John Hawker v The Greater Taree City Council - [2004] NSWLEC 31

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: John Hawker v The Greater Taree City Council [2004] NSWLEC 31

PARTIES:
APPLICANT
John Hawker
RESPONDENT
The Greater Taree City Council

FILE NUMBER(S): (1)0470 of 2002

CORAM: Murrell C

KEY ISSUES: Development Application :- dwelling house in a floodway

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Greater Taree Local Environmental Plan
Flood Plain Management Manual of NSW Government

CASES CITED:

DATES OF HEARING: 02 and 03/10/2003 -
Written submissions received 15/10/2003

DATE OF JUDGMENT: 03/05/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A White, solicitor
SOLICITOR
Benetatos White
RESPONDENT
Mr A McKelvey, solicitor
SOLICITORS
P J Donnellan & Company
RESPONDENT
Mr A McKelvey, solicitor
SOLICITORS
P J Donnellan & Company

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

(1)0470 of 2002

Murrell C

5 March 2004

John Hawker

v

Greater Taree City Council

Judgment

Introduction
1. This is a judgment for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against the refusal of Greater Taree City Council of a development application submitted in October 2001 for the erection of a two storey dwelling house on the land known as No. 15 Appletree Street, Wingham.
2. The subject site, is Lot 18 in DP 250731. The adjoining Lot 19 in DP 250731 known as No. 17 Appletree Street, Wingham, was also the subject of a development application.
3. By way of background the council refused development consent for the erection of dwellings on both Lots 18 and 19 (Nos. 15 and 17 respectively) Appletree Street. While appeals were lodged in respect of both applications No. 15 only proceeded to a hearing. It was also brought to the Court’s attention that a development application for a dwelling at No. 5 West Appletree Street was approved by the council in September 2003 following a review of council’s original decision to refuse the application. And it is also noted that the officer’s report recommended refusal. At the same meeting a review of the council’s decision on the current application the subject of this appeal was considered and council confirmed its previous decision to refuse the application.
4. The subject site is on the northern side of Appletree Street and is the second lot east of the junction with Kindarun Close. The land is currently vacant and has an area of 565.5 m2. The application proposes all habitable rooms on the first floor. The level of the land is between about 12. and 13m AHD. A raised walkway with an RL of 13.3 m AHD is proposed for safe wading in the 1% flood event to the roadway that has an RL of 13.5m AHD.
5. The Wingham Floodplain Management map at Fig 1 shows the subject site and other sites the subject of evidence during the proceedings and the aerial photograph at Fig 2. shows the natural features and infrastructure.

Issues
6. A Statement of Issues was provided stating that the development application was refused for the following reasons:

1.

The proposed development does not comply with the objectives of the rural general zone.

2.

The proposed development does not comply with the provision of cl 10.1 of the Greater Taree DCP 1995.

3.

The proposed development is contrary to the Wingham Peninsula Flood Management Plan (WPSMP).

4.

The proposed development is contrary to the Greater Taree Interim Flood Management Policy 1987.

5.

The proposed development is contrary to the Hunter Regional Environmental Plan.

6.

The proposed development is not in the public interest as it represents the threat to public safety during periods of flood and it is likely to lead to increased demand on emergency services.

Statutory planning framework and guidelines
7. The Hunter Regional Environmental Plan is relevant in that it promotes strategies to control development of flood liable lands and encourages floodplain management practices.
8. The Greater Taree Local Environmental Plan 1995 zones the subject site 1(a) – Rural General. The General Rural zone objectives include:

(d) The protection of development from significant hazards particularly risks from bushfire or flooding so that development would not be likely to increase those hazards.

(b)

The promotion of rural tourist facilities which are appropriate for and require a rural location for efficient operation;

(c)

The promotion of industries which require special environmental conditions …

(d)

The enabling of development for purposes that are appropriate in a rural location, appropriate for agriculturally productive land used for grazing and cropping and sympathetic with the environmental characteristics of the land.

10 . The minimum subdivision size in the 1(a) Zone is 40 ha. However, cl 15 allows dwellings to be erected on an existing holding of land shown in Schedule 1 and this includes the subject site.

A person shall not erect a building or carry out a work on flood liable land recorded at the office of the council, without the consent of the council

The council may as a condition of its consent require the floor of the building or work to be erected at a height sufficient, in the opinion of the council, to prevent or reduce the incidence of flooding of that building or work of adjoining land.

The council shall take into account as a matter for consideration in determining a development application the effect of the proposed development on flooding.

12 . The Interim Flood Management Policy of 1987 took effect as a final policy in July 1988. The aims and objectives of the policy include:

To ensure that acceptable standards of safety to life and property are applied when council considers proposals for development on flood liable land.

To ensure that development is not permitted in flood liable areas where that development would result in unnecessary risk to life of occupants or rescuers, or in unwarranted public costs.

To ensure that development that is approved in flood liable areas is structurally capable of withstanding the affects of flowing flood waters including debris and buoyancy forces.

To ensure that development on flood liable land does not adversely affect flood behaviour.

13 . The policy also includes requirements for development applications and for high hazard areas the applicant is required to satisfactorily demonstrate that “permanent, fail safe, maintenance free measures are incorporated in the development, to ensure the timely, orderly and safe evacuation of people from the area, should a flood occur”. In addition applicants are also required “to demonstrate that the displacement of people will not significantly add to the overall costs and community disruption caused by the flood”.

Dwelling houses will not be approved on flood liable hobby farm sites unless the application demonstrates to the satisfaction of the council that the following requirements will be satisfied:

(a)

The dwelling house and provision for at least one vehicle should be constructed on a certified mound;

(b)

In high hazard areas access from the dwelling house to a flood free area of land which has already vehicular access to a communal flood refuge show either be flood free or be achievable by wading through water meeting the safe wading criteria defined in the Manual;

(c) In addition to the above council will take into account the existing and proposed usage of the site, the likelihood of the site being cut off early in a flood event, the flood warning time available, the isolation and duration of cut of the site by flood waters and the provisions of the Manual.

New South Wales Government Floodplain Management Manual

“Once a flood plain risk management plan has been adopted the next phase is its implementation. Certain components can be implemented relatively quickly, such as incorporating flood related development controls into policy and EPI's and flood education including public awareness programs. …

LEPs and DCPs are the most effective means of controlling the development of Flood prone land. In this regard, after the adoption of a management plan, councils should prepare amendments to its plans as a matter of some urgency to give effect to proposed land use and development controls. Amendments to LEPs should be prepared when council considers it appropriate to change, restrict or cultivate land uses in flood prone areas. Council should also take steps, where it considers it necessary, to amend the DCPs and local policies which incorporate flood related development controls. …

It is unlikely that any floodplain management plan could be implemented immediately in its entirety. For example, availability of funding will determine when certain options can commence, e.g. voluntary property purchase. Consequently, a strategy needs to be developed to implement the various elements of the management plan over time.

16 . Under the Government’s 1986 Manual the Wingham Peninsula Floodplain Management Plan (WPFMP) – draft was prepared by consultants in February 2000 and Council approved a number of recommendations in December 2000.

1

To reduce risk to life and property already on the floodplain;

2

To reduce the number of lives and property at risk;

3

To stop more lives and property from being exposed to risk.

18 . In terms of the latter action, the WPFMP recommended that the interim flood policy be revised to, amongst other things, eliminate the hobby farm principle that allows residential development to be approved in a high hazard flood way and prohibit new residential development in these areas. The WPFMP also recommended that council revise the LEP to ensure compatibility with the revised flood policy and that the DCP be amended by the insertion of a specific section for Wingham to include: a plan showing areas of high hazard floodway; high hazard flood fringe and voluntary house purchase area; and no residential dwellings in high hazard floodway except in special circumstances essential to support compatible land use; dwellings must withstand extreme floods that is 1:500 year annual chance; and a requirement for engineering certificates with flood design perimeters provided by council. And residential development allowed in high hazard flood fringe to be subject to merits and conditions: floor level control; vehicular access at street level; structural adequacy; and evacuation planning considerations.

19 . The WPFMP also recommended that the provisions of the SES evacuation plan are to be taken into account to ensure that development will not compromise the plan, or expose emergency response resources to undue risk, before considering whether to grant development consent.

20 . In Minute No. 356 dated 20 December 2000 council generally adopted the above recommendations. The notable exception was the voluntary house purchase scheme.

Greater Taree Development Control Plan of 1995

Discussion of evidence and submissions and findings
22. It is important to note that while council resolved to consider amending its LEP, DCP and other documents to give effect to the WPFMP no such action was taken by the council and the instruments were left unamended. I do not accept the submission made on behalf of the council that amendments and policy changes were made as a result of council resolving in December 2000 to give consideration to the recommendations of WPFMP. The Floodplain Management Manual sets out a clear process and states that:

The management plan forms the basis for revision to council’s environmental planning instruments to incorporate floodplain risk management outcomes. This enables consultation of the community in a responsible and socially cohesive fashion in consideration of flood related issues. It also provides certainty, from a flooding perspective, for development application outcomes in line with the requirements of the relevant instruments… the management plan provides the basis for more timely assessment of applications of flood prone land, especially where appropriate amendments have been made to councils instruments, development control plan or local flood plain risk management policy.”

23 . The officers report to council dated 24 September 2003 included three matters for the council’s consideration: an update on the WPFMP; a review of the determination of the subject development application at No. 15 Appletree Street; and a review of No 5 West Appletree Street. For the s 82A review, under the Act, of the subject application Council resolved to maintain its decision to refuse the application. At the same meeting the council resolved to approve the development application for No. 5 West Appletree Street on a s 82A review.

That council continues to liaise with the SES through the Manning River Floodplain Committee. Following on from a previous committee meeting it was recognised that there was a black spot for data in the Cedar Party Creek area. The Bureau of Meteorology was contacted and a rain gauge has been installed, which will enhance information available for the flood prediction modelling in this area.

A brief has recently been prepared for a consultant to review council’s interim policy 1987. This brief has been sent to a number of consultants and the Floodplain Committee is awaiting a response prior to selecting a consultant to undertake the task. It is expected that responses from consultants will be received by early October. Council currently has funding of $10,000 available from its own sources and those of the Department of Infrastructure Planning and Natural Resources.

26 . Under the heading of Local Environmental Plan and Development Control Plan 1997 the recommended actions were that the council revise the LEP to ensure compatibility with the revised flood policy and that the DCP also be amended. Under the heading of implementation the report states: “Council’s policy decision is currently being implemented and will be updated in LEP 1995 and DCP 1995 as revisions occur”.

we should be able to rebuild our houses

This policy position clearly relates to the potential problem of evacuation of the peninsula in times of major flood events. The costs to the community and the risk of exposure for the people involved in the evacuation should be minimised. It does appear, however, that there is an inequity in the current policy framework for areas that are included in the high hazard floodway but not included in the voluntary house purchase zone. It would appear that either the VHP zone should be extended to correlate with high hazard floodway designation or infill development – replacement development should be considered for the area between the high hazard flood storage and the VHP zone. It is proposed later in this report that a subcommittee of the Manning Floodplain Management Committee be established to focus on the WPFMP and its implementation. This issue is a matter that should be referred to that committee for consideration in the first instance to enable council to review this aspect of the policy.

“loss of property values”,

Many residents are saying that the WPFMP has caused a significant loss of value of the property. It is clear that values on the peninsula strongly relate to what people can or cannot do with their particular property. It is also clear that council has been inconsistent in its approach to development in this area. However, given the ongoing work in regard to understanding both flooding on the Manning River and an appropriate policy response to land use in regard to that flooding risk, it is perhaps understandable that council has had a varying reaction over time. However, in light of the detailed work now carried out and publicly available in regard to the flood risk at the Wingham Peninsula, council is now in a difficult position. With the consultant saying that houses will be destroyed and potentially lives will be lost, there is a much greater responsibility falling on council in regard to its policy position. …

The most honest approach in regard to this situation, and the fairest to the residents in the area, is the same policy position that is being applied throughout the State and that it is the voluntary purchase scheme.

29 . In terms of the residents’ concern “ vacant land should be able to be built on ” the report notes that “in the long run the desirable outcome would be for these areas of vacant land to be consolidated as a curtilage to the remaining dwellings on the peninsula or consolidated for agricultural uses”.

30 . The residents’ concern “council has been inconsistent in its decision making”. The report comments that “inconsistent decision making does confuse the community and the market place and it is hoped that council will clarify and maintain a clear policy position into the future”.

it is probably fair to say that since documentation of the Floodplan Management Plain in February 2000, more outcomes could have been achieved for residents living on the peninsula. In order to ensure that ongoing progress is made in regard to the broad recommendations of the Management Plan it is proposed that a subcommittee of the Manning Floodplain Management Committee be established … to ensure progress across the range of resolutions made by council.

32 . This same officer’s report of September 2003 comments on the subject development application before the Council at that time wherein the applicant’s consultant contended that it is overly conservative to presume that 1% flood conditions in regard to Cedar Party Creek will coincide with the 1% flood conditions for the Manning River on Wingham Peninsula. The flood study and the WPFMP do not include detailed flood modelling of Cedar Party Creek. In the consultant’s comments on the Cedar Party Creek/Appletree Street issue he supported the WPFMP commentary in regard to the area of the peninsula affected by flooding directly from the Manning River.

Council's call for review of the WPFMP has highlighted the need for further action in regard to flood management on the Peninsula together with a need to resolve aspects of the policy in relation to both the voluntary house purchase proposals and the relationship between the designated high hazard floodway areas and any voluntary house purchase proposal.

It is also clearly desirable to engage local residents in seeking to resolve these matters. To that extent, the recommendation for a Wingham Peninsula Flood Management Plan Committee should be seen as being critical to establish as soon as possible. This group can then work closely with Council representatives and the SES to ensure that the community's preparation for flood impacts is as good as we can make it.

34 . For the establishment of a sub-committee – ‘ Wingham Peninsula Floodplain Management Committee’ the report recommended the composition of four resident representatives, two SES representatives, two councillors and representatives of the relevant departments to ensure ongoing implementation of the management plan and that this committee consider and advise council in regard to the inconsistency between the high hazard flood area and the voluntary house purchase zone.

35 . Importantly the council resolved in respect of the Floodplain Management Plan for Wingham Peninsula that it be reviewed with a report back to council in February 2004.

36 . The report for the extraordinary meeting of council of 24 September 2003 with the three items, that is the Wingham Peninsula Floodplain Management Plan; the review of the determination for No. 15 Appletree Street; and the development application for 5 West Appletree Street, was regrettably only made available to the Court at the end of the proceedings. This report clarifies a number of questions raised by the Court with respect to the actions that council has taken and recommendations adopted from the Wingham Peninsula Floodplain Management Plan.

37 . On behalf of the applicant evidence was given to the Court by Dr Terry Lustig, consultant engineer.

38 . For the respondent council evidence was given to the Court by Mr Bruce Byatt, council’s development control manager and Mr Bruce Druery, a consultant civil engineer.

39 . Mr Druery considers that the ‘probable maximum flood’ (PMF) level is the appropriate standard for the purposes of development control on the Peninsula. When questioned as to whether it was overly conservative he considered that it is not because of the velocity and the depth in the subject area and the risk to human life in the event of the need to rescue people. He said that the subject land was within the PMF although it was outside of the floodway in the 1% flood. However, he commented that it was a matter for the community to decide in the knowledge of the hazards as to how it balanced the risk but in his experience people do not heed flood warnings. He considered that given the classification of the land in the floodway and the hydraulic category of high hazard floodway he considered the risk to human life including rescuers was unacceptable.

40 . Dr Lustig on the other hand considers the 1% flood level appropriate for development control purposes and not the PMF. The subject property is within an area he describes as high hazard fringe not floodway because of the velocity of the water being at a slow rate. He estimated the velocity of the water to be about 0.25 m per second while Mr Druery initially considered it to be at the rate of 1 m per second. Dr Lustig also considered that the coincidence of a flood from Cedar Party Creek and the Manning River would be unusual and would represent a 1 in 400 year event. He considered that Cedar Party Creek would peak some 20 to 30 hours before the Manning River. In any event he considered that it would be of zero or low velocity in the vicinity of the subject land.

1.

It is agreed that the calculations of velocity and depth by Terry Lustig in Cedar Party Creek are sufficiently accurate.

2.

The maximum velocity at Lot 18 with a 1% flood in Cedar Party Creek with the Manning River in flood is of the order of 0.25 m per second.

3.

We judge that no floodwaters will flow from the Manning River towards the vicinity of Lot 18 Appletree Street up to about the 500 year flood.

4.

We judge that there will not be serious flow from the Manning River to Lot 18 up to the 2000 year flood. This is thought to be at about RL 19 m AHD.

5.

We are not in agreement with the magnitude of the velocities in the vicinity of Lot 18 in a PMF.

6.

It is agreed that the model does not simulate the 1978 flood behaviour, which is close to the 2% flood. The northerly flow across the peninsula is not observed at any time during the time. This has been traced back to characteristics of the model. This in turn has called into question the results of the 1% flood (accept community view little velocity).

7.

A review of the peak velocities for the 1% flood judged to be reasonable is shown attached (a revised Fig 2 in Exhibit F).

8.

It is agreed that it is feasible to build a house on this floodplain such that it will be not destroyed (Mr Druery recommended the 1 in 500 year flood PMF)

9.

Provided the occupants evacuate before floodwaters inundate Appletree Street in front of Lot 18, it is agreed that they will be able to reach the Evacuation Centre (the Town Hall).

10.

In relation to Lustig’s claim that the 1% level should be 0.2 to 0.3 m lower agreement could not be reached as Mr Druery wished to review the latest guidelines. Thus Lustig would take the 1% level as 14 to 14.1 m AHD and Druery would prefer 14.3 m AHD at this stage.

11.

concerning the economic analysis of the benefits and costs Druery did not take account of the social affects of the disaster to a whole community particularly its ability to recover. Lustig would agree but points out there are mechanisms such as insurance and Government’s assistance available.

12.

It is agreed that the PMF should be taken as an upper bound for testing the feasibility of a development.

The flood planning level (FPL) used for planning control purposes is derived from combination of the adopted flood level plus freeboard. …

It is neither feasible nor socially or economically justifiable to adopt the PMF as the basis for flood or property modification measures. Lesser floods are normally adopted as the basis for FPLs to set planning controls, or protection levels. …

The selection of FPLs is a crucial component of the floodplain risk management process. Flood planning levels determine the area of land (flood planning area) on which specific flood related planning and development controls will be imposed (such as minimum floor levels). Unless the PMF is used as the basis for the FPL, which is unlikely in practice, the FPL does not define the limit of flood prone land and can not be used to define an upper limit of flooding as there will always be flood prone land outside the flood planning area. ...

Development control requirements stemming from FPLs are then incorporated in council's LEPs, DCPs or policies.

The merit approach is inherent in the selection of a FPL. It involves comparing social and economic considerations with the consequences of flooding, with a view to balancing the potential for property damage and danger to personal safety against the value of floodplain occupation. These comparisons do not consider the additional factor of safety provided by the freeboard. If the adopted FPL is too low for the type of development, new development may be inundated relatively frequently, people may be subject to unnecessary danger, and damage to associated public services will be greater. Alternatively, adoption of an excessively high FPL may subject land that is rarely flooded to unwarranted controls, reducing its productive usage to flood compatible activities. …

It is unlikely and generally impractical for the FPL to be based on the PMF level. …

It is prudent to assess the impact of larger events such as the PMF or an extreme event, and for a council and SES in partnership, to put in place the necessary plans to prepare for, respond to, and recover from the impacts of that flood. This needs to be undertaken with particular regard to the provision of emergency services, flood education programs and local flood plans.

43 . I preface my findings by saying that the role of the Court in this matter is to assess the merits of the application against the planning framework-policies, controls and guidelines. And these proceedings do not provide the opportunity for an inquiry into the accuracy or classifications of the Wingham Peninsula Floodplain Management Plan.

44 . West of Rowley Street the Wingham Peninsula is categorised as ‘high hazard floodway in the Management Plan at Fig. 4 - hydraulic categories (refer to Fig 1 attached). There is only a relatively small area of the peninsula classified as high hazard flood fringe’ and this is between the contours of 14 m to 22 m. The school site approximately opposite to the south of the subject site is also within the high hazard floodway although this land is considerably higher than the subject site rising close to 18 m whereas the subject site is within the vicinity of the 12 m contour. Figure 5 of the Management Plan depicts the 1:100 annual chance of flood hazard and shows the subject site at the rear as falling partly within the extreme hazard area with the centre portion being in the very high hazard, and near frontage of the site - high hazard zone. For the probable maximum flood the site is within the extreme zone and this covers the majority of the peninsula. Under the Management Plan the subject site is not included in the voluntary house purchase zone which is between Steele Street on the western side and Barnard Street on the eastern side. It is noted that the plan also identified sections of road to be infilled and regraded and that section of road in front of the subject site has been raised in level to 13.25.

Floodway

s

are those areas where a significant volume of water flows during floods. They are often aligned with obvious natural channels. Floodways are areas which, even if partially blocked, would cause a significant increase in flood levels and/or a significant redistribution of flood flow, which may in turn adversely affect other areas. They are often, but not necessarily, areas with deeper flow or areas where higher velocities occur.

Flood storage

areas are those parts of the floodplain that are important for the temporary storage of floodwaters during the passage of a flood. If the capacity of a flood storage area is substantially reduced by, for example, the construction of levees or by landfill, flood levels in nearby areas may rise and the peak discharge downstream may be increased. Substantial reduction of the capacity of a flood storage are can also cause a significant redistribution of flood flows.

Flood Fringe

is the remaining area of land affected by flooding, after floodway and flood storage areas have been defined. Development in flood fringe areas would not have any significant effect on the pattern of flood flows and/or flood levels.

The Manual describes the "nature of flooding" in relation to High Hazard Floodways viz:

The depth and speed of floodwaters are such that buildings could sustain major structural damage and in extreme cases, light framed houses could be washed away;

There could be major difficulties and dangers in evacuating people and their possessions;
There may be a danger to life; and,
Social disruption and financial loss could be very high.

FLOOD HAZARD CATEGORISATION

The product of velocity x depth (V x D) is a measure of the destructive power of flood flows. Different categories of hazard can be identified:

Low Hazard

depth less than I m & VxD less than 1.0.
Limit at which a healthy adult can wade through flood waters

High Hazard

Depth greater than 1 m and V x D less than 1.0
Wading not possible, risk of drowning.

Large trucks still able to negotiate flood waters.
damage likely to be restricted to building contents; structural damage likely when depths exceed 3 m.
post flood recovery mostly related to individual landowner efforts

Very High Hazard

depth greater than I m and V x D between 1 and 2.
Too dangerous for trucks
Extensive structural damage to light frame buildings and infrastructure likely.
Great risk to life.
Considerable post flood recovery requiring community effort

Extreme Hazard

Depth greater than I m and V x D greater than 2
All buildings and infrastructure likely to be destroyed.
Anyone caught in flood would probably perish.
Enormous post flood recovery effort by community.

46 . In response to a request by the Court at the hearing the council subsequently provided information to show dwellings and vacant blocks in the high hazard floodway on the peninsula. Council stated that dwellings approved but not constructed had not been indicated as “council was unable to easily extract it from its records”. A copy of this plan together with approvals referred to in evidence is shown in Fig. 1. From this it can be seen that dwelling houses have been constructed to the immediate west of the subject site on the corner, and more recently in Kindarun Close (approved in 2000). Adjoining the subject site to the east is a vacant block of land and further to the east the next four land holdings each contain a dwelling house. Opposite the subject site on land adjoining the high school site there are 10 dwellings on individual sites. The aerial photograph in Fig. 2 also shows the location of existing dwellings on the peninsula.

47 . It was submitted on behalf of council that the SES Evacuation Plan was in an unsatisfactory form. However, in response to the Court’s request that the evacuation plan be forwarded after the hearing the council responded that “the council was unsure whether a document such as this exists as the relevant SES personnel were not presently available”.

48 . From the evidence it is clear that the council has not been consistent in its decision making since the draft Wingham Peninsula Floodplain Management Plan was prepared. Approvals include: No. 5 West Appletree Street in September 2003; No. 11 West Appletree Street in October 2002; Lot 2 in Kindarun Close in December 2000 (received October 2000); and Lots 3 and 4 East Combined Street in 2002 with a condition that the two lots totalling approximately 2 ha be amalgamated. Refer to Fig. 1.

49 . It is also noted that there have been a number of other approvals by council since council adopted the interim flood management policy as a final policy in July 1988, amended in 1995. This policy had a zoning extract of the Wingham area where a considerable part of the peninsula is zoned 1A and cl 10.3 applied provisions of hobby farms for the erection of dwellings on existing allotments.

50 . While it is understandable that the applicant may be aggrieved by the lack of consistency in council’s decision making, nonetheless the classification of the subject land as being in a ‘high hazard floodway’ in the WPFMP has led me to conclude the erection of a dwelling house could not be supported by the Court. It would be irresponsible of the Court to ignore the Wingham Peninsula Management Plan despite the fact that during the hearing certain elements were called into question., including the adoption of the PMF as the FPL of the lower velocities and the flow in the vicinity of the site.

51 . As I stated above the Court must assess the application in the context of the relevant policies, controls and guidelines. The Court cannot reclassify the land from a ‘floodway’ to ‘flood fringe’, or change the hydraulic category from ‘high hazard’ to ‘low hazard’. The Wingham Peninsula Floodplain Management Plan was prepared in accordance with the NSW Government’s Manual.

52 . While I recognise that the council has not taken the necessary steps to fully implement the WPFMP it would appear from the evidence to the Court, in particular, the points of agreement between the expert consultants included above, and the report to the council of 24 September 2003 that a review and a comprehensive and strategic approach needs to occur for the Peninsula.

Local Government Act of 1993

In any prosecution of the council for alleged negligence in respect of giving a consent to development on the Wingham Peninsula which was subsequently destroyed or associated with a loss of life, it will have been necessary for council to have acted in good faith at the time that it granted the consent for the purposes of establishing that immunity. Presumption of good faith is raised by subsec (4) of s 733 which is in the following terms:

“733. (4) Without limiting any other circumstance in which a council may have acted in good faith, a council is, unless the contrary is proved, taken to have acted in good faith for the purposes of this Section if the advice was furnished, or the thing was done or omitted to be done, substantially in accordance with the principles contained in the relevant manual most recently notified under subsec (5) at that time”.

54 . From these proceedings to my mind there are a number of issues that need to be addressed by the council and indeed some of these have been recognised as revealed in the report to council of 24 September 2003. From the evidence of both parties experts a review of the WPFMP would appear to be appropriate in the first instance, and then the formulation of a strategy to implement same with subsequent actions that council may take including the necessary amendments to the LEP, DCP and council’s policies. The Government’s Manual and the processes outlined therein should be followed not only in terms of community consultation reviewing the Plan but also in terms of implementation and the preparation of an evacuation plan.

55 . While it is unfortunate that council has not been consistent in its decision making for development on the peninsula, nonetheless this would not justify approval of the subject development application by the Court, despite the fact the council has established undesirable precedents. Approval by the Court of a dwelling in an area designated as ‘high hazard floodway’ with associated risk to human life would not make for future sound decision making and could raise the expectations of other land owners seeking similar approvals. It is apparent to the court that the council should embark on a review to develop consistent policies and controls to provide certainty in its plan and decision making process.

56 . From the expert evidence to the Court from both parties it would appear that council’s Floodplain Management Plan for the Wingham Peninsula should be revised in the light of more information that has come to hand. However, it is not the role of the Court to reclassify land from a high hazard floodway to a flood fringe area or low hazard categorisation. With the current descriptors of the land in the WPFMP the application is contrary and inconsistent with the REP, the LEP zone objectives and council’s policies cited earlier. Furthermore, development in a floodway is inappropriate for the site and not in the public interest under s79C(1) of the Act because of the threat to human life and rescuers in the absence of an emergency evacuation plan. I note that the parties agreed the development, however, would not impact on adjoining lands and flood behaviour.

Orders

58. On the basis of my assessment above the Orders of the Court in this mater are:

_________________
J S Murrell
Commissioner of the Court
Rjs/ljr

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Citations

John Hawker v The Greater Taree City Council [2004] NSWLEC 31

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CITATION:	John Hawker v The Greater Taree City Council [2004] NSWLEC 31
PARTIES:	APPLICANT John Hawker RESPONDENT The Greater Taree City Council
FILE NUMBER(S):	(1)0470 of 2002
CORAM:	Murrell C
KEY ISSUES:	Development Application :- dwelling house in a floodway
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Greater Taree Local Environmental Plan Flood Plain Management Manual of NSW Government
CASES CITED:
DATES OF HEARING:	02 and 03/10/2003 - Written submissions received 15/10/2003
DATE OF JUDGMENT:	03/05/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A White, solicitor SOLICITOR Benetatos White RESPONDENT Mr A McKelvey, solicitor SOLICITORS P J Donnellan & Company RESPONDENT Mr A McKelvey, solicitor SOLICITORS P J Donnellan & Company