Draft Plan. June 2019, Revision 4.

• Wyong Shire Local Flood Plan, State Emergency Services, 2013.

• Designing Safer Subdivisions, Guidance on Subdivision Design in Flood prone Areas, Hawkesbury – Nepean Floodplain Management Steering Committee, 2007.

• The Flood Hazard Guideline 7-3 of the Australian Disaster Resilience Handbook 7: Managing the Floodplain a Guide to Best Practice in Flood Risk Management in Australia.

Evidence

14. The town planning experts in the proceedings are Natasha Morling and Tracy Sharp, for the Applicant and the Respondent respectively. These experts met, conferenced and prepared a joint expert report.

15. Tabled at the town planning joint expert conference was amended plans and a signed letter from the property owners that adjoin the rear boundary of the subject site. That letter states:

“North 62 Pty Ltd, as the registered landowner of Lot 341 DP 557761, No. 15 Leppington Street Wyong hereby confirms that it is agreeable, in principle, subject to formal documentation and proposed compensation being acceptable to it, to the grant of an easement for emergency pedestrian access, 900mm wide, along the southern side property boundary for the benefit of Lot 14, Section 2, DP 4361, 16 Marathon Street, Wyong. An alternative emergency pedestrian access is required over No. 15 Leppington Street due to the high hazard flood affectation in the northern and southern portions of Marathon Street which in a flood event, may not allow for safe pedestrian access from No. 16 Marathon Street.”

(Exhibit D)

16. On the basis of these documents, and a Preliminary Acid Sulphate Soils Assessment of the subject site, the town planning experts have reached the following agreements:

• It is appropriate that a deferred commencement condition be imposed requiring the registration of the Emergency Right of Footway Easement prior to the consent being operational.

• That:

”the proposed Easement for Right of Footway over 15 Leppington Street, Wyong provides a safe low hazard evacuation route from both proposed lots to be created from the subdivision of 16 Marathon Street, including the additional residents and increased population, thereby minimising the risk of life and impacts upon emergency services and the community”.

(Exhibit D)

• That the Preliminary Acid Sulphate Soils Assessment of the subject site confirms there are no actual acid sulphate soils present in the area of the proposed sewer extension works. Further, they agree that an acid sulphate soils management plan is not required for the works.

• That the concept Sewer and Water Servicing Plan, prepared as part of the amended plans, demonstrates that the proposed residential subdivision will have no impact on the location and depth of the existing trunk drainage line. Further, that the provision of a 2.5m wide easement from the centreline of the pipe will be required by condition.

• That to assist in the direction of stormwater to the street, additional pits will be required in the driveway. That it is appropriate that this amendment can be imposed through a condition of consent.

• That adequate detail of the proposed parking spaces for the existing dwelling and proposed lot 1 have been provided.

• That adequate information has been provided in regards to the proposed tree removal.

17. As a result of these agreements the parties submit that the planning contentions are resolved, subject to the imposition of the conditions identified. I accept the evidence and agreements of the planning experts.

18. The flood engineering experts in the proceedings are Darren Lyons and Masahiro Kimura, for the Applicant and the Respondent respectively. These experts met, conferenced and prepared both a joint expert report (Exhibit C) and a supplementary joint report which was filed with the Court on January 29 2020.

19. In their initial joint report the flooding experts defined the scope of the remaining issues between them as:

“2.3.1 The particulars specifically relate to the lack of a safe low hazard evacuation route in the event of a flood emergency. We agree this is the outstanding contention with other flood related issues resolved.”

(Exhibit C)

20. This scope is agreed by the parties and the means of safe evacuation is the remaining issue which the Court needs to determine in the proceedings.

Evacuation through the proposed easement

21. The flood experts agree in the initial joint report that the evacuation route through the proposed easement over 15 Leppington Street, Wyong:

“lowers the flood risk in the event that Marathon Street egress was unavailable’. Further, they agree that the ‘proposed pathway and Right of Footway through 15 Leppington Street provides a safe low hazard evacuation route in the event of a flood emergency.”

(Exhibit C).

22. Following the conciliation conference the flood experts were requested to provide their expert evidence in relation to two further evacuation routes available from the subject property. The supplementary joint report focusses on the merits of potential evacuation routes from the proposed subdivision along Marathon Road. Those options are described as:

• Option 1: Evacuation along Marathon Road towards the south.

• Option 2: Evacuation along Marathon Road towards the north.

Evacuation Option 1

23. Mr Lyons and Mr Kimura agreed that:

“A low hazard evacuation route was available south along the Marathon Street pavement centreline, south to the existing concrete pedestrian footpath along the western side of Marathon Street, west along the existing concrete pedestrian footpath on the northern side of Panonia Road and west along the Panonia Road pavement centreline.”

(Expert Report, filed January 29 2020)

24. This route is referred to as evacuation route Option 1.

25. The flooding experts disagree about whether evacuation route Option 1 is safe.

26. Mr Lyons argues that the Option 1 evacuation route is safe on the following grounds:

• The relevant flood event has an effective warning time for evacuation of greater than 12 hours.

• In the unlikely event evacuation needs to occur at the very peak of the event, the Option 1 evacuation route offers safe egress.

• Existing property boundary fences, sign posts and power poles enable straight forward identification of the road pavement and the egress route.

27. In contrast Mr Kimura argues the Option 1 evacuation route is not deemed to be safe. His reasoning is:

• The length of the route is excessive requiring approximately 430m of wading due to flood waters over Marathon Street.

• The identified route is problematic:

“requiring distressed evacuees to comprehend the true flood behaviour, evacuate at the correct time period and (the) need to transition to the Marathon Street foot path to avoid intermediate flood hazard at the intersection of Marathon Street and Panonia Road.”

(Exhibit C).

• Flood waters would be likely to be muddy, contaminated and contain debris making wading unsafe.

Evacuation Option 2

28. Evacuation route Option 2 involves the provision of a footpath along the western side of Marathon Road to the north of the subject property. The route would include the construction of a slightly elevated footpath in front of the properties 18, 20 and 22 Marathon Street, following which evacuees would transition to the centreline of Marathon Street and evacuate towards Warner Avenue.

29. The experts provide the following evidence in relation to evacuation route Option 2:

“2.2.2 MK raised concerns with an elevated section of footpath creating a damming effect upon the existing stormwater management regime for 18, 20 & 22 Marathon Street, as well as the increased cover over the existing essential services within the verge. This infrastructure would be in isolation and provide limited public benefit.

2.2.2 DL considers a ~100mm profile change within the road verge would not impact on the stormwater drainage regimes in the lot, with an appropriate engineering design can be managed accordingly. Noting the significant number of other properties in Marathon Street and the locality impacted by flooding, this incremental component of the footpath network would likely benefit a broader community and can be augmented in future redevelopment by Council or other lot owners. It is noted the alternative proposed easement option offers no public benefit.”

(Expert Report, filed January 29 2020)

30. Finally, the experts agree that the climate change consideration in the flood assessment undertaken for the application appropriately represents how climate change may influence flood behaviour. They note this influence is estimated at a 0.1m increase in the 1% AEP flood levels at the subject property over an approximately 50 year timeframe.

Submissions

31. In their submissions both parties focus on the merits of the three evacuation routes and satisfaction of the precondition contained at cl. 7.2(3) of LEP 2013.

32. Mr Donnelan notes that the Respondent concludes that the state of satisfaction required by the precondition can be met by the imposition of a condition:

“‘that requires registration of an easement under s88K of the Conveyancing Act 1919 over a property to the west of the site (lot 341 in DP 557731) for the provision of an emergency pedestrian safe low hazard evacuation route prior to the issues of a subdivision certificate”

(Applicant’s written submissions 3 February 2020, p 3)

33. However, Mr Donnelan argues that, on the evidence of Mr Lyon, such a condition is unnecessary. He submits that evacuation option 1 and 2 provide satisfactory low hazard evacuation routes from the subject site in the event of a 1% AEP flood.

34. Mr Donnelan submits that the Applicant’s primary position is that the application should be approved, reliant on evacuation route option 1.

35. Further, Mr Donnelan notes that the flooding experts agree, in their supplementary joint report, that a low hazard evacuation routes is available south along Marathon Street. In response to Mr Kimura’s evidence that safety is compromised because of the length of the route Mr Donnelan submits:

• The assessment utilised by Mr Kimura is subjective and not based on any adopted policy or industry standard.

• The text, on which Mr Kimura relies, ‘Designing Safer Subdivisions’ prepared for the Hawkesbury Floodplain Management Committee, identifies that an a walking distance of 200m, but the reasoning for such a designation is not detailed in the report itself.

• That the concerns raised by Mr Kimura that safety is compromised by the flood waters being muddy, contaminated or containing debris is not related to the length of the route. A short route would contain the same risk.

36. Further, Mr Donnelan notes that the Option 1 route proposed is a length of 199.96m from the subject property to the footpath at Panonia Road. Mr Donnelan argues that it is this first length only that would require evacuating residents to wade. He notes the remaining length of the route has a flood depth of only 200-250mm.

37. Finally Mr Donnelan submits that an assessment of the merits of an evacuation route should not be considered in isolation. He argues:

“… there are factors to be taken into account such as, in this instance, the effective warning time for evacuation of this site which is conservatively 12 hours (SJR 2.1.4). It is reasonable to expect that occupiers of the site will evacuate before they are compelled to wade through flood waters at any depth upon warnings being given by the SES or other authorities; wading south along Marathon Street to safety can reasonably be considered as an evacuation measure of last resort, but Marathon Street is ‘an available route of sufficient capacity to enable the community to self-evacuate within the time available’ in relation to this development (SJR Para. 2.1.4 citing the Australian Disaster Resilience Handbook 2017).”

(Applicant’s written submissions 3 February 2020 p. 4)

38. The Applicant’s alternative position is the evacuation route to the north, Option 2. In support of the merits of this option Mr Donnelan argues:

• The Council has previously deemed ‘safe’ and approved an evacuation route from a subdivision at 24 Marathon Street.

• The distance between the subject property and 24 Marathon Street is approximately 60m. A small part of this distance (20-25m) has flood depths that exceed the 800mm benchmark for ‘low hazard’. This depth is reduced by the installation of the proposed footpath; which would be elevated by approximately 100mm (leaving a resultant flood depth of approximately 700mm).

• The Court should adopt the evidence of Mr Lyons who says the footpath can be engineered to not impact stormwater drainage of the proximate properties and a suitable condition of consent could be drafted to this effect.

• Even without the footpath the small section with waters of a depth above 800mm has no velocity – which in effect is low hazard.

The easement

39. Mr Donnelan argues that, on the basis that safe evacuation is possible via option 1 or option 2, the creation of an easement through 15 Leppington Street to provide safe evacuation is unnecessary and undesirable. His reasoning can be summarised as follows:

• There is no binding commitment from the land owner at 15 Leppington Street to grant the easement,

• In his submission, the easement would:

“constitute a burdensome encumberance on title which on close examination would discourage the grant”

(Applicant’s submission 3 February 2020, p. 5)

• If the owner does not grant the easement the development cannot proceed, contrary to the principal that flood liable land is a valuable resource that should not be quarantined from development.

• In the draft 2019 version of DCP 2013 the land is classified as Very Low Hazard. The amendments to DCP 2013 have been exhibited and are likely to be adopted. The Court should give the provisions of the draft DCP weight in the consideration of the subdivision application.

• The floor level of the future dwelling constructed will be required to be 500mm above the 1%AEP level. Further, despite having a safe evacuation route occupants are likely to stay in situ and may not be aware of or make use of the evacuation via the easement.

• If the owner fails to grant the easement, whilst the Applicant would have recourse to the Court through s 88K of the Conveyancing Act 1919, such a process would be complex, burdensome, costly and not certain. The Applicant may not be able to persuade the Court that the easement is:

reasonably necessary for the effective use or development

(s88k(1) of the Conveyancing Act)

40. Mr Donnelan expresses a view that the Court may not be able to persuade the Court that there is no satisfactory alternative to the easement given other evacuation paths exist (Applicant’s submission 3 February 2020, p. 6).

41. In conclusion Mr Donnelan notes that, notwithstanding his primary submissions, if the Court formed a view that such an easement was necessary, the Applicant would accept such a condition as part of the consent, rather than as a deferred matter (Applicant’s submission 3 February 2020, p. 7).

42. On the preceding basis Mr Donnelan submits the application satisfies the precondition in cl 7.2 of LEP 2013 and should be approved with reliance on evacuation route option 1.

43. In the alternative Ms Nurpuri submits that it is the position of the Respondent that only the option of flood evacuation through an easement over 15 Leppington Street:

“appropriately minimises the risk to life from flooding, and does not add unsustainable social and economic cost to the community as a consequence of flooding’”

(Respondent’s submission 10 February 2020, p. 5)

44. Only on this basis does Ms Nurpuri submit cl. 7.2(3) of LEP 2013 is satisfied, and consent ought to be granted by the Court.

45. Ms Nurpuri emphasises that:

“15 Leppington Street is only partially flood affected, such that once evacuees get halfway into that property, they are effectively at safe refuge.”

(Respondent’s submission 10 February 2020, p. 7).

46. She argues that the distance to get to this safety is a fraction of that required under either evacuation option 1 or 2.

47. Ms Nurpuri argues evacuation route option one is inappropriate on the following grounds:

• Irrespective of the fact it requires only 199.96 metres of wading, the overall length of the evacuation path is 430 metres which is a substantial distance.

• Approximately 200 metres of wading is likely to pose further difficulty for a resident who is elderly, physically impaired or who has young children.

• The path of travel includes uneven ground which when submerged by flood waters adds risk of trips or falls.

• The route is not direct and relies on residents knowing when to move from the centreline of Marathon Street to the street verge. If this transition is not made residents who continued along the centreline of the road would experience flood waters exceeding 800mm in depth.

48. In response to the submission that other factors should influence the Courts merit assessment of the evacuation route, Ms Nurpuri argues that the effectiveness of any evacuation warning will be affected by the mode of delivery and the time of the day. She concludes that there can be no certainty that residents will be notified with sufficient time to evacuate.

49. Ms Nurpuri argues that Court could not be satisfied that evacuation route option 2 is appropriate on three grounds. Firstly, without the concrete path wading depths would exceed 800mm, secondly an elevated footpath for a short distance (and in isolation) provides little public benefit, and finally the development application before the Court provides no details, or design, of such a footpath that would allow the Court to assess its merits.

50. In response to Mr Donnelan’s reliance on the Council approval of subdivision of land at 24 Marathon Street, Ms Nurpuri notes that its approval was:

”on the basis that the majority of the evacuation path contained water depths of less than 800mm.”

(Respondent’s submission 10 February 2020, p. 6)

51. Ms Nurpuri disagrees with Mr Donnelan’s concerns about the achievement of the easement and argues that concerns about the grant of the easement:

“ought be disregarded when considering the flood evacuation path that appropriately minimises the risk to life from flood, and that does not add unsustainable social and economic costs to the community as a consequence of flooding.”

(Respondent’s submission 10 February 2020, p. 7)

52. Further, Ms Nurpuri argues the test at cl. 7.2 of LEP 2013 is the matter in contention. Ms Nurpuri argues that the consideration of the merits of the easement is not the relevant test for the Court.

53. Nonetheless in counter to Mr Donnelan’s submissions, Ms Nupuri argues:

• It is sufficiently arguable that an easement, limited in its use to flood emergency, is reasonably necessary.

• The proposed easement would be located in the side setback of 15 Leppington Street, an area that would not otherwise be developed.

• The amount of compensation payable in exchange for the easement is unlikely to be more than minimal.

• (Respondent’s submission 10 February 2020, p. 7)

54. On the preceding basis Ms Nupuri argues the Court ought to refuse the application (on the basis that cl. 7.2 of LEP 2013 is not met), or impose a condition requiring the Applicant to obtain an easement over 15 Leppington Street, which in her submission satisfies the precondition.

Findings

55. The Court has previously considered the terms of the standard template Flood Planning clause in Michael Brown Planning Strategies v Wingecarribee Shire Council (No 2) [2019] NSWLEC 192 (Michael Brown v Wingecarribee). The Court found in Michael Brown v Wingecarribee that the terms of the Flood Planning clause (in that case cl. 7.9 of the local environmental plan) acts as a precondition to consent the terms of which the terms of each subclause must be satisfied.

56. Relevantly in the current appeal the Court is required, at cl.7.2(3) of LEP 2013, to be satisfied that the development:

1. is compatible with the flood hazard of the land, and

2. is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

3. incorporates appropriate measures to manage risk to life from flood, and

4. is not likely to significantly 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

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

57. There is no contention, or evidence before the court, that argues that the proposed development will adversely affect flood behaviour and detrimentally impact the flood affectation of other properties or developments. Further, there is no contention, or evidence, that the proposed development would result in significant adverse effects to the environment or cause erosion or siltation.

58. Notwithstanding the need for the Court to establish positive satisfaction with each, the subclauses of the precondition in contest are cl. 7.2 Flooding (a), (c) and (e).

Is the development compatible with the flood hazard of the land?

59. I have read the ‘Flood Risk Assessment’ prepared in support of the development application by BMT Eastern Australia Pty Ltd, dated February 2019. I note that the existing dwelling on the subject lot, which is to be retained, has a floor level above the flood planning level (Exhibit C). Proposed Lot 2 has a lower flooding characteristic than the remaining lot with frontage to Marathon Street. Further, any new dwelling on proposed Lot 2 would be required to have a floor level at the Flood Planning level (the 1% AEP + 500mm freeboard).

60. On the basis of the flood risk assessment, and the two expert reports prepared by the flood engineers, I am satisfied that subdivision of the land is compatible with the flood hazard of the land. I note it is the flooding expert’s position that with the exception of whether the site has a low hazard evacuation route in the event of a flood emergency all other flood issues are resolved. I accept their evidence.

Does the development incorporate appropriate measures to manage risk to life?

61. In my view, the relative merits of the positions of the respective parties turn on two questions: firstly, what is a safe depth of water and distance for residents to wade to safe ground? And secondly, what is the context in which such a decision to evacuate will occur? These questions are inherent in the submissions of both parties.

62. Relevant to Option 1 the Applicant’s Flood Risk Assessment notes in relation to peak flood conditions:

“The spilling of flood waters over Panonia Road generates a flood gradient along Marathon Street of around 0.2m between Panonia Road and the site. Modelled peak velocities along Marathon Street are in the order of 0.5 to 1 m/s, with lower velocities of 0.1 and 0.5m/s within the adjacent lots.”

(Flood Risk Assessment’ BMT Eastern Australia Pty Ltd, February 2019. p 3)

63. At times of flood, evacuation route option 1 takes residents into flood waters of faster velocity than that experienced on the subject site. I accept and adopt Mr Kumira’s evidence at paragraph [27] that a wading distance of approximately 430m through flood waters over uneven ground is not an appropriate measure to achieve evacuation from the subject site. Further, I accept that such flood water may contain debris and other contaminants.

64. I am not persuaded by Mr Lyons reliance on effective warning time for residents of greater than 12 hours to conclude that it is unlikely residents would be evacuating near the peak of the flood. A review of the Wyong Shire Local Flood Plan, produced by the State Emergency Services (SES) and tendered as part of Exhibit A, notes that a number of residents are likely to stay in situ despite the issue of either evacuation warnings or directives from the SES. It is unpredictable at what time residents would become aware of the flood risk and how they would respond to it.

65. Further, I accept the submission of Ms Nurpuri that the effectiveness of such warnings will depend on the time of day and the mode of delivery. It is self-evident that at night residents are less likely to be alert to the warnings provided over radio or local television broadcasts.

66. I have also given weight to the Flood Risk Assessment which notes that whilst flood warning systems do exist for Wyong River the rate of flood waters rising is rapid once the river is breached:

“The rate of rise of on-site flooding is relatively quick, with flood waters approaching their maximum depth within one hour of Panonia Road being over topped by Wyong River.” (emphasis added)

(Flood Risk Assessment’ BMT Eastern Australia Pty Ltd, February 2019. p 6)

67. The evidence of the flood experts concludes that conditions for wading become unsafe as depth or velocity increases. Figure 3 and 4 of the Flood Risk Assessment indicates that part of both evacuation route 1 and 2 have a hazard categorisation of ‘H3’.

68. By reference to the Flood Risk Assessment, H3 is noted as ‘unsafe for vehicles, children and the elderly’ (Chart 1 Flood Risk Assessment’ BMT Eastern Australia Pty Ltd, February 2019. p 4). The relevant chart is extracted below.

Flood Risk Assessment’ BMT Eastern Australia Pty Ltd, February 2019.

69. Applying this categorisation to the subject site evacuation via the proposed evacuation routes 1 or 2 is restricted to able bodied adults.

70. I note that the categorisation of the risk groupings is adopted from The Flood Hazard Guideline 7-3 of the Australian Disaster Resilience Handbook 7: Managing the Floodplain a Guide to Best Practice in Flood Risk Management in Australia (Flood Hazard Guideline). The Flood Hazard Guideline argues that if the hazard assessment is required as the basis of an evacuation plan, then a hazard analysis should be guided by vulnerability curves specifically for people stability and vehicle stability to assess the suitability of various evacuation routes.

71. The Flood Risk Assessment concludes that the flood waters at H3 in Marathon Street would be safely navigated by adults but consistent the Flood Hazard Guideline, not children or the elderly who are excluded from the H3 category. I accept the submission of Ms Nurpuri that approximately 200 metres of wading is likely to pose difficulty for a resident who is elderly, physically impaired or who has young children.

72. I find that I cannot be satisfied that evacuation route option 1 is safe on the preceding grounds.

73. Evacuation route option 2 also relies on wading of residents through flood waters of in the region of 800mm depth, notwithstanding the construction of a short length of footpath and the use of the elevated verge (Exhibit 5). The H3 category would also apply to this section of the evacuation route. On the preceding logic I also find this evacuation route to be an inappropriate measure to manage risk to life from flood.

74. Without a safe evacuation route the risk remains that either residents will attempt evacuation in waters of depths which the guidelines conclude are unsafe and require rescue or worse, or residents will stay in situ and requiring rescue when a formal evacuation order is issued. I am satisfied that creating a subdivision (with an addition lot) in circumstances which have a likelihood of increasing the burden on community volunteer resources (in particular SES) is inconsistent with the precondition at cl. 7.3(e) of LEP 2013.

75. However, I am persuaded that with the creation of an evacuation route to the rear of the subject lot (Lot 14 Section 2 DP 4361) into 15 Leppington Street and to higher ground does satisfy the precondition in cl, 7.2 of LEP 2013. My reasoning is as follows:

• It will benefit and provide a safe evacuation route for both of the proposed lots, in fact improving the safety of the existing dwelling and generating a positive benefit from the development.

• Once residents are within Leppington Street they are heading away from the flood risk and towards higher ground due to topography.

• Imposing the requirement for the creation of the easement is an appropriate measure to manage risk to life from the specific flood risks of the property.

76. In response to the submissions of Mr Donnelan in relation to the complexity and prospects of the creation of the easement, I accept the submission of Ms Nurpuri that the consideration of the merits of the grant or otherwise of the easement is not the relevant test for the Court in these proceedings.

77. Given the importance and consequences of the evacuation route I am not persuaded it is appropriate for it to be an operation condition to be satisfied prior to subdivision certificate.

78. I prefer and accept Ms Nurpuri’s submission, and the agreed evidence of the town planning experts, that a deferred commencement condition is appropriate. I am satisfied that the documentation before the Court is appropriately certain for the imposition of such a deferred commencement condition, including the signed letter of intention from the property owners of 15 Leppington Street, and the plan of proposed easement prepared by the Applicant.

79. However, giving weight to the submissions of Mr Donnelan I am persuaded that a period longer than the standard 12 month period is appropriate. I find that a period of 24 months for the satisfaction of the deferred commencement consent is appropriate.

80. There being no other contentions between the parties, and having completed a merit assessment of the application, I am satisfied it is appropriate to grant consent to the subdivision, subject to the conditions detailed in Annexure ‘A’.

Orders

81. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to a two lot residential subdivision, demolition of a garden shed and removal of one tree at 16 Marathon Street, Wyong (Lot 14 Section 2 DP 4361), subject to the conditions in Annexure ‘A’.

3. The exhibits are returned.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (74.9 KB)

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Decision last updated: 26 February 2020