Hackett v Hawkesbury City Council

[2006] NSWLEC 503

Land and Environment Court

of New South Wales

CITATION:

Hackett v Hawkesbury City Council [2006] NSWLEC 503

PARTIES:

FIRST APPLICANT
Ronald Francis Hackett
SECOND APPLICANT
Kerri Dawn Hackett

RESPONDENT
Hawkesbury City Council

FILE NUMBER(S):

11191 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Use of existing building as a tourist facility, flooding, evacuation, waste water, structural stability, building status, public interest

LEGISLATION CITED:

Hawkesbury Local Environmental Plan 1989
Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River
Sydney Regional Environmental Plan No. 20 Hawkesbury - Nepean River (No. 2 – 1997)
Hawkesbury Development Control Plan

CASES CITED:

Centro Properties Limited and Others [2006] NSW LEC 78;
Goldin and Another v Minister for Transport Administering the Ports Corporatisation and Waterways M'ment Act 1995 121 LGERA 101;
B P Australia Ltdv Campbelltown C C [1993] NSWLEC 154 (24 September 1993);
Precise Planning v Wollondilly SC and Anor [2005] NSWLEC 339

DATES OF HEARING:

26 and 28 April 2006 and 13 June 2006

 
DATE OF JUDGMENT: 

08/21/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Johnson, barrister
Instructed by: Mr R Gray, solicitor
Of: Grays Lawyers

RESPONDENT
Ms C Schofield, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 August 2006

11191 of 2005 Ronald Francis Hackett and Kerri Dawn Hackett v Hawkesbury City Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application proposing the use of an existing building as a tourist facility on a limited stay basis. The building is located at Manns Road, Wilberforce, and is situated on the banks of the Hawkesbury River as shown in Attachment 1.

2 The reasons for refusal included:

1. The proposed development is inconsistent with Hawkesbury Local Environmental Plan 1989 .

2. The site is unsuitable for the proposed development due to the impact of flooding events.

3. The access is unsuitable for the proposed development.

4. The development application does not demonstrate that the existing structure is capable of supporting the proposed additions.

5. The proposed development application does not demonstrate whether the site is suitable for the disposal of effluent generated by the proposed development.

6. The proposed development is inconsistent with the planning consideration policies and recommended strategies of the Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River.

7. In the circumstances, approval of the development would not be in the public interest.

3 These matters focussing on the flooding risks, subsequently became the main issues in the appeal. In order to address them, the parties agreed to the appointment of Mr A Bewsher as the Court-appointed expert for flooding and drainage assessment. Accordingly he prepared detailed reports, which became Exhibits 8 and 9.

The site

4 The subject property is known as 16 Manns Road, Wilberforce, and is described as Lot 1 in DP 1055163. It is generally rectangular in shape with a road frontage of 19.395 m and side boundaries of approximately 230 m and 247 m. The total site area is 7585 sq m.

5 The site falls from Manns Road at approximately 14 m AHD to the Hawkesbury River at approximately 6 m AHD. The site is described as having a gentle overall slope of about 3-4%.

6 At present, a newer dwelling house is located close to Manns Road. The subject building is separately located close to the riverbank and contains two bedrooms, two bathrooms, a combined living and kitchen area and covered outdoor patio with a barbecue. A constructed boat ramp provides direct access to the river from the land.

The proposal

7 This proposal is for the use of the existing building as a tourist facility on the basis that it could be used no more than 25 to 30 weeks per year, with a maximum occupancy of six persons.

Planning controls

Hawkesbury Local Environmental Plan 1989

8 Under this LEP the property is zoned Environmental Protection Scenic 7(d1) and the proposal is permissible with consent. Of particular relevance in this matter are the following LEP provisions:

• Clause 9 - Carrying out development,
• Clause 9A - Zone objectives,
• Clause 18 - Provision of water, sewerage etc. services,
• Clause 15 – Erection of dwelling houses,
• Clause 25 - Development of flood liable land which provides:
  
  (1) In this clause:
  commencement day : means the day on which Hawkesbury Local Environmental Plan 1989 (Amendment No. 86) commenced.
  flood compatible materials: means building materials and surface finishes capable of withstanding prolonged immersion in water.
  floodway: means the channel of a river or stream and those portions of flood plain adjoining the channel which constitute the main flow path for floodwaters.
  (2) A building shall not be erected on any land lying at a level lower than 3 m below the 1-in-100 year flood level for the area in which the land is situated, except as provided in subclauses (4), (6) and (8).
  (3) Each habitable room in a building situated on any land to which this plan applies shall have a floor level no lower than the 1-in-100 year flood level for the area in which the land is located.

  (4) Notwithstanding subclauses (2), (3), (10) and (11), a building that was lawfully situated on any land at 30 June 1997 may, with the consent of the Council, be extended, altered, added to or replaced if the floor level of the building, after the building work has been carried out, is not more than 3 m below the floor height standard for the land immediately before the commencement day.
  (5) The council shall, in the assessment of a development application, consider the flood liability of access to the land and, if the land is within a floodway, the effect of isolation of the land by flooding, notwithstanding whether other aspects of this clause have been satisfied.
  (6) Minor structures such as outbuildings, sheds and garages may be erected on land below the 1-in-100 year flood level, with the consent of the Council. The Council shall, in the assessment of a development application for such a structure, consider the likely frequency of flooding, the potential flood damage and measures to be taken for the evacuation of the property …

Sydney Regional Environmental Plan No. 20 Hawkesbury - Nepean River (No. 2 – 1997)

Hawkesbury Development Control Plan

9 Of relevance, Part C – Chapter 7 deals with effluent disposal requirements.

NSW Floodplain Development Manual (Manual) – The management of flood liable land

The evidence

10 In addition to the evidence of Mr Bewsher, other flooding evidence was presented by Dr D Robinson (floodplain management consultant), as contained in Exhibit B.

11 The planning aspects were addressed by Mr R Ryan for the council (Exhibits 6 and 7) and Mr G Falson (Exhibit A), for the applicant.

12 The waste water and structural concerns about the building were identified by Ms Tierney (Exhibit 12). In response, the waste water issue was addressed by Mr H Fiander, consulting engineer and his report is Exhibit C. The structural concern was addressed by Mr Hansford (Exhibit D).

13 Insofar as the principal contested issue concerns the suitability of the site for the proposed use due to the flooding risks, an integral part of this consideration concerns status of the existing building. This matter was raised due to the uncertainty of any approvals for the building. I deal with this aspect subsequently.

14 With reference then to the principal issue of flooding, Mr Bewsher has assessed the various flooding information available, relative to the subject site. This information shows that the floor level of the existing building is 7.5 m AHD. He relies on the Hawkesbury Nepean Flood Levels Plan, prepared by Webb McKeown & Associates in 1994, which indicates that the flood behaviour at the site is as shown in the following Table 1.

TABLE 1 – FLOOD HEIGHTS AT BUILDING

AVERAGE RECURRENCE INTERVAL (ARI)	ANNUAL EXCEEDANCE PR0BABILITY (AEP)	FLOOD LEVEL	FLOOD DEPTH ABOVE FLOOR LEVEL	SOURCE
100 years	1%	16.9mAHD	9.4 m	Refer Para. 2(e)
50 years	2%	15.3mAHD	7.8m	Refer Para. 2(e)
20 years	5%	13.2mAHD	5.7m	Refer Para. 2(e)
10 years	10%	11.8mAHD	4.3m	Refer Para. 2(e)
5 years	20%	10.2mAHD	2.7m	Refer Para. 2(e)
2 years	50%	7.5mAHD	0.0m	Estimated

15 Mr Bewsher says that during the 100 year flood event, water velocities near the building would be between 0.5 m/s and 1.0 m/s. Accordingly, his opinion is that the existing building is located within a high hazard floodway (according to the definitions presented in the Floodplain Development Manual) and it would also be classified as a floodway using the definitions in council’s LEP.

16 Furthermore, as a consequence of the property being located in an area known as Gronos Point, which contains some high ground that would be surrounded by floodwaters during a 100 flood event, it is likely residents and tourists will be isolated for some time on an “island”, until they could be evacuated by emergency services personnel. The isolation occurs due to the entry road being flooded.

17 On the basis that the building is located within the high hazard floodway, Mr Bewsher’s initial conclusions are dependent on the status of the building. If the building is an approved residential dwelling, then he considers there is a significant flood risk, which council has some responsibility under the Manual to manage. This may involve acquisition of the building. Otherwise, he considers the use of the building should be restricted, so that the flood risks are somewhat minimised and this could be achieved by limited use of the building for occasional tourist use, rather than any permanent residential occupation.

18 If, however, the building is classified as a shed with no residential entitlement, then, Mr Bewsher concludes that the flooding risks do not warrant it being used as a tourist facility.

19 Dr Robinson provided an additional drainage assessment on behalf of the applicant. He initially agreed with Mr Bewsher that a 100 year flood standard has been adopted as current practice for the normal floor level for habitable buildings. But he considers that due allowance should be given to "many existing buildings that were lawfully constructed at a lower level before current planning policies/regulations were enacted". Also, he does not agree that existing buildings that do not exacerbate the flooding problems of others should be removed because they were previously approved.

20 With reference to the subject site, Dr Robinson acknowledged that it is flood prone and on average it is likely to be flooded once every two years. But he contends the development is suitable for tourist use because visitors who wish to stay at the site, do so for the view and enjoyment of the river and their stay would be of short duration. Such people have no reason to try and stay behind if a flood appears to be imminent. They would wish to get back to their normal residences and return to work, so their approach would be very different to that of permanent residents.

21 Dr Robinson’s conditional support for the development proposal is on the basis that for the building to be safely used as a ‘tourist facility’ in a flood prone area, "a robust Flood Evacuation Plan needs to be developed, presented to and discussed with all guests and a laminated summary of the plan needs to be prominently displayed in the building".

22 Accordingly he says that satisfactory evacuation arrangements can be implemented as the rate of the river rise is slow, and the building is not exposed to high velocity flows which allows sufficient time for guests to pack up and evacuate. Also, the access road from the building to Manns Road generally rises constantly to land above the maximum flood level, which does not provide a significant constraint to a safe evacuation route. He incorporated an evacuation plan in his report.

23 This flood evacuation plan basically provides for:

• the maintenance and implementation of the plan to reside with the managers of the property,
• the managers are required to maintain daily monitoring of local weather and flood forecasts and where a flood event is possible activate a flood watch.
• a clearly visible marker (containing a mechanical-electrical alarm) with a designated flood warning level, is to be placed on the riverbank, which makes a loud warning noise when it is inundated, so as to facilitate evacuation of any tourists. This alarm is to be set at the 3 m AHD level (i.e. approximately the 1:1 storm).
• guests are to be briefed on arrival and given an evacuation plan.

24 The flooding experts subsequently conferred and agreed on a number of facts, which can be summarised as follows:

• the site is entirely below the 1 in 100 flood level of the Hawkesbury River, which is calculated at 16.9 m AHD in this location;
• in the 1 in 100 year flood, the floodwaters would be 9.4 m above the floor level of the subject building, the floor level being 7.5 m AHD;
• in the 1 in 5 year flood, the floodwaters would be just above ceiling of the subject building;
• in the 1 in 2 year flood, the floor of this building would be inundated. That is, the building would be inundated on an average every 2 years;
• in the 100 year ARI (Average Recurrence Interval), the velocity of the flow in the general over bank area will be in the range of 0.5 to 1.0 m/s;
• the hazard category of the site is high as defined (as follows), in the NSW Floodplain Development Manual 2005 (Manual):
  
  " high hazard possible danger to personal safety; evacuation by trucks difficult; able-bodied adults would have difficulty in wading to safety; potential for significant structural damage to buildings.”
  
• there is a possibility that guests at the tourist facility might not depart the site in the event of a flood with sufficient time to be able to leave the area by Grono Farm Road and thus become trapped on the Grono Point "island".

25 Insofar as the parties have referred to the provisions of the Manual as a consideration matter for determination of the application, reference was also made to the associated planning controls contained in the LEP, namely cl 25 development standards.

26 The Manual advocates a strategic and merits based approach to development assessment and states that:

The primary objective of the New South Wales Flood Prone Land Policy, as outlined below, recognises the following two important factors:
• flood prone land is a valuable resource that should not be sterilised by unnecessarily precluding its development; and
• if all development applications and proposals for rezoning of flood prone land are assessed according to rigid and prescriptive criteria, some appropriate proposals may be unreasonably disallowed or restricted, and equally, quite inappropriate proposals may be approved

  1.1.1.

  The primary objective of the policy is to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from flood, utilising ecologically positive methods where ever possible. That is:
  

• a merit approach shall be adopted for all development decisions in the floodplain to take into account social, economic and ecological factors, as well as flooding consideration.
• …

27 In order to establish an appropriate balance, the Manual identifies strategic guidelines with the proviso that it is not supposed to be used to assess individual development proposals. Instead it is "to assist councils in the preparation of flood plain risk management plans". In particular, the Manual states:

A fundamental principle of flood plain risk management is to assess development applications within the strategic framework of floodplain risk management plan and not in isolation or individually. The relevant sections of the management plan are to be included in councils LEPs, and flood related DCPs and policy

28 Unfortunately there is no current floodplain risk management plan (FRMP) to apply. However, Mr Bewsher identified the following evaluation criteria/planning principles which he considers appropriate, in the absence of a FRMP, for the assessment of this development application:

i. A development should be consistent with the relevant Floodplain Management Plan prepared by the Council, if such Plan exists.
ii. Graduated planning controls are necessary which recognise the flood sensitivity of certain land uses and the variability of flood hazards across a floodplain.
iii. The development must not result in an unacceptable risk to personal safety, either on the site or elsewhere.
iv. The development must not result in an unacceptable risk to property, either on the site or elsewhere.
v. Where the personal safety risks or property risks associated with the development are small, the cumulative impact of multiple developments in the floodplain need to be considered to identify if the resultant impacts are acceptable.
vi. The suitability of the development should be evaluated over a range of flood sizes that have different probabilities of occurrence.
vii. The types of planning controls to be applied to floodplain developments will usually comprise:
a) Floor levels
b) Building components (i.e. to ensure materials are flood compatible)
c) Structural soundness (i.e. ability to withstand flood waters)
d) Flood effects on others (i.e. the development should not increase flood effects elsewhere having regard to flood levels, velocities, loss of flood storage and changes in flood conveyance)
e) Evacuation and access
f) Management and design (e.g. storage of hazardous goods in a floodplain, or ensuring development as a consequence of the subdivision application can be carried out responsibly having regard to the flood risks).

29 Having considered the evidence and submissions regarding the utility of this criteria, I deal with this subsequently.

30 However, associated with this, some planning controls dealing with development of flood liable land are contained with cl 25 of the LEP. In particular cl 25(3) which contains a development standard for the floor level height for each habitable room in a development. If this clause is relevant, then a SEPP1 objection is required.

31 According to Ms Schofield's submissions, cl 25(3) requires that each habitable room in a building situated on any land to which the LEP applies, should have a floor level no lower than the 1 in 100 year flood level for the area in which the land is located. As the proposal, to use the subject building as a tourist facility involves use of the rooms within the subject building as habitable rooms, this clause applies because there is nothing in the wording which indicates it only relates to the erection of a building. Her submission is that cl 25(3) relates to an application to use a building and therefore imposes a development standard to which the proposal is non-compliance by 9.4 m, which therefore requires consideration of the SEPP 1 objection.

32 Against this, Mr Johnson submits that the proper construction of cl 25 is that it only applies to the erection of buildings, based on the legal and historical context of the wording of the clause. Even though cl 25 has been amended since 1989, it still contains subcll (2), (4), (6), (7), (8), (10) and (11), which explicitly deal with the erection of a building. Therefore the intention is to link subcl (3) to these other causes, so they relate to the erection of a building.

33 Furthermore, Mr Johnson submits this interpretation is supported by reference to the definition in subcl 5(2)(c) of the LEP, which provides that:

(c) a reference to a floor height standard is a reference to the height above AHD to which the Council has determined is the minimum height that the floor of a habitable room of a dwelling house may be erected having regard to the likely impact from flooding on that dwelling house.

34 Responding to these submissions, Ms Schofield says that cl 5 (2) (c) is not relevant to this application nor to cl 25 (3) of the LEP as cl 25 (3) does not use the expression "floor height standard and also because cl 5 (2) (c) relates to a dwelling house which the subject building is not and nor is the application seeking consent for a dwelling house.

35 In any case, a SEPP 1 objection was lodged during the proceedings. The SEPP 1 objection was prepared by Mr Falson against the development standard containing cll 25 (2) & (3) of the Hawkesbury Local Environmental Plan 1989. The objection says that as there is no stated purpose within the LEP of the required height of buildings or height of land where buildings are to be erected relative to flooding, then the underlying object or purposes of the standard is "presumed to enable the erection and use of buildings that do not pose unreasonable threatening situations for persons or property".

36 In support of the SEPP 1 objection, Mr Falson says that continued use of an existing building for tourist accommodation purposes follows from proper and reasonable management of an existing resource having regard to the sites existing physical features. Also the social and economic welfare of the community is maintained by the development being of an orderly and economic use of the land. A "tourist facility" within the zone is permissible land use. The development will provide an additional tourist accommodation facility style and choice to the community whilst ensuring that any environmental impacts are within appropriate levels.

37 To conclude that compliance with the development standard is unreasonable or unnecessary in this case and that the SEPP 1 objection should be allowed, Mr Falson relies on the following matters:

• the proposal is a permissible use with consent within the relevant 7 (d1) zone under the provision of Hawkesbury LEP 1989.
• the allotment is of a size and shape adequate to contain the development without adverse impact on adjoining allotments.
• there are other allotments in the vicinity of the site area of similar size and which contain riverfront buildings of similar scale and character.
• there will be no adverse impact of amenity, streetscape or riverscape arising from the continued use of the building for tourist accommodation purposes.
• the development exists and has existed for some time. There is an argument that the building in one form or another has been approved and that it is a reasonable use of such a building.
• notwithstanding the accommodation use of the building and its flood liability the accommodation is not permanent and reasonable flood management procedures will be in place to ensure personal safety.

38 Against this, however, Mr Ryan says that "the purpose of the standard is to prevent development of land affected by flooding that is to be used for habitable purposes". He disagrees with Mr Falson, because he does not consider the proposal should be considered as the continuing use of an existing building for tourist accommodation, because he says the building has never been approved for that purpose.

39 Mr Ryan says that the flooding constraints on this building, including the habitable rooms is of such significance that the principles of the Floodplain Development Manual are not met. Accordingly he considers that the SEPP 1 objection has not adequately established that compliance with the development standard is unreasonable and unnecessary to protect the public interest for the use of the flood prone land. Therefore he concludes that the objection is not well founded and could lead to an undesirable precedent in the development of flood liable lands in this locality.

40 The other issues on which evidence was presented concerns the waste water arrangements necessary for the tourist accommodation and the structural adequacy of the building. Following concerns raised by Ms Tierney, the applicant responded by way of Mr Fiander’s detailed report.

41 His investigation revealed that the existing septic tank, its waste water disposal area and the existing disposal of the house are all located below the once in five year flood level (20% AEP flood level). In this regard he notes that it is “a usual practice in waste water disposal design to try and keep disposal areas above the once in five year flood level where possible “.

42 But in this case he says that while flooding at the once in five year event would inundate the septic tank and soakage trenches, “it is unlikely that the contents of the septic tank would be released to the flood waters, although it is possible that a relatively minor addition of nutrients would be made to the flood waters”.

43 Taking into account that the applicant plans to relocate and upgrade the existing waste water disposal area, and the availability of a number of feasible options Mr Fiander concludes:

The successful operation of the existing septic tank and soakage trench system for several decades is adequate evidence, in my opinion, that the site is suitable for the existing waste water system. Sludge is removed from the site by tanker when required.

44 Nevertheless, whilst I have some concerns about the reliability of this approach, there were no challenges from council to this conclusion, I therefore anticipate this issue could be covered by appropriate conditions of consent.

45 The structural adequacy concerns were addressed by Mr Hansford, who inspected the property and concluded that:

The existing building and awning are structurally adequate for its current use as a tourist facility.

46 I presume this includes appropriate allowance for the known degree of affectation during the various flood events and accordingly conditions of consent could address any concerns in this regard.

Discussion of the evidence and submissions

47 The threshold issue in this matter concerns the risks to persons and property in the use of the existing building due to its flood liability. Accordingly cl 25 of the LEP is a relevant consideration in my opinion. In reaching this conclusion, I rely on Ms Schofield's submissions that subcl 25 (3) refers to the use of habitable rooms (which the proposal involves) and that it can be read independently of the other subclauses, except subcl (4) which is not activated because it has not been established that the building is lawful. Therefore consideration of the SEPP 1 objection is required.

48 In adopting this course, I note submissions were made regarding the Draft SEPP 1, which was placed on exhibition in May 2004. Clause 14 (2) (a) provides:

2 A development application:

(a) as made under clause 6 of the former Policy before the date of commencement of this Policy and that was not finally determined before that date …

is to be determined in accordance with the former Policy as if the former Policy had not been repealed by this Policy .

49 Therefore, as the draft SEPP, if made, would not apply to this development application, the draft SEPP is not a relevant consideration in these proceedings.

50 Nevertheless, the line of authority established in the decision of Talbot J in Centro Properties Limited and Others [2006] NSW LEC 78, says that the Draft SEPP is a matter for consideration. Accordingly, I rely on the parties agreement that any SEPP objection in the subject matter, should be determined on the basis of SEPP 1.

51 In considering the SEPP 1 objection, I note Mr Johnson submission that in addition to the contents of Mr Falson’s written objection, the other expert evidence, particularly Dr Robinson's flooding details should be considered concurrently. Accordingly, I have adopted this approach in assessing the flooding merits initially.

52 The proposal involves the use of the existing riverbank building for the tourist accommodation. But significant evidence was presented, which indicates the subject building was not approved for residential purposes. While this was challenged during the appeal, the applicant ultimately conceded that it was unable to confirm any residential dwelling approval or entitlement for the building. Therefore any grant of consent for the current development application would be subject to confirmation of its status.

53 Notwithstanding this, the building has evolved and I consider it is subject to significant flood liability risks including:

• total inundation of some 9.4 m in the designated 100 year flood,
• likelihood of the floor level being inundated by flooding on average every 2 years,
• water velocities in the order of 0.5 to 1 m/s occurring around the building, likely requiring tourists/visitors to negotiate in flood evacuation situations,
• the desirability of having a fail-safe flood evacuation plan, so that any tourists who use the building and are unfamiliar with the flooding risks are adequately informed and protected.
  

54 In my assessment, these impacts create some risks to persons and property and impose considerable constraints on the use of the building for the proposed limited time tourist facility. Both the flooding experts agree that it would not be appropriate to approve a new building in this situation, which is exposed to the identified flooding risks. Their general concession was that the risk would be lower by allowing the partial tourist use, rather than the more intense, permanent residential occupation. If however the building is classified as a shed they do not consider approval of the tourist use is appropriate.

55 Consequently, the threshold question in terms of the s 79C consideration is whether the site/building use is suitable for the proposed development?

56 Initially the flooding experts agreed that the adoption of the 1: 100 year flood level generally represents current practice for restricting development within flood liable areas. However this standard is somewhat meaningless and impractical in this case due to the property being located in the floodway and subject to approximately 9.4 m inundation in this flood event.

57 Therefore, I consider the evaluation points listed by Mr Bewsher provide a reasonable assessment approach in these circumstances. This is notwithstanding Mr Johnson’s submissions that these evaluation points should not be formally adopted as planning principles because this approach would be contrary to the Manual provisions, which advocates Councils to prepare a local floodplain management plan, that identifies the appropriate levels of risks accepted by the community. I accept this submission and apply the evaluation criteria due to the circumstances of this particular case.

58 Point 1: requires consistency with the relevant council floodplain management plan. Despite the absence of this plan, nevertheless the Manual suggests that flooding controls be imposed in relevant LEPs and DCPs. Accordingly cl 25 of the LEP imposes such a standard.

59 Point 2: indicates that graduated planning controls are necessary which recognise the flood sensitivity of certain land uses and the variability of flood hazard across a floodplain. As a previously stated, cl 25 (3) is a planning control, to which the floor level of the subject building is non-compliance by 9.4 m below the 1:100 flood level. I consider this a serious non-compliance with the development standard.

60 Point 3: suggests that the development must not result in an unacceptable risk to personal safety, either on the site or elsewhere. Insofar as the flooding experts were of the opinion that there would be little risk to persons using the building as a tourist facility, I have difficulty relying on this evidence because of some inconsistencies in the evidence.

61 Considering that the floor of the building will be inundated on an average 1 in 2 years and the flood warning system is activated in the 1:1 year storm event, it seems that evacuations could be relatively frequent and therefore appropriate fail-safe evacuation arrangements should be in place. Dr Robinson originally said that a robust flood evacuation plan needed to be developed and implemented. But he subsequently conceded that the evacuation plan was not necessary, it was only an embellishment and a good idea due to the frequency flooding.

62 My concerns are that whilst the experts agree that the rate of flood rising is relatively slow at 0.5 m/hour and the consequential risks low, nevertheless the flood warning alarm could be activated during the night time, requiring evacuation in the darkness and through some depth of moving water, due to the building being located on the riverbank and some 200 m from the manager’s house on the higher ground.

63 Therefore, assuming that a significant portion of the tourists/visitors would be unfamiliar with the area, or flood evacuation procedures, I consider some advice to this effect is essential. The evidence indicates that this could be accomplished by way of conditions requiring a flood evacuation plan. But this approach is contrary to that advocated by the State Emergency Service (SES) in the Manual as follows:

Any form of response planning, but private planning in particular, is unreliable as a long-term risk mitigation measure. This is because all plans must be prepared using assumptions about conditions (environmental and organisational) that are expected to apply in the future and which may prove to be wrong or at least very different to the actual event.

Floods are highly variable in frequency and severity and this influences two critical planning assumptions, available flood warning time and likely consequences. If, in an actual flood, there is a significant variation between assumptions and reality, even a well-written plan may fail unless intelligent on-the-day adaptation is implemented …

In a naive attempt to provide some sort of protection to council when it approves a DA in a flood risk area, some councils are imposing development consent conditions requiring site specific plans. Some consent conditions require the applicant to seek SES endorsement of their plan. Taking into account the preceding discussion about the limitations of private plan, the SES is opposed to this approach and some specific points related to this policy as set out …

64 In my assessment, the flood liability at the building is such that as there is likely to be a range of persons using the facility with different levels of mobility, they should be informed of the potential risks and advised of evacuation procedures. But this is contrary to the SES procedures who oppose individual evacuation plans. Therefore, there does not seem be a satisfactory alternative to address the risks to personal safety, which is likely to occur on a regular basis. This is an undesirable aspect in terms of public interest considerations of this development proposal, in my opinion.

65 Point 4: refers to unacceptable risks to property, either on the site or elsewhere. According to Mr Bewsher's evidence, the existing building and its contents could suffer some damage in a flood. Also, part of the building could become detached in a flood and cause damage to other downstream properties. Whilst Mr Hansford says that the building is structurally adequate to withstand the various flood events, including overtopping in the order of 9.4 m in the design storm, it still presents an undesirable risk in my assessment, particularly in respect of the anticipated regular flooding of the contents (i.e. when the floor is inundated in the 1:2 year floods), notwithstanding the current owners acceptance of any inconvenience and economic impact.

66 Point 5: considers when the personal safety risks or property risks associated with the development are small, whether the cumulative impacts of multiple development in the floodplain need to be considered to identify if the resultant impacts are acceptable. On the basis that there are other similar type buildings and boatsheds along the riverfront, apparently without residential entitlement, Ms Schofield made submissions about the potential cumulative and precedent problems, in the event of this proposal being approved.

67 Specifically, Ms Schofield referred to the matter of Goldin and Another v Minister forTransport Administering the Ports Corporatisation and Waterways Management Act 1995 121 LGERA 101, where Lloyd J noted at [31] and [32] that:

“The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council, Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgement. Sugerman J acknowledged that "If one application were granted it might prove difficult for the Council to refuse others unless the circumstances were distinguishable. In the present case that has been are finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications.

In particular, the decision of the Court of Appeal in B P Australia Limited v Campbelltown City Council [1993] NSWLEC 154 is, of course binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily in vocable by prospective developers of other land in the vicinity is a valid consideration."

68 Also reference was made to the matter of Precise Planning v Wollondilly Shire Council and Another [2005] NSW LEC 339, where Pain J said at par 44:

"Applying Goldin to the slightly different circumstances before me, I accept that setting an adverse precedent for approval of a single application that is otherwise not objectionable, but is likely to lead to other approvals giving rise to adverse cumulative impact, is a relevant matter to consider in relation to a SEPP 1 objection. The Department of Planning’s Circular B1 clearly raises the need to take into account potential cumulative impact when considering SEPP 1 objections."

69 Accordingly, I accept Mr Ryan’s evidence, which was not challenged that there are other buildings/boat sheds located along river which could similarly apply for residential uses. This would not be in public interest considering the absence of any coordinated floodplain management plan that incorporates appropriate limitations on development and safety and evacuation planning measures. Therefore, I consider approval of this development could create an undesirable precedent.

70 Point 6: refers to the suitability of the development being evaluated over a range of flood sizes that have different probabilities of occurrence. In this regard, the agreed flooding evidence is that it is desirable to have the early warning alarm system (i.e. triggered at the 1:1 flood level), due to the floor level be inundated in the 1:2 flood and the 1:5 flood reaching the building ceiling height.

71 It seems to me that this level of flooding requires constant awareness and action to ensure personal safety is maintained. The evidence presented in the flood evacuation plan imposes extraordinary responsibilities on the managers of the tourist facility to monitor local flooding and facilitate evacuation. In my opinion, this is unusually onerous and a negative aspect of the proposal, indicating the site/buildings unsuitability for the proposed use, considering the likelihood of relatively frequent warnings in 1:1 flood events.

72 Point 7: refers to types of planning controls applying to floodplain developments. As I have noted previously, the main control is contained in cl 25(3), which I have dealt with in the SEPP 1 objection.

73 With regard to the SEPP 1 objection, I am satisfied that:

• clause 25(3) is a relevant development standard for the floor height of a habitable room in a building subject provisions of the LEP.

• the underlying objective of this development standard in to restrict development in flood liable areas so that persons and property are not exposed to unreasonable risks.
• the existing floor levels in the building for the proposed use are in the order of 9.4 m below the designated flood level and as such poses an unacceptable risk to persons, in a range of flood events well below the designated planning flood level. Considering the absence of any local floodplain management plan, which addresses the overall safety and evacuation of residents affected by flooding events, I therefore do not consider the SEPP 1 objection has adequately established that compliance with development standard is unnecessary or unreasonable in the current case.

74 My conclusion then is that the SEPP 1 objection is not well founded and should therefore be disallowed. In this regard I rely on the planning evidence of Mr Ryan.

Conclusions

75 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent.

76 In my assessment the existing building is subject to a significant degree of flood liability, which results in it being located within a high hazard floodway on the banks of the Hawkesbury River. Its floor is inundated in a 1:2 year storm and in the 1:100 storm, the building is inundated by approximately 9.4 m. Therefore public interest considerations require careful assessment to ensure that these issues are adequately addressed.

77 I accept that the Floodplain Development Manual provides guidelines, which should be followed in the preparation of local Floodplain Risk Management Plans. In the absence of such plan, which would presumably address the risks that the community is prepared to accept in respect of proposed developments, then I consider consent could only be granted subject to adequate safety and evacuation procedures being introduced and maintained, for the subject development. But this is contrary to the SES procedures and I do not consider there was compelling evidence to disregard these procedures.

78 Apart from this, the main support for the proposal in terms of its flooding liability came from Dr Robinson. However it appears to me from reference to his report, that a considerable part of his support for the proposal is on the basis that the existing building is lawful for some form of residential use. But this was not established, and in concluding its case, the applicant’s submission was that any approval for residential use of the building could not be established.

79 Furthermore, his support was on the basis that conditions of consent be imposed to limit the consent to the period of the ownership and occupation of the existing property owners, due to their particular knowledge of the Hawkesbury River flooding characteristics. Unfortunately, I do not consider this appropriate because any consent granted would run with the land and not be tied to a particular owner.

80 In the ultimate, when the question of whether the site is suitable for the proposed development was asked, Mr Bewsher said that it was not. Dr Robinson support was conditional on the status of the existing building, which he thought had existed for some 10 – 15 years. However this assumption was not well founded. In my assessment of the evidence, I am persuaded to rely on Mr Bewsher's evidence, rather than Dr Robinson’s, that because of the degree of flood liability, the site/building is not suitable for the proposed use.

81 In reaching this conclusion, I have also given consideration to the provisions of the Manual regarding merit assessment so that productive land is not sterilised. I do not consider that applies in this case, because the property is not sterilised as the newer dwelling can continue to be used for its primary residential purposes, without intensifying residential usage in the riverfront building.

82 Aside from these merit considerations, determination of the SEPP 1 objection is required. In so far as I have considered this as a discrete matter, but included consideration of relevant merit aspects, I am not satisfied that the SEPP 1 objection should not be allowed.

83 Accordingly, I consider this development fails. In reaching this conclusion, I accept the applicant’s concession that it is unable to produce evidence of any residential approval or entitlement for the building.

Court orders

1. The appeal is dismissed.

2. The SEPP 1 objection to the development standard in subcl 25(3) of the Hawkesbury LEP is disallowed.

3. Development consent No. DA0854/03 for the use of an existing building at 16 Manns Road, Wilberforce, for the purposes of a tourist facility is refused.

4. The exhibits may be returned except for 5, 8, 9, 16, 18, B and E.

___________________
R Hussey
Commissioner of the Court
rjs