Giacometti v Inner West Council

[2021] NSWLEC 1438

Land and Environment Court

New South Wales

Medium Neutral Citation:

Giacometti v Inner West Council [2021] NSWLEC 1438

Hearing dates:

20 April 2021 – 21 April 2021

Date of orders:

2 August 2021

Decision date:

02 August 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

1. The appeal is dismissed.

2. Development application D/2019/227 for alterations and additions to existing dwelling house to facilitate conversion into three (3) separate residential units, and associated works, including fencing and landscaping works and demolition of a shed at 64 Hubert Street, Leichhardt, is determined by way of refusal.

3. All exhibits are returned except Exhibits A, B, H, J, L and 8.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – flooding impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Leichhardt Local Environmental Plan 2011, cll 1.2, 4.3, 4.3A, 4.4, 5.21, 6.1, 6.2, 6.3, 6.4, 6.8

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Flood Plain Development Manual, April 2005

Building Code of Australia, Section 3.10.3

Leichhardt Development Control Plan 2013, Section E 1.3.1

Category:

Principal judgment

Parties:

Carlo Giacometti (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T To (Counsel) (Applicant)
S Turner (Respondent)

Solicitors:
Navado Legal and Financial Group (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/56047

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), has arisen as a result of the actual refusal by Inner West Council of development application D/2019/227, for alterations and additions to an existing dwelling-house to facilitate conversion into three separate residential units, and associated works, including fencing and landscaping works and demolition of shed at Lot 1-2 Section 6 DP 1102, known as 64 Hubert Street, Leichhardt (the site).

2. The site is identified by the Council as a Flood Control Lot, meaning that it is located within an area of flood risk. It is this flooding, and the subsequent flood risk to life and property, measures to manage the risk to life in the event of a flood, and the compatibility of the proposed development with the flood function and behaviour on the land, that forms the basis of these proceedings.

3. For the following reasons, I have determined that development consent cannot be granted and this appeal is to be dismissed.

The site and its context

4. The site is located on the northern end of a suburban block, with street frontage to Hubert Street to the east and Darley road to the north, and an access lane to the west (rear of the site). The site area is 345.5m² and is rectangular in form, with a 12.19m frontage to Hubert St and 30.48m frontage to Darley Road.

5. Currently on site is an existing two-storey brick freestanding dwelling. Although addressed as Hubert Street, the primary building entrance is from Darley Street, adjacent to a double-width vehicle crossover. A second single-width vehicle crossover exists on Hubert Street.

6. The site is located on the northern edge of an R1 zone which consists of a mix of one and two storey dwellings of varying ages and styles. A B2 zone is situated across Darley Road to the north, with the light rail and City West Link road beyond. The immediate B2 zone is occupied by a 2-3 storey warehouse currently in use as a Dan Murphy’s liquor outlet.

Planning framework   

7. The following planning instruments are relevant in the assessment of this development application:

State Environmental Planning Policies (SEPPs)

• State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Leichhardt Local Environmental Plan 2013

8. The relevant aims of the Leichhardt Local Environmental Plan 2013 (LLEP). are as follows:

1.2   Aims of Plan

…

(2)  The particular aims of this Plan are as follows—

…

(b)  to minimise land use conflict and the negative impact of urban development on the natural, social, economic, physical and historical environment,

…

(e)  to protect and enhance the amenity, vitality and viability of Leichhardt for existing and future residents, and people who work in and visit Leichhardt,

(f)  to maintain and enhance Leichhardt’s urban environment,

…

(u)  to promote energy conservation, water cycle management (incorporating water conservation, water reuse, catchment management, stormwater pollution control and flood risk management) and water sensitive urban design,

(v)  to ensure that existing landforms and natural drainage systems are protected,

(w)  to ensure that the risk to the community in areas subject to environmental hazards is minimised,

9. The site is located within Zone R1: General Residential under the LLEP, and development for the purpose of residential flat buildings is permitted with consent. The relevant zone objectives are:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

…

•  To improve opportunities to work from home.

•  To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

•  To provide landscaped areas for the use and enjoyment of existing and future residents.

…

•  To protect and enhance the amenity of existing and future residents and the neighbourhood.

10. There is no height of buildings standard that applies to the site under LLEP cl  4.3.

11. LLEP cl 4.3A(3)(a)(ii) requires the development to include landscaped area to 20% of the site area. The landscape plan demonstrates the proposal to have a landscaped area to be 45.5%. Clause 4.3A(3)(b) requires site coverage to not exceed 60% of the site area. The proposed development has a site coverage of 37%.

12. Pursuant to LLEP cl 4.4(2B)(c), the applicable maximum floor space ratio (FSR) for this site is 0.6:1. The proposal has an FSR of 0.54:1.

13. The site is classified as a Flood Control Lot on the Flood Control Lot Map of the LLEP. Clause 5.21 is a jurisdictional prerequisite on which the Court must be satisfied and is contended by the parties. Details of the flood condition and my satisfaction in relation to this prerequisite are provided in the relevant discussion in this judgment. LLEP cl 5.21 reads:

5.21   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 flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c)  to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d)  to enable the safe occupation and efficient evacuation of people in the event of a flood.

(2)  Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a)  is compatible with the flood function and behaviour on the land, and

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c)  will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3)  In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a)  the impact of the development on projected changes to flood behaviour as a result of climate change,

(b)  the intended design and scale of buildings resulting from the development,

(c)  whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d)  the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4)  A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5)  In this clause—

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.

flood planning area has the same meaning as it has in the Floodplain Development Manual.

Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.

14. LLEP cll 5.21(2)(a), (c) and (d) are contended, and I accept the Applicant’s submission that, as the proposed development involves the re-use of an existing building, it will have no impact on flood behaviour or other matters identified in LLEP cll 5.21(2)(b) and (e).

15. Pursuant to LLEP cl 6.1 and the relevant Acid Sulfate Soils Map, the site is classified as Class 5. I am satisfied based on the information provided in the Statement of Environmental Effects (SEE) and the Respondent’s submission that the site is not located within 500m of Class 2 land, nor does it involve works below 5m AHD, and will not lower the water table below 1 meter AHD. An Acid Sulfate Soils Management Plan is therefore not required.

16. The development does not propose earthworks for the purpose of LLEP cl  6.2(3).

17. LLEP cl 6.3 Flood Planning is referred to in all documentation and evidence for this development application and appeal, however after the conclusion of the hearing but prior to judgment being handed down, this clause was repealed and replaced with alternative flood planning controls at LLEP cl 5.21, as outlined above. Subsequently, this judgment refers to the provisions of the current cl 5.21, not the repealed cl 6.3.

18. LLEP cl 6.4 Stormwater management also applies to this site, and based on the joint report of stormwater experts I am satisfied that the development meets all requirements of cl 6.4(3).

19. Pursuant to LLEP cl 6.8 Aircraft Noise, the site is located on land near Sydney (Kingsford Smith) Airport and in an ANEF contour greater than 20 or greater. Based on the Aircraft Noise Assessment in the Class 1 Application I have considered the requirements of LLEP cl 6.8(3) and am satisfied that the relevant indoor design sound levels can be met in the proposed development.

Leichhardt Development Control Plan 2013

20. The Leichhardt Development Control Plan 2013 (LDCP) must be considered in the assessment of this development application. The relevant parts are discussed further in the following judgment.

21. The development application was notified in accordance with the LDCP and no submissions were received. No further submissions were made as part of these proceedings.

Issues and evidence

22. Prior to the hearing on 19 November 2020, the Court granted leave to rely on amended documents including a Flood Risk Management report, architectural plans, stormwater drainage concept plan, BASIX plan, and landscape plan.

23. Subsequently, at the commencement of this hearing, the remaining contentions can be summarised as unacceptable flood risk and public interest. I note that the stormwater contention raised in the Amended Statement of Facts and Contentions (Exhibit 1) is resolved by the joint report of stormwater experts and is not pressed, and the inadequate information contention was resolved in the course of proceedings.

24. The principal contention is one of flood risk. Specifically:

• Does the proposed development minimise the flood risk to life and property associated with the use of land?

• Is the proposal compatible with the flood function and behaviour of the land?

• Would the proposal set an acceptable precedent, and is it in the public interest?

25. The flooding experts providing evidence in relation to these issues are Mr Joe Bacha for the Applicant and Mr Sean Howie for the Respondent.

Current use of the dwelling

26. Prior to discussing the parties’ positions on flood impacts, it is necessary to understand the configuration and use of the existing building on this site. The chronology of events, as far as I understand, in relation to development on this site is as follows:

1. On 7 December 1976, development consent was granted for a three bedroom, single dwelling (Building application No. 15041, Exhibit 8). Construction of this single dwelling was completed by 1979 (Exhibit 8).

2. On 24 August 1988, development consent was granted for alterations and additions to the existing dwelling-house to create a residential flat building comprising 3 units, D.A. 241/88 (Exhibit H). Council contends that this consent has lapsed (see below).

3. On 5 June 1991 a Building Certification was issued, BC 161/91, which legalised building works to this dwelling (Exhibit J, Annexure A). This certificate refers to an inspection report dated 4 June 1991 which has not been provided to me. The certificate also classifies the building as Class II, which is defined in Ordinance No. 70 (Exhibit G) as ‘buildings containing two or more flats’. This certificate makes no reference to D.A. 241/88, and does not contain any drawings or details of the configuration of the building at the time of certification.

4. In 1991, following the building works that are the subject of the 1991 Building Certificate, the property was occupied as three separate units by various generations of the Giacometti family. Appended to Mr Giacometti’s affidavit (Exhibit J) are photographs of three meters and separate utility bills dated 6 September 2007 which refer to units 1, 2 and 3 of 64 Hubert Street. Mr Giacometti states in Exhibit J that the building has been used as three units since 1991 (pars 10-19).

5. On 20 June 2019, development application D/2019/227 for “alterations and additions to existing dwelling house to facilitate conversion into three (3) separate residential units, and associated works, including fencing and landscaping works and demolition of a shed” was submitted to Council. This application forms the basis of these proceedings.

27. The Council submits that the 1988 consent to convert the single dwelling into three units has lapsed and that the use of this building as three apartments is not legal. Although the Applicant disagrees with Council’s position, for the reasons given in Mr Giacometti’s affidavit at par 9 they do not wish to agitate this issue in these proceedings, and do not rely on the 1988 modification consent.

28. Assuming Building Certificate 161/91 is enforceable and that the existing structure on site consists of three separate apartments, the intent of the development application that is the subject of this appeal is to obtain consent for minor alterations to this existing configuration and use of the building as three apartments.

29. Subsequently, the Class 1 application that forms the basis of these proceedings is for alterations and additions to an existing dwelling-house to facilitate conversion into three separate residential units. The floor plans of the existing building in the development application (Drawing 0909-02 and 03 by Brad Inwood Architects, Exhibit 7) do not document three apartments, but show a single dwelling with five bedrooms. This is two bedrooms more than the original 1976 consent, and the additional two are located on the ground floor. The documentation in the Class 1 application consistently refers to the conversion of a single dwelling, not alterations and additions to an existing residential flat building, and the Statement of Environmental Effects states on page 3 that “presently on the site is an existing two storey, free standing dwelling…which was built most likely around 1980. There has [sic] been no additions or renovations to the site.”

30. It is the Applicant’s position that the legality or lack thereof of the 1988 alterations and additions is irrelevant to these proceedings. Mr To submits that as the building has been occupied for over thirty years as three residential flats, not one dwelling, this factually demonstrates that there is no intensification of use resulting from this application.

31. The Respondent’s position is that the development application, in requesting consent for the conversion of a single dwelling to three apartments, demonstrates a concession by the Applicant that there is no current legal use of the building as three units despite a building certification authorising the structural modifications. I accept this position and, subsequently, that I must consider the development application in the context of the current legal and planning framework at this point in time. It is therefore my position that the proposed development, requesting the conversion of one dwelling into three, does result in an intensification of use on this site.

The existing flood hazard of the land

32. The site is identified by the Council as being at risk of flooding. The Council’s Property Flood Level Information Report (Flood Certificate) shows the site as a Flood Control Lot that is entirely within the 1:100 year ARI flow path extent, with two areas at the east and west of the site identified as 1:100 Year ARI High Hazard. The Flood Certificate demonstrates that this site may be entirely bounded by ‘high hazard’ flooding in a 1:100 year event. ‘High Hazard Category’ is defined in the LDCP glossary as “…a hazard where there is potential danger to personal safety; evacuation by trucks is difficult; able bodied adults would have difficulty in wading to safety; and there is potential for significant structural damage to buildings.”

33. Mr Howie submits in the Flood Risk Witness Joint Report (the joint report) that the potential flooding could be characterised as flash flooding with limited to no warning available.

34. The flood planning level (FPL) that applies to this site is 900mm above existing ground surface levels at RL 5.15 AHD. Mr Howie states in the joint report that the 1:100 year ARI flood event peak flow depth through the subject property is 400mm.

35. The Applicant submits that the flood risk is not necessarily correctly described by Council, noting that the Flood Certificate is said to have been derived from the Draft Leichhardt Flood Study, not the now adopted Leichhardt Flood Study, which was adopted after the issue of the flood certificate. The manner of derivation from the draft study is unknown and Mr Howie was unable to clarify this process under cross examination.

36. The Applicant submits that the site has not flooded since 1979. Mr To further submits that there is a high likelihood that a 1:100 year flooding event has occurred recently in this area, and that during this event no flooding occurred on the site. Mr To applied evidence from the Bureau of Meteorology (Exhibit L) which indicates that from 19-23 March 2021, all four of the closest weather stations to the site- Canterbury Racecourse AWS, Concord (Brays Road), Concord Gold Club and Sydney Observatory Hill- recorded rainfall that was at least a 100 year ARI event. Although no weather station exists in close proximity to the subject site, the Applicant submits that this evidence indicates a likelihood that the locality of the site was subject to a 1:100 ARI or greater flooding event at this time. This is supported by the affidavit of Mr Giacometti (Exhibit J) in which he states that, although localised flooding occurred over the course of 19-23 March, the site itself did not flood. He further submits that in the time his family has occupied the site since 1979, the dwelling has never flooded.

32. To further support the Applicant’s position on the accuracy of the flood certificate, Mr To highlighted that the precedent developments on Charles Street, to which I was taken on site, have all been built with elevated floor levels to the relevant FPL. However, he notes that although these properties are downslope from the subject site, their respective FPLs are lower than the level identified on the subject site.

33. In relation to the accuracy of the Flood Certificate, no expert evidence is presented on whether the specific site or the local area has experienced a known 1:100 year ARI flood event since the Giacometti family have resided at 64 Hubert Street, and so no expert concurrence of the evidence in Mr Giacometti’s affidavit is given. Although extreme weather was undoubtedly recorded at various locations in Sydney in March 2021 (as per Exhibit L), other factors beyond rainfall can affect whether a site reaches peak flood levels, and so in my opinion, Exhibit L does not confirm whether a 100 year ARI event has recently occurred at or in close proximity to the subject site. Additionally, I have not been furnished with the relevant flood certificates for the neighbouring sites on Charles Street, nor has expert evidence on the impact of localised landform on flood levels been provided.

34. Further, the parties concur that the Leichhardt Flood Study has accounted for the impacts of climate change in its modelling, and that the impacts of climate change may result in variations to flood levels from that which is currently experienced. From this, I note that Mr Giacometti’s lived experience to date may not necessarily match the future flood hazard. Although the Applicant submits that the flood risk is overstated on the Flood Certificate, I accept, due to the lack of alternative expert evidence and the potential variations resulting from climate change, that the Flood Certificate must be relied upon and the hazard is at the level identified by the Council.

The flood risk of the proposed development

40. The proposed development has one unit on the ground floor (Unit 1) and two on the first floor (Units 2 and 3). The primary access for all units, and the finished floor level (FFL) of Unit 1, is set at RL 4.06m which is 760mm below the FPL of RL 5.15. All units are accessed from the common stairwell, which also leads to the garage. The first floor is set at FFL 6.76, 1.61 metres above the FPL.

41. The ground level of the existing building has several points of vulnerability where floodwaters may ingress: the front door and adjacent sliding door facing Darley Road; the entrance to the building from the garage; existing windows to the ground floor, and; existing vents and openings within the building fabric. The proposed development involves substantial reuse of this existing structure, and so relies on modifications to the ground level to mitigate flood risk.

42. The proposed development subsequently incorporates several measures to the ground level of the building to manage the risk to life from flood. These are:

• The provision of self-closing flood barriers at the front door to Darley Road, in front of the sliding door facing Darley Road, and at the entrance to the building from the garage.

• All vents and openings in the building fabric below the FPL will be filled in.

• All windows will be raised above the FPL.

• The building will be waterproofed up to the FPL.

• Conditions are to be imposed that require the building to be inspected, assessed, and certified by a suitably qualified structural engineer, and any subsequent recommendations to be fully executed prior to the issue of an occupation certificate. Details of structural modifications are outlined in the supplementary structural report which was filed in the course of proceedings and forms Exhibit K.

• Materials are to be selected that ensure the structural integrity of the building when subject to immersion and the impact of velocity and debris.

• All works are to be designed to comply with the Standard for Construction of Buildings in Flood Hazard Areas in accordance with Section 3.10.3 of the Building Code of Australia.

43. A flood evacuation plan which includes a flood alarm and a ‘shelter in place’ strategy has been recommended for the development proposal in the Flood Risk Management Report (Exhibit 3, Appendix 3), whereby in a flood event the occupants of Unit 1 use the common stairwell to access the landing on level 1, where they will shelter above the flood level. A further condition is proposed whereby a place of shelter must be provided that is above the Probable Maximum Flood Level, accessible by all occupants and visitors of the dwelling and has direct access to external area(s) of the dwelling for evacuation from the building.  

Evidence of the flooding experts

44. The fundamental question to which the experts are responding is whether the proposed flood mitigation measures are an acceptable alternative to the LDCP requirement to raise all floor levels above the FPL, and whether these measures appropriately manage risk to life in the event of a flood as required by LLEP cl 5.21(d). The development controls for flood risk management are set out in the LDCP in section E1.3.1 Flood Risk Management.

45. Objective O1 of LDCP Section E1.3.1 is:

“To manage development of flood control lots and flood prone land to reduce the risks and costs associated with flooding.”

46. LDCP Section E.1.3.1 Control C3 states:

“Multi Unit Residential Development for 3 or more Dwellings

C3    All floor levels are to be at or above the Flood Planning Level.”

47. LDCP Section E.1.3.1 Control C8 states:

“Land with a High Hazard Category

C8    If a development is identified in the Flood Risk Management Report as being in a High Hazard Category, the development must demonstrate that:

a. there is no net loss in flood storage and floodway area as a result of the development;

b. the development will not increase velocity, volume or direction of flood waters;

c. for subdivisions, that there are adequate building platforms or developable areas including car park facilities and access which are not affected by the High Hazard Category;

d. the underside of all new floors are above the Probable Maximum Flood Level or Flood Planning Level, whichever is the highest, and all structures designed to withstand the High Hazard condition;

e. the principle entries to all dwellings and common areas are located above the Probable Maximum Flood Level or Flood Planning Level, whichever is the highest, and an evacuation route is provided clear of the floodway;

f. Basement (below natural ground level) car parking is only permitted where all access and potential water entry points are above the Probable Maximum Flood Level or Flood Planning Level, whichever is the higher, and a clearly signposted flood free pedestrian evacuation route is provided from the basement area separate to the vehicular access ramps; and

g. parts (d) and (e) are subject to compliance with other relevant requirements in the Development Control Plan residential controls.”

48. Both experts accept that the proposal does not meet the requirements of LDCP control E1.3.1 C3, for all floor levels are to be at or above the FPL, because Unit 1 is below the FPL.

49. With reference to LDCP control E1.3.1 C8, both experts agree that, due to the building footprint remaining unchanged, subclauses (a) and (b) are achieved and (c) and (f) do not apply. The relevant subclauses in dispute are subclause (d) and (e).

50. Mr Howie is of the opinion that as the site is affected, even in part by High Hazard Category flooding, that the underside of all floors should be above the FPL and the structures designed to withstand the high hazard condition as per E1.3.1 C8 subclause (d). He further submits that as the principal entry to the building is below the FPL and no evacuation route is available clear of high-hazard flooding, that the requirements of subclause (e) are also not met.

51. In Mr Howie’s further opinion, because of the non-compliance with LDCP E1.3.1 C3 and C8 (d) and (e) the development presents an unacceptable flood risk and should be refused. He states that the Council has applied a consistent approach to development in the area, requiring strict compliance with this control. He further states that Council has deemed the ad-hoc application of flood barriers and alternative flood management systems is not an acceptable alternative in this location, and this is demonstrated in the unequivocal wording of control E1.3.1 C3. In Mr Howie’s opinion, a ‘shelter in place’ strategy that requires initial navigation through floodwater should be a last resort rather than a fundamental aspect of managing the risk to life.

52. In relation to the intensification of use on the site, Mr Howie states that as the proposed development increases the use on site from one dwelling to three, it increases the density on a flood-affected site, which directly contravenes LLEP objective cl 5.21(1)(a) to minimise the flood risk to life and property associated with the use of land.

53. Mr Howie concludes that, in his opinion, the proposed development does not minimise the flood risk to life and property, is not compatible with the flood hazard of the land, thereby contravening the requirements of LLEP cll  5.21(1)(a) and (b), and (2)(a).

54. In response, Mr Bacha is of the opinion that because this application re-uses an existing building, it is impractical and unfeasible to raise the ground floor level as required by LDCP control E1.3.1 C3 and that the proposed flood mitigation measures adequately manage the flood risk. Mr Bacha also states that the risk for the ground floor occupancy has been improved in this proposal by reducing the number of bedrooms from two to one from the current use, as required by LLEP cl 5.21(1)(a).

55. Regarding LDCP control E1.3.1 C8 (d) and (e), Mr Bacha is of the opinion that the area of High Hazard Category flooding is a minor encroachment within the site, and that the residential building is outside this hazard designation. He submits that the flood barriers provide an appropriate and acceptable risk mitigation measure as they reduce the exposure to those within the building and allow occupants time to take shelter, in accordance with LLEP cl  5.21(2)(c) and (d) and (3)(c).

56. The suitability of flood barriers, waterproofing and structural reinforcement in lieu of raising the ground floor level is not guided further by either the LLEP or LDCP, and is a matter of expert opinion.

57. Mr Bacha submits that flood barriers are widely adopted outside of the Inner West local government area, and a reliable alternative to raising floor levels. In his experience, flood gates should be maintained once a year.

58. In response, Mr Howie submits that flood barriers are only effective if they are fully maintained and operable, and that because the onus is placed on future owners to understand and ensure this occurs, this represents an unacceptable risk. Put simply, in Mr Howie’s opinion, a flood door only stops floodwaters if it is closed whereas an elevated building will always be above the floodwater, and the latter is therefore a superior approach. He concludes that the application of flood barriers does not represent appropriate measures to manage risk to life in the event of a flood, and contravenes LLEP cl  5.21(2)(d) and (3)(c).

59. In cross examination, Mr To put to Mr Howie that the objective of LDCP E1.3.1 may be achieved through the application of the proposed flood mitigation measures, and that subsequently LDCP E1.3.1 C3 should be applied flexibly, as per EPA Act s 4.15(3A). In response, Mr Howie maintains that the ad-hoc approach to flood mitigation, and the reliance on mechanical, operable systems, does not suitably reduce the risk associated with flooding. Furthermore, in his opinion the burden of the ongoing cost of maintenance of these systems for future owners is contrary to this objective.

60. The Applicant also put to Mr Howie the question of whether, if the existing use of three units was permitted, the use of flood barriers would be acceptable. I do not consider this a relevant question given my previously stated position on the relevance of the historic illegal use of the building to these proceedings.

61. Mr Howie makes several further submissions in relation to the inconsistency of the development proposal with the FDM. In relation to this, the Applicant submits that Mr Howie’s evidence fundamentally and incorrectly elevates the FDM to the status of a governing document that is equal to or greater than the LLEP. The Applicant further submits that the purpose of the FDM is to establish a process-oriented framework to guide Councils in evaluating flood risk and developing flood management plans, with the outcome being the formation of flood controls in the relevant planning instruments such as the LLEP and LDCP. It is therefore these local planning controls, not the FDM, that should be the focus of the assessment. As the Applicant submits, the FDM may be taken into account as the guiding document for the formation of the DCP flooding controls, however it is not a mandatory consideration. I accept the position of the Applicant on this issue and note that the primary statutory consideration in relation to flooding is the LLEP, and the primary non-statutory consideration the LDCP.

Development precedent

62. The Respondent contends that approval of this development application would set an undesirable precedent that is not in the public interest. They submit that the Council has applied a consistent approach to development assessment on Flood Control Lots, and the approval of this application would erode that consistency and result in subsequent applications incorporating the same, inappropriate flood mitigation measures. Further stated implications include the social cost of increased flood-related stress to future occupants, the demand on emergency services during a significant flood event, and the social inequity resulting from owners having no available options to reduce their flood risk exposure in the future.

63. To demonstrate the Respondent’s position that the Council has been consistent in their application of section E1.3.1 of the LDCP, at the site visit I was directed to view several nearby properties which have been built with elevated floor levels and open style subfloors in response to flooding. I was subsequently taken to the consent for each of these properties by the Respondent during proceedings to provide further detail on the relevant flood risk mitigation measures.

64. I note the Applicant’s submission that none of the precedent developments presented by the Respondent are relevant as none are directly comparable. Most of the examples given are new-build developments rather than alterations and additions and, in the one case of re-use it involves a warehouse structure, not an existing dwelling.

65. I further note that one of these developments, 62 Goodsir Street, Rozelle, involves the partial retention of a ground floor at a level below the FPL. This was justified in the development assessment on heritage grounds.

66. No equivalent development precedent is given of the conversion of a dwelling house to a residential flat building. Mr To states that this indicates no conflict with the established development precedent, particularly given the historical use of the property as separate flats. All the precedents put forward are residential and the majority are new-build structures. Mr To argues that an application for alterations and additions, rather than new-build, should be assessed differently and that the practicality of the re-use of the existing structure should be considered. He submits that, in this case, it is impractical to elevate the ground floor to above the FPL if reusing the existing structure, as it would either be structurally unfeasible or result in the loss of Unit 1 from the development proposal.

67. Based on the site view and evidence of the corresponding approvals, I accept the Respondent’s submission that the Council, with the exception of one portion of a heritage dwelling, have taken a consistent approach to requiring elevated floor levels to residential developments with flood risk in the vicinity of the subject site. I further accept, given the concerns raised in relation to the ad-hoc application of alternative solutions and the fallibility of flood barriers in this instance, that the established precedent of raising the floor levels above the FPL is the most appropriate way to manage flood risk in this area, and allowing alternative solutions dilutes this approach. Given the primary impact of flood risk is to either life or property, I accept that approval of this development application would set an undesirable precedent that is not in the public interest.

Findings

68. The proposed development for the conversion of an existing dwelling house into three (3) separate residential units results in an intensification of use on a flood control lot in an area of high hazard category flood risk. The historical illegal use of the building as three separate units is of no relevance to my assessment, which is made on the basis of the requested conversion of a single dwelling into three units, and in the context of the current legal framework.

69. In intensifying the use of the site from 1 dwelling to 3, with one of those units below the FPL, I accept the Respondent’s position that this application does not minimise the flood risk to life and property, and is not in accordance with the objective LLEP cl 5.21(1)(a).

70. I accept the Respondent’s position that, in the absence of any expert evidence confirming the occurrence or not of a 1:100 ARI flood event on or near this site, the Council’s Flood Certificate is to be relied upon. This certificate may not necessarily represent the historic flood condition of the site but does represent the current and projected future flood risk.

71. Despite submissions that the risk to life and property from flood is reduced through the removal of one ground level bedroom, I note the building only has permission for the use of three bedrooms on the first floor as part of the original dwelling-house. Approval for the use of a bedroom at ground level not only intensifies the use of the site but it increases the risk. This risk is contrary to the LLEP cl 5.21(1)(a) objective to minimise the flood risk to life and property, and the requirement of LLEP cl 5.21(2)(a) for the development to be compatible with the flood function and behaviour on the land. Clause 5.21(2)(a) is one of jurisdiction which, if not met to my satisfaction, renders the development unable to be given consent.

72. I accept Mr Howie’s expert advice that the successful use of flood barriers in this situation relies on all future residents to be suitably informed, diligent, and able to undertake the required maintenance to ensure their safety in a 1:100 ARI flood event. In my opinion this creates a real and increased risk to life and property from flood, and is contrary to LLEP cl 5.21(1)(a) and (2)(d), and LDCP E1.3.1 Objective O1. Again, LLEP cl 5.21(2)(d) is one of jurisdiction.

73. Based on the precedent developments put before me, I accept that the Council has taken a consistent approach to residential development in this area to date, requiring new buildings to elevate floor levels above the FPL in accordance with LDCP section E1.3.1. Although this is an application for alterations and additions, not a new building, in the absence of a development consent for an equivalent dwelling I accept that Council’s approach to this application is consistent with their historic approach to residential development in this area, and the application of the relevant development controls.

74. No submissions were put forward to demonstrate whether alternative development solutions were tested, however the Applicant submits that refusal of this development will result in the sterilisation of the site and set an unattainable standard for development in flood prone areas. I do not accept this position, noting that the only development deemed unacceptable in these proceedings is the requested alterations and additions.

68. In my opinion, the proposed development is not compatible with the flood function and behaviour on the land, does not incorporate appropriate measures to manage risk to life from flood, does not enable safe occupation in the event of a flood, and does not minimise the flood risk to life and property associated with the use of the land. The proposed development therefore does not satisfy the objectives of LLEP cl 5.21(1)(a), (b) and (d), nor the requirements of LLEP cl 5.21(2)(a), (c) and (d), or the considerations of LLEP cl 5.21(3)(c). Furthermore, it does not comply with LDCP Section E1.3.1 Flood Risk Management Objective O1, Controls C3 and C8 (d) and (e).

69. For these reasons, I am not satisfied that the flood planning objectives and requirements of LLEP cl 5.21 are achieved and, as this is a question of jurisdiction, am unable to uphold this appeal.

Orders

77. The court orders that:

1. The appeal is dismissed.

2. Development application D/2019/227 for alterations and additions to existing dwelling house to facilitate conversion into three (3) separate residential units, and associated works, including fencing and landscaping works and demolition of a shed at 64 Hubert Street, Leichhardt, is determined by way of refusal.

3. All exhibits are returned except Exhibits A, B, H, J, L and 8.

………………………….

Emma Washington

Acting Commissioner of the Court

Decision last updated: 02 August 2021