Ilarsan Pty Ltd v District Council of Mallala - [2013] SASC 135

Supreme Court of South Australia
(Appeals to a Single Judge: Civil)
ILARSAN PTY LTD v DISTRICT COUNCIL OF MALLALA
[2013] SASC 135
Judgment of The Honourable Justice Blue
21 October 2013
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - CONSENT AUTHORITIES
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - SUBDIVISION - PRINCIPLES GOVERNING CONSENT OR APPROVAL - RURAL SUBDIVISIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - ENVIRONMENTAL MATTERS
Ilarson Pty Ltd is the registered proprietor of 5.6 hectares of land located almost exlusively in the Gawler River Flood Plain Area (Flood Plain Area) as defined by the District Council of Mallala Development Plan. Ilarson sought development plan consent to subdivide the land into five allotments of 1.1 hectare each. The Council refused consent because creating additional allotments in the Flood Plain Area was not consistent with the objectives of the Development Plan. Ilarson's appeal to the Environment, Resources and Development Court was dismissed.
Ilarson appeals to this Court against the decision of the Commissioner on the ground that the Commissioner made errors of law in construing the Development Plan.
Held by Blue J dismissing the appeal:
1. The provisions of the Development Plan evince a strong policy against any division of land (at least to create allotments less than 40 hectares) within the Flood Plain Area at [36]-[41].
2. The reference to "creating additional allotments straddling the Policy Area" in Principle 2 should be construed to refer to allotments which partially fall outside the Flood Plain Area entirely and not merely straddling different levels of hazard zones within the Flood Plain Area at [42].
3. The intent of principle 2 of the Flood Plain Area section is that, where a significant portion of land falls outside the Flood Plain Area, the mere fact that some of the land falls within the Flood Plain Area does not preclude the creation of additional allotments at [43].
4. Almost all of the land falls within the Flood Plain Area. The mere existence of an insignificant amount of land falling outside the Flood Plain Area does not result in a radically different approach under the Development Plan compared to land entirely within the Flood Plain Area at [44]-[46].
5. The Commissioner made no error of law in her construction of the Development Plan at [47].
Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166; (2001) 79 SASR 509, discussed.

ILARSAN PTY LTD v DISTRICT COUNCIL OF MALLALA
[2013] SASC 135
Civil:
BLUE J:

In September 2010, the appellant, Ilarsan Pty Ltd, applied to the respondent, the District Council of Mallala, for development plan consent to subdivide approximately 5.6 hectares of land at Lewiston. In February 2012, the Council refused consent.
In March 2013, a Commissioner of the Environment, Resources and Development Court dismissed Ilarsan’s appeal against the refusal of consent.
Ilarsan appeals to this Court against the Commissioner’s decision, contending that the Commissioner made errors of law in construing the Mallala (DC) Development Plan.
Background
Ilarsan is the registered proprietor of the land contained in the certificate of title volume 6066, folio 831 (“the Land”). The Land is 4.5 kilometres west of Two Wells. It comprises two separate pieces separated by a 20 metre wide drainage reserve owned by the Council.
The principal piece is piece 21 on the south west corner of Hayman and Frost Roads, Lewiston. It comprises 5.449 hectares in area with a frontage of 360 metres to Hayman Road to the north and 145 metres to Frost Road to the south. The application is to divide that piece into five separate allotments, each with a frontage of 70 metres to Hayman Road and an area of just over 1 hectare.
The other piece is piece 22 which is situated to the south of piece 21 at its eastern extremity. It has an area of 0.15 hectares. It is a narrow strip with a frontage of 9 metres to Cavallaro Place to the south and a depth of 163 metres. Its northern boundary is 20 metres to the south of the southern boundary of piece 21 (the two pieces being separated by the Council’s drainage reserve). It is proposed that piece 22 also be divided into five equal allotments, each with a width of 1.8 metres and each to be part of the corresponding allotment created out of piece 21 on an east to west basis. Appendix 1 comprises the plan of division.
The Land has the benefit of an easement across the Council’s drainage reserve between piece 22 and piece 21 for water supply purposes and the transmission of electricity by underground cable.
The Land is 4 kilometres north of the Gawler River. The entirety of piece 21 and vast majority of piece 22[1] are situated within the Gawler River Flood Plain Policy Area (“the Flood Plain Area”).
[1] Except approximately the southern 25 metres of piece 22.
When Ilarsan applied for development plan consent in September 2010, the applicable version of the Development Plan was the one consolidated to 14 January 2010. The Development Plan defined the Flood Plain Area geographically as the area designated as Gawler River Flood Plain shown on maps 27 and 28 (“the Flood Plain”). Appendix 2 comprises maps 27 and 28.
The Flood Plain comprises two distinct areas. The southerly segment is located on the northern bank of the Gawler River, effectively commencing at the intersection of Pederick Road and Gawler River and proceeding down river to the west where it ends immediately east of Port Wakefield Road. The northerly segment commences in the neighbouring District Council of Light to the east and has a frontage of approximately 3 kilometres when it enters the eastern boundary of the District Council of Mallala. It proceeds generally north-westerly and then westerly to Buckland Park Road, which is about 1 kilometre west of Port Wakefield Road.
The Land is almost entirely within the northerly segment of the Flood Plain, except for approximately the southern-most 25 metres of piece 22.
The Council refused the application for development plan consent on the principal ground that the creation of additional allotments in the Flood Plain was not consistent with objectives of the Flood Plain Area or the desired character expressed for rural living areas therein and increased the potential for additional development sites on flood affected land, all of which were at variance with various objectives, principles and desired future character statements contained within the Development Plan.[2]
[2] The Council also refused consent on two further grounds but they did not form part of the decision by the Commissioner and need not be further considered.
The Commissioner agreed with the Council that the creation of new allotments almost entirely contained within the Flood Plain was at variance with the various objectives and principles of the Development Plan. The Commissioner concluded that the proposed development did not merit development plan consent.
The structure of the Development Plan
The Development Plan is arranged in hierarchical order. From the perspective of the Land, it contains four sets of objectives and principles applying from broader to more specific areas at four levels in descending order as follows.
1.     Outer metropolitan: encompasses broadly a semi-torus extending        around metropolitan Adelaide, the outer boundary of which is about 100     kilometres to the north and south, and 70 kilometres east of      the centre of Adelaide. It includes Mallala District Council at the northwest          to the Yankalilla District Council at the southwest.
2.     Council wide: encompasses the whole of the area governed by the        Council.
3.     The Rural Living Policy Area (“the Rural Living Area”): encompasses         broadly the southerly and northerly segments of the Flood Plain and the         area lying between them (other than those devoted to horticulture). It      encompasses three rural living zones.
4.     The Rural Living Animal Husbandry Zone (“the Animal Husbandry     Zone”): is a broadly rectangular area bounded by Gawler River Road to the        south, Gawler Road to the north, Aunger Road to the east and Williams     Road to the west. The Land is in the centre of this zone.
The Flood Plain Area overlays several disparate zones, including the Animal Husbandry Zone in the centre, the Rural Living (2) Zone to the east and west, the Two Wells Zones to the northwest, the General Farming Zone to the north and the Horticulture Zone to the south.
Objectives and principles relevant to flooding are contained within the Council Wide and Rural Living Area sections of the Development Plan. However, most of the relevant desired future character statements, objectives and principles are contained in the more specific sections addressing the overlapping Animal Husbandry Zone and Flood Plain Area.
Animal Husbandry Zone
The background section of the Animal Husbandry Zone section of the Development Plan reads as follows:
This zone is located east of the township of Two Wells and presently embraces a mixture of land uses and block sizes. For some years now land division of many holdings has occurred with the aim of accommodating intensive animal husbandry activities. Many horse stables and dog kennels have been established in recent times. The land and its location is sufficiently suitable for this use as it is in close proximity to township services and training facilities, it has good access, and much of the land is capable of being connected to reticulated water mains. However, with the quantification of flood patterns from the Gawler River, policies for the zone need to be applied where relevant, in subservience to those for the Gawler River Flood Plain Policy Area.
The objectives of the Animal Husbandry Zone are as follows:
Objective 1: A zone for rural living including small-scale farming, horse keeping and dog kennelling, but excluding other forms of intensive animal keeping.
Objective 2: Due regard given to the risks of flooding on the Gawler River flood plain.
The first four principles of development control are as follows:
1      Development should not be undertaken unless it is consistent with the provisions    for the Rural Living Policy Area or is for:
(a)     the erection of, or alteration or addition to, a detached dwelling or associated                outbuilding;
(b)     farming or the erection of an associated farm building;
(c)     the keeping of dogs, horses, other livestock, birds and poultry; or
(d)     public outdoor recreation activities.
2      Developments should be located and designed in accordance with the requirements        of the Gawler River Flood Plain Policy Area.
3      Buildings (except for flood management) should not be erected in Hazard Zone 3 (Figs Haz/1 and Haz/2 as shown in Gawler River Flood Plain Policy Area).
4      Dwellings and other buildings used for human habitation should only be     undertaken in Hazard Zone 2 (Figs Haz/1 and Haz/2 as shown in Gawler River Flood Plain Policy Area), if supported by civil engineering advice.
Each of the Animal Husbandry Zone and the other zones overlapping with the Flood Plain Area designate as non-complying development the division of land creating allotments below 40 hectares in an area wholly within the Flood Plain. Principle 7 is expressed as follows:
The following kinds of development … are non-complying in the [relevant] Zone:
…
Land Division (except where required for flood management) which results in creation of an allotment or allotments below 40 ha in area wholly in the Gawler River Flood Plain Policy Area.
Flood Plain Area
As noted at [9] above, the Development Plan defines the Flood Plain to be the area shown on maps 27 and 28 in the Development Plan.
Under the heading “Background” in the Flood Plain Area section of the Development Plan, reference is made to Hazard Zones 1, 2 and 3 shown in figures Haz/1 and Haz/2. Those Hazard Zones are defined by reference to recent flood hazard mapping identifying the potential for flooding in a 1-in-100-year ARI flood. The areas comprising Hazards Zones 1, 2 and 3 do not correspond precisely to the Flood Area because the latter figures were delineated in 1986. Appendix 3 comprises Haz/1 and Haz/2.
The relevant paragraphs under the heading “Background” addressing the Hazard Zones are as follows:
The extent to which the area is flood prone was defined in 1986. Since then, flood hazard mapping was developed to more accurately identify the nature and extent of the potential for flooding in the event of a 1-in-100-years ARI flood (refer to Figures Haz/1 and Haz/2 which indicatively show Hazard Zones 1, 2 and 3).
The Hazard Zone are differentiated as follows:
(a)     Hazard Zone 1 – zero to 0.3 metres depth at flood where velocities are               generally low;
(b)     Hazard Zone 2 – 0.3 to 0.8 metres depth at flood where velocities are low, or               0.2 to 0.3 metres depth where velocities are high; and
(c)     Hazard Zone 3 – 0.8 to two metres plus, depth of flood, even where                   velocities are very low, or at depths 0.3 metres to 0.8 metres where velocities         are high.
Subject to acceptable civil engineering advice and reports, it is possible only for very limited development to be undertaken in Hazard Zones 2 and 3. In Hazard Zone 1 certain development can occur subject also to appropriate siting, build-up of floor levels, driveways and septic tank inverts and consideration given to the implications of altered drainage patters for other land.
…
Note: the boundary of the Gawler River Flood Plain Policy Area as shown of Maps Mal/27 and 28 does not correspond to the full extent of the area subject to flooding by the Gawler River. As noted on those maps the boundary in some locations represents only the extent of mapping of 1 in 100 year flooding. Areas outside of this policy area are also subject to flooding as was demonstrated by the flooding which occurred in October, 1992.
Figure Haz/1 shows the northerly portion of the Land falling within Hazard Zone 1 and the southerly portion of the Land not falling within a hazard zone but generally falling within the Flood Area (which I will call “Hazard Zone 0” for the purposes of identification). None of the Land falls within Hazard Zones 2 or 3.
The desired future character provisions of the Development Plan for the Flood Plain Area are as follows:
The Policy Area should accommodate a mixture of urban, rural and rural living uses (consistent with zone requirements), with limited associated buildings, managed to ensure flood hazard and potential risk to property is not increased. Any flood control structures need to be consistent with flood management strategies prepared by either or both the Northern Adelaide and Barossa Valley Catchment Water Management Board and Council.
Agricultural production should continue in the rural areas. The natural environment of the floodplain should be maintained and protected, and no new residential or other forms of built form should be encouraged in close proximity of the riverbank (except buildings or structures for the purpose of flood management). The following uses will be considered:
(a)     river structures for flood management (channels, pumping stands);
(b)     recreation uses;
(c)     continuation of existing primary production including horticulture, but with         improvements to existing management practice with regard to future and          existing and future residential use, and subject to conditions regarding   protection from floodwaters;
(d)     upgrading or replacement of existing dwellings and ancillary buildings               subject to conditions regarding protection from floodwaters;
(e)     dwellings providing there is 100 metre setback from the top riverbank and           the finished floor level is 300 millimetres above 1:100 year ARI flood level.
Rural residential development is provided for in rural living zones. In those zones the following uses will be considered:
(a)     dwellings in rural living zones (apart from Hazard Zone 3), providing the            finished floor level is 300 millimetres above the AHD 1:100 ARI flood        level;
(b)     rural hobby uses such as dog keeping and horse keeping;
(c)     truck parking;
(d)     cottage industry; and
(e)     elevated buildings in locations identified for recreation or business use.
Objectives and principles relevant to flooding and land division within the Flood Plain Area of the Development Plan are as follows:
OBJECTIVES
General
Objective 1:       An area where development is restricted and it is located and designed to have due regard to the hazards of flooding, and to minimise damage from it.
Flood Protection
Objective 2:       Protection of life and property from the effects of flooding.
Objective 3:       The prevention of development which could lead to a potential hazard                in the event of a major flood.
Control of all development within the flood plain is necessary to ensure that hazards are not created. In particular there should be no additional allotments beyond those required to facilitate flood management purpose.
…
PRINCIPLES OF DEVELOPMENT CONTROL
Ecologically Sustainable Development
1      Development should not be undertaken unless it is consistent with the Desired      Future Character for the Gawler River Flood Plain Policy Area.
Land Division
2      The creation of additional allotments (except where it is the purpose of flood water management) wholly within Hazard Zones 2 and/or 3 should not be undertaken.      Land division making adjustment to property boundaries, or creating additional     allotments straddling the Policy Area should facilitate development meeting the     provisions of the relevant Zone and Policy Area, and contain an area of at least     1500 square metres consisting of a continuous portion of land of sufficient area to accommodate a dwelling, septic system and associated out buildings outside of      Hazard Zones 2 and/or 3.
…
Built Form and Design
13    Fencing should be of an open design (not solid) so as to not impede water flow and        of neutral colours which blend with the natural colours of the landscape. Fencing should generally be minimised.
Design Technique
13.1 Post and wire fencing with mesh size greater than 100 millimetres with the          exception of fencing within 10 metres of a dwelling.
14    Where elevated buildings are involved, floor levels should be a maximum of 2.5    metres above existing ground level.
15    Dwellings, where elevated, should generally not exceed one storey in height (3.0    metres) excluding the elevation to minimise the potential for personal or property     damage as a result of a flood.
16    Underneath areas of elevated dwellings:
(a)     should not be used for living purposes;
(b)     may be sued for storage purposes, or for a toilet, or a shower, or laundry              facilities (subject to limits scheduled below);
(c)     may be enclosed using roller doors, removable panels, or other material              which can easily be removed during times of flood;
(d)     be designed to facilitate the flow of floodwaters.
17    Residential outbuildings (garages or sheds) should be fitted with roller doors,       removable panels or similar on two ends or sides (whichever elevations face the     direction of the river flow).
18    No building (except where required for the purpose of flood water management)    should be erected in Hazard Zone 3.
The reasons of the Commissioner

While both parties emphasise the need to consider, construe and apply the Development Plan as a whole and refer to various other provisions, much of the debate before the Commissioner and before this Court focused upon objectives 1, 2 and 3 and principle 2 of the Flood Plain Area section of the Development Plan quoted at [26] above.
The Commissioner considered that those specific objectives and principles, in conjunction with the other relevant provisions of the Development Plan, evince a clear policy against the creation of additional allotments (at least below 40 hectares) within the Flood Plain.
The Commissioner’s reasoning is encapsulated in the following passages from her reasons for judgment:
The GRFPPA comprises, as described by Ms Lewis, a “suite of policies” applicable to development within the Flood Plain. Such provisions are not directed solely to development within any specified Hazard Zone, although some do speak specifically to development in Hazard Zones 2 and 3. Further, the intent of the GRFPPA at Objective 3 and its related text, and its intent to ensure “the natural environment of the Flood Plain is maintained and protected” (Desired Future Character Statement), goes beyond consideration of developments solely related to Hazard Zones 2 and 3. In this context, I agree with Ms Lewis that the kinds of development which may be considered in the Zone (including rural residential development in rural living zones) would logically relate to developments on existing allotments and do not support, in their own right, the creation of additional allotments for such use. I do not, therefore, accept

Mr Manos’ contention that a low level of flood risk is sufficient, in and of itself, to support the creation of new allotments in the Flood Plain on the basis their future use was not in conflict with the GRFPPA provisions.
The question at hand is whether the Development Plan supports the creation of five allotments (of just over 1 hectare in area) where the notable majority of each allotment is located within the area defined as the Gawler River Flood Plain and to which a specific set of policies apply.
It is clear to me that the GRFPPA seeks to minimise the risk of flooding and the creation of potential hazards in the event of a 1:100 year flood. One such mechanism for achieving this is the limitation of development by restricting appropriate development to those allotments which exist at present. New allotments are, however, contemplated by GRFPPA Principle 2, but only under specific circumstances.
In the first instance, no additional allotments (other than for flood management purposes) should be created where they fall wholly within Hazard Zones 2 and 3. That is not the application before me but, nonetheless, reinforces the intent of the Policy Area (as further supported by other principles and references in the Policy Area) to minimise (or restrict) the opportunity for development to occur in the areas of greater hazard.
Principle 2 then turns to boundary realignments and to the creation of additional allotments which straddle the Policy Area.
In my opinion, the creation of new allotments falling almost entirely within the Flood Plain (albeit in an area defined as at the lower end of risk) does not meet this test notwithstanding that each proposed allotment is of a size and configuration capable of supporting a rural living land use. The provisions of the GRFPPA express a clear intent not to create new allotments capable of further development beyond that which occurs at present (as per the Desired Future Character Statement, and Objectives 1 and 3). These provisions, in my opinion, take precedence over the Zone provisions which speak directly to land use, but not to the creation of additional allotments (other than by means of the

non-complying provisions at Zone Principle 7).
I agree with Mr Manos that Principle 2, where it speaks of boundary adjustments and new allotments straddling the Policy Area boundary, “leaves the door ajar” for an application to be made for additional allotments. Such application may have merit where the majority of any proposed allotment falls outside of the Flood Plain. That is not the case here – by my calculations less than 0.5 per cent of the subject land falls outside of the Flood Plain. Under the proposed plan of division, this represents less than 0.1 per cent of each proposed allotment and that area (less than 50 square metres in area per piece) is located in the narrow “easement” pieces where they abut Cavallaro Place. Having regard to the overriding intent of the Policy Area as I read it, and in particular to the text associated with Objective 3, I do not find the creation of the proposed allotments to be in accordance with the intent of the GRFPPA, notwithstanding each allotment ‘straddles’ the Flood Plain boundary. If the proposal does not satisfy the intent of the GRFPPA it, therefore, fails to satisfy the intent of the Rural Living (Animal Husbandry) Zone having regard to the Zone’s Background Statement and Objective 2 and principle 2.[3]
[3] [2013] SAERDC 8 at [37], [41], [42], [43], [44], [45] and [46].
Contentions of the parties
Ilarsan contends that the first sentence of principle 2 of the Flood Plain Area section of the Development Plan explicitly excludes the creation of allotments within Hazard Zones 2 and 3 and thereby implicitly does not exclude the creation of additional allotments within Hazard Zone 1 or Hazard Zone 0. Ilarsan contends that this construction is reinforced by principle 18 which excludes buildings in Hazard Zone 3 but not in other Hazard Zones and paragraph (a) of the last paragraph of the desired future character statement which excludes dwellings specifically in Hazard Zone 3. Ilarsan points to the provision contained in the sixth paragraph of the background section quoted at [23] above which envisages extreme restraints upon development in Hazard Zones 2 and 3 but envisages development within Hazard Zone 1 subject to appropriate siting, build up of floor levels, etc.
Ilarsan points to principles 3 and 4 of the Animal Husbandry Zone section which do not address Hazard Zone 1 but exclude building in Hazard Zone 3 and contemplates dwellings and other buildings in Hazard Zone 2 (only if supported by civil engineering advice).
Ilarsan contends that the reference in principle 2 of the Flood Plain Area section of the Development Plan to “creating additional allotments straddling the Policy Area” is to an allotment straddling the boundary between Hazard Zone 2 (and 3) and Hazard Zone 1 (and 0). Ilarsan contends that, as the Land falls entirely outside Hazard Zones 2 and 3, that principle does not evince a policy against the creation of additional allotments. Ilarsan contends that the allotments proposed within the Land contain an area of at least 1500 square metres outside Hazards Zones 2 and 3 as required by principle 2.
The Council contends that Ilarsan’s submissions conflate development by way of built form with development by way of creation of allotments. Principle 18 and the third paragraph of the desired future character statement in the Flood Plain Area section are addressing built form and not creation of allotments. Similarly, principles 3 and 4 of the Animal Husbandry Zone section are addressing built form. By contrast, the text at the conclusion of objective 3 for the Flood Plain Area addresses the creation of allotments specifically and makes clear that no additional allotment should be created within the Flood Plain.
The Council contends that the reference in principle 2 to “creating additional allotments straddling the Policy Area” refers to an allotment which is partly inside and partly outside the Flood Plain. Principle 2 only contemplates the creation of allotments where there is a substantial area outside the Flood Plain which, if it stood separately from the area within the Flood Plain, would merit subdivision in accordance with the principles applying to the Animal Husbandry Zone.
Analysis
It is common ground that a development plan is not to be construed like a statute. In Telstra Corporation Ltd v Corporation of the City of Mitcham,[4] Debelle J (Prior, Nyland, Williams and Martin JJ agreeing) said:
The court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute … A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates … As the court said in District Council of Mallala v M&B Farmer Nominees Pty Ltd at 449, the Plan does not always use expressions in a consistent manner. Thus, in order to determine the intended meaning it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Plan. This case provides an instance of expressions not being used in a consistent manner in that two expressions are capable of applying to one kind of development.[5]
(Citations omitted)
[4] [2001] SASC 166; (2001) 79 SASR 509.
[5] (2001) 79 SASR 509 at [25].
Considered as a whole, the Development Plan expresses a consistent and recurring concern about flood protection and development within the Flood Plain. This is reflected in objectives 58 to 62 in the Council Wide section of the Development Plan:
Flood Protection
Objective 58:     Development located and designed to avoid or be reasonably   protected against tidal and/or stormwater flooding and having regard   to potential sea level rises.
Objective 59:     Protection of life and property from the effects of flooding.
Flooding of the Gawler River has been recorded many times since settlement, the largest flood being in 1889 which was estimated to be more than twice the magnitude of the predicted 100-year flood, and which claimed two lives. Stock and property losses over the years have not been estimated, however they would be considerable.
The continued growth of development in this area increases the risk to both life and property and planning authorities are obliged to consider flood related issues when assessing development within recognised flood plains.
Objective 60:     The prevention of development which could lead to a potential hazard                in the event of a major flood.
Control of all development within the flood plain is necessary to ensure that hazards are not created.
Objective 61:     Development on the flood plain which minimises impedance to the                   flow of floodwaters.
Buildings, solid fences and increases in the level of land all have the potential to impede the flow of floodwaters or change the pattern of the movement of floodwaters. This in turn may increase the depth, velocity or spread of floodwaters in other parts of the flood plain resulting in an increase in the damage or inconvenience in that location.
Objective 62:     Development on the flood plain in a manner which recognizes that the   level of flood hazard varies within the flood plain.
“Flood hazard varies across flood liable areas because the type of properties, the depth and velocity of floodwaters, and the difficulty of evacuation all vary from one location to another. Towards the edge of the flooded area, depths are generally shallow and floodwaters move at slow speeds. Consequently, such areas generally have a low degree of hazard. In contrast, floodwaters are generally deep and flow swiftly in the vicinity of the main river channel and other major flood flow-paths. These areas generally have a high degree of flood hazard.”
(Flood Plain Development Manual, NSW Government, Dec 1986 page 21).
It is also reflected in principles 61 and 62 of the Council Wide section of the Development Plan:
Flood Protection
61    Development which is likely to be affected by flooding must not be undertaken where:
(a)     there is a significant risk of flood (including allowance for sea level rise and         coastal processes), or where the risk of flooding of other land will be                   significantly aggravated; or
(b)     information is available indicating that significant risk to life or property             could result when the land is flooded.
62    Dwellings should be designed to minimise the risk of flooding (including, by sea    level rise), by appropriate siting and by raising the dwelling floor level with    ground fill of good quality composition and compacting providing suitable ground        stability in the event of flooding and to a level which, together with the induct vent      of the septic system, is above the level (including allowance for sea level rise)      which would be affected by flooding in a 1-in-a-100-years Average Return    Interval, or known flood level, whichever is the greater.
Within the Animal Husbandry Zone section, a distinction is drawn between development by way of built form and development by way of land division. Principles 3 and 4 address development by way of built form, and draw a distinction between Hazard Zones 3, 2 and elsewhere because the likely level and flow of floodwaters in the higher numbered hazard zones obviously make built form development more hazardous. By contrast, principle 7 addresses not only built form and change of use but also development by way of land division. It makes non-complying any land division (except where required for flood management) creating an allotment below 40 hectares in an area within the Flood Plain.
The section addressing the Flood Plain Area draws a similar distinction between built form (or land use) on the one hand and land division on the other hand. The sixth and seventh paragraphs under “Background” address built form development and distinguish between Hazard Zones 1, 2 and 3 for similar reasons as in the Animal Husbandry Zone section. The desired future character statement addresses built form development and land use as opposed to land division. Again, the reference in the third paragraph distinguishing between Hazard Zone 3 and other areas relates to built form (dwellings) rather than land division. Principles 13 to 18 explicitly address built form development and again a distinction is drawn between Hazard Zone 3 and other areas.
The text at the conclusion of objective 3 of the Flood Plain Area section expresses a strong policy against the creation of additional allotments beyond those required to facilitate flood management purposes. This is expressed in similar language and to similar effect to principle 7 of the Animal Husbandry Zone section which makes non-complying the creation of allotments less than 40 hectares except where required for flood water management.
In summary, the other provisions (leaving aside principle 2 of the Flood Plain Area section) of the Development Plan evince a strong policy against division of land within the Flood Plain, and especially division creating allotments less than 40 hectares.
The reference to “creating additional allotments straddling the Policy Area” in principle 2 as quoted at [26] above should be construed in the manner contended by the Council, namely allotments which in part fall outside the Flood Plain entirely. It does not refer to an allotment straddling the boundary between Hazard Zone 2 and Hazard Zone 1. If the latter had been intended, the principle would have been differently expressed. Construing the reference to straddling as applying to land which is partly outside the Flood Plain entirely is consistent with the other provisions of the Development Plan and in particular the provisions which make non-complying the creation of additional allotments lying wholly within the Flood Plain referred to in objective 3 of the Flood Plain Area section and the subject of principle 7 of the Animal Husbandry Zone section.
The intent of principle 2 of the Flood Plain Area section is that, where a significant portion of land falls outside the Flood Plain Area, the mere fact that some of the land falls within the Flood Plain Area does not preclude the creation of additional allotments.
If principle 2 were construed so as to permit the creation of additional allotments entirely within the Flood Plain as long as there were at least 1500 square metres of each allotment outside Hazard Zones 2/3, there would be a conflict between that principle and the test following objective 3 of the Flood Plain Area section and principle 7 (land division) of the Animal Husbandry Zone section.
Principle 2 should not be construed in a manner such that, provided there is a nominal amount of land outside the Policy Area (taking as an extreme example, 1 square metre), the creation of additional allotments is permitted merely because each allotment will contain at least 1500 square metres of land outside Hazard Zones 2 and 3.
In the present case, the entirety of piece 21 falls within the Flood Plain. It is little more than fortuitous that the southern 25 metres of piece 22 falls outside the Flood Plain. The mere existence of that insignificant amount of land falling outside the Flood Plain does not change the position in a substantive sense. In substance, the merits of land division are the same as if the whole of the Land fell within the Flood Plain.
The Commissioner correctly construed the provisions of the Development Plan. She did not make any legal errors in doing so.
Conclusion
The appeal is dismissed. I will hear the parties as to consequential orders.