Pankhurst v City of Parramatta Council

[2024] NSWLEC 1777

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pankhurst v City of Parramatta Council [2024] NSWLEC 1777

Hearing dates:

9-10 October 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No DA/961/2022 for the demolition of existing structures and construction of a single-storey ninety-two (92) place centre based childcare facility with twenty-three (23) basement car parking spaces at 21B-23 Barangaroo Road, Toongabbie NSW 2146, is refused.

(3) The exhibits, other than Exhibit 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION — child care centre – flood risk

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cl 6.3

Parramatta Local Environmental Plan 2023, cll 1.8A, 5.21

Cases Cited:

Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

Texts Cited:

City of Parramatta Floodplain Risk Management Policy 2014

Category:

Principal judgment

Parties:

Maureen Pankhurst (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/00293029

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA/961/2022 (the proposal) at 21B-23 Barangaroo Road, Toongabbie, NSW (the site) by City of Parramatta Council (the Council). The site is legally defined as Lots 102 and 103 in DP 1086368.

2. The DA sought consent for the demolition of the existing 57 place childcare centre, tree removal, and construction of a new 72 place childcare centre with at grade parking for 18 vehicles, signage and front fence.

3. The appeal was subject to conciliation on 20 March 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 10 April 2024, pursuant to s 34(4) of the LEC Act.

4. The hearing of the appeal commenced with a site view on 9 September 2024.

Issues

5. The Council contends that the application should be refused due to the unsuitability of the site for the proposed development due to its flood risks to life and property, and its inability to allow for safe occupation and efficient and safe evacuation of people in the event of a flood.

The site and its context

6. The site is located on the southern side of Barangaroo Road. Pendle Creek, which is a tributary of Toongabbie Creek, runs along the western side of the site. There is an easement over part of the site providing access to the floodway from Barangaroo Road. There is a single-storey house adjoining the eastern boundary of the site.

7. The existing structures on the site are single-storey buildings, with vehicle access from Barangaroo Road.

8. The site is irregularly shaped, with an area of 2,145.1m², and with a frontage to Barangaroo Road of 39.41m.

9. The immediate context of the site is within a residential area of predominantly single-storey detached dwellings.

10. Part of the site (at the north-west boundary) is flood affected by a 1% Annual Exceedance Probability (AEP) flood. The Statement of Facts and Contentions (Ex 1) notes “…there is a very substantial flow immediately next to, and in part over, the site in a 1% flood”.

Background and the proposal

11. The application was lodged on 7 December 2022.

12. The application was refused by the City of Parramatta Council on 1 June 2023.

13. The Applicant filed the Class 1 Application in the Land and Environment Court on 21 September 2023, appealing against the Respondent’s refusal of the DA.

14. On 23 July 2024 the DA was amended with the agreement of the City of Parramatta Council.

15. The amended DA was notified from 31 July 2024 to 28 August 2024. Two submissions were received.

The proposal

16. The DA, as amended, seeks consent for demolition of the existing 57 place childcare centre, and construction of a new 92 place childcare centre with 23 basement car parking spaces, signage, landscaping and fencing.

17. The breakdown of the age and numbers of children and staff proposed within the playrooms of the new development is as follows:

Age of children	Number of places	Supervising staff
0-1 years	16	4
1-2 years	16	4
2-3 years	20	4
3-4 years	20	2
4-5 years	20	2
Total	92	16

18. The Flood Emergency Response Plan (FERP) (Ex 3 Tab 4) at 4.2 provides details of the flood evacuation route and flood refuge for flooding in excess of the 1% AEP event, (eg during a Probable Maximum Flood (PMF) storm event):

1. Staff members/visitors within the basement levels during the PMF event are expected to seek refuge within ground floor of the development.

2. Children/staff members/visitors within the ground floor are expected to seek refuge above the PMF within the ground floor (set at PMF level).

Planning framework

19. The site falls within the R2 Low Density Residential zone under the Parramatta Local Environmental Plan 2023 (PLEP 2023), which repealed the Parramatta Local Environmental Plan 2011 (PLEP 2011). However cl 1.8A of PLEP 2023 contains a savings provision stating:

(1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

20. This development application was lodged on 7 December 2022, prior to the commencement of PLEP 2023, and therefore PLEP 2011 applies.

21. PLEP 2023 is a relevant matter for consideration pursuant to s 4.15(1)(a)(i) of the EPA Act.

22. The site is zoned R2 Low Density Residential under PLEP 2011. The objectives of the zone to which regard must be had, are:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment.

To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.

23. The development is permitted with consent in PLEP 2011’s R2 zone as a “centre-based child care” facility.

24. The site is within the flood planning area, and therefore cl 6.3 Flood Planning of the PLEP 2011 applies. The wording of this clause is as follows:

6.3   Flood planning

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

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

(b)  to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c)  to avoid significant adverse impacts on flood behaviour and the environment.

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

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

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

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

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

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

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

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

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

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

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

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

(5)  In this clause—

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

25. The parties agree that a child care centre is categorised as a ‘sensitive use’ in the applicable Development Control Plan, the Parramatta Development Control Plan 2011 (DCP 2011) (Ex E).

26. The relevant DCP 2011 objectives regarding flooding (2.4.2.1) identified in the expert report are:

“O.3 To ensure that developments with high sensitivity to flood risk (eg. critical public utilities) are sited and designed to provide reliable access and minimise risk from flooding.

…

O.5 To prevent any intensification of the development and use of High Flood Risk Precinct or floodways, and wherever appropriate and feasible, allow for their conversion to natural waterway corridors.

…

O.8 To minimise the risk to life by ensuring the provision of appropriate access from areas affected by flooding up to extreme events.”

The associated design principles are:

“P1 New development should not result in any increased risk to human life.

…

P3 New development should only be permitted where effective warning time and reliable access is available for the evacuation of an area potentially affected by floods to an area free of risk from flooding. Evacuation should be consistent with any relevant flood evacuation strategy where in existence.

…

P.9 Development is to be compatible with any relevant Floodplain Risk Management Plan, Flood Studies, or Sub-Catchment Management Plan.

…

P.14 Council strongly discourages basement car parks on properties within the floodplain. Where site conditions require a basement car park on a property within the floodplain, development applications must provide a detailed hydraulic flood study and design demonstrating that the proposed basement car park has been protected from all flooding up to and including the PMF event. An adequate emergency response and evacuation plan must also be provided where basement car parks are proposed in the floodplain.”

27. DCP 2011 table 2.4.2.1.2 notes that sensitive uses and facilities are not appropriate for precincts with low, medium or high flood risk.

28. Parramatta Council has adopted a Floodplain Risk Management Policy 2014 which includes the following policy objectives:

“a. The risk to human life and damage to property caused by flooding is managed and, where possible, reduced through controlling development on land affected by potential floods and applying a “merit-based approach” to all development decisions which take account of social, economic and ecological considerations, and also their effect on infrastructure and services;

b. Developments with high sensitivity to flood risk (e.g. “critical” and “sensitive” land uses) are sited and designed to provide reliable access and minimise risk from flooding - in general this would not be anywhere within the extent of the Probable Maximum Flood (the largest flood that could ever occur)”

Expert evidence

29. The joint expert reports in evidence were as follows:

1. Flooding – Mr Bacha (Applicant) & Mr Clark (Respondent)

2. Ecology – Mr Fraser (Applicant) & Dr Rueegger (Respondent)

30. Concurrent oral evidence in the hearing by the flooding experts supplemented their joint expert report filed on 19 September 2024 (Ex 3). The flood experts disagree as to whether the flood risks posed by the proposal are acceptable.

31. The ecology experts were not called to give oral evidence as the contentions relevant to their expertise was resolved to the satisfaction of the parties prior to the hearing in their joint expert report filed on 10 September 2024 (Ex 2).

Flood affectedness of the site

32. The experts agree in their evidence that the site is identified as being within a hazard classification of H1, with a portion of the site being within the hazard classification of H3. The hazard descriptions provided in the Flood Impact Assessment are: H1 “relatively benign flow conditions. No vulnerability constraints” and H3 “unsafe for all vehicles, children and the elderly”.

33. The experts agree the north western corner of the site is affected by a 1% AEP flood event, and that the ground floor of the proposed development (proposed RL 30.3m) will be set above the 1% AEP flood level, and also above the level of the PMF. The experts agree that the site would be flooded during a PMF event, as would much of Barangaroo Road.

Consideration

34. Clause 6.3 of PLEP 2011 requires that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development:

• is compatible with the flood function and behaviour on the land;

• will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

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

• it incorporates appropriate measures to manage risk to life in the event of a flood.

35. The provisions of PLEP 2023 are also a relevant consideration; in accordance with cl 5.21, the consent authority must also consider:

• the impact of the development on projected changes to flood behaviour as a result of climate change;

• the intended design and scale of buildings resulting from the development; and

• whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood.

36. A Flood Impact Assessment prepared by Telford Consulting Pty Ltd dated April 2024 (Exhibit B Tab 3) and a Flood Emergency Response Plan (FERP) prepared by Telford Consulting Pty Ltd dated March 2024 (Ex B Tab 4) have been provided by the applicant. The experts agree that there will be a substantial flow adjoining the site during a 1% (AEP storm event.

37. Mr Bacha also noted that the basement is situated outside the 1% AEP flood extent (due to the basement crest/flood gate).

38. Mr Bacha therefore considers that during any flood event, children will have a safe refuge and not be exposed to flood risk as they will be located inside the building. A fence along the site to the western boundary is also proposed as a safety measure.

Flood Emergency Response Plan

39. Mr Bacha noted in his evidence that the child care centre would be closed and evacuated in accordance with flood warnings to prioritise the safety of children and staff during severe flooding in accordance with the FERP.

40. Mr Clark restated his view that a sensitive use such as a child care centre should not be placed in a PMF zone closely adjoining a major floodway which constitutes a high hazard with flows which are not static.

41. Mr Clark gave evidence that that there is no reliable access route for evacuation away from the building in the event of flooding and that the site will be cut off during a PMF event, requiring the occupants of the building to shelter in place. He noted that there would be significant evacuation difficulties due to the age and the number of children likely to be present, and the unpredictability of the behaviour of a large group of young children and their parents in a flood event.

42. Mr Bacha countered that evacuation can be either horizontal (i.e. away from the site), or vertical (i.e. within the building). The FERP provides for vertical evacuation to a place of refuge on the ground floor of the development.

43. Evacuation is not a defined term in the LEP. The Respondent noted that, in normal usage, evacuation means leaving a building, and provided an extract from the Macquarie Dictionary definition in support of this argument. I accept that this is the generally accepted use of the word, however, one of the definitions is “to move (persons or things) from a threatened place…to a place of greater safety” which would seem to encompass the definition being extended to include evacuation within a building.

Shelter in place as a strategy

44. Mr Clark expressed his lack of support for the Applicant’s proposed shelter in place strategy on the basis that it creates too high a risk for occupants.

45. The Respondent provided a letter from WMA Water (Ex 5 Tab 3) noting that Shelter in Place is an actively debated strategy; as there was no opportunity for the Applicant to cross examine the author of this letter during the hearing, limited weight is given to the document.

46. The Applicant noted that Shelter in Place was supported in the original assessment report by Council, and that approval has been granted by the City of Parramatta Council for a childcare centre on flood prone land adjoining the Parramatta River at 163-165 George Street Parramatta, DA/839/2015 with a shelter in place strategy. The assessment report for this DA was provided to the Court (Ex F). Mr Clark noted that exceptions had been made within the city centre to allow child care within tower buildings as otherwise there could not be childcare available and the two buildings were not comparable as the George Street structure is a large multi-use building.

47. Mr Bacha gave evidence that, in a flood event, it would not be logical for staff to seek a safe refuge area away from the building, and that vertical evacuation (i.e. to a safe space within the building) was the preferred procedure.

Duration of requirement to shelter in place

48. The experts agreed that the site will be isolated during a PMF event, as the road access is through flood prone land and thus unavailable during a flood event.

49. The duration of the requirement to shelter in place was discussed by the experts. The Flood Impact Assessment (Ex B Tab 3) modelled a 45 minute event.

50. Mr Clark gave evidence that a PMF event for this site may have a single peak with a duration of 30 - 60 minutes, as the site is at the lower end of the catchment, however he considered that it would more likely be protracted during multiple storm events. Mr Clark noted that Council has a 72-hour shelter standard, and that there was the possibility of multiple and sequential storm and flood events. I accept and agree with Mr Clark’s evidence in this regard.

Climate change allowance to be used in modelling

51. The Applicant objected to the references in the Joint Expert Report to climate change, along with the tender of the “Australian Rainfall & Runoff: A guide to Flood Estimation”; (Ex 5 Tab 2) on the basis that this document was not identified in the amended SOFAC (Ex 1), and was filed in its bundle of documents less than 14 days before the hearing, and that it is not a mandatory relevant consideration under the EPA Act nor referred to in the PLEP 2011. The objection was overruled, as the document was noted in the reference material in the joint expert report (Ex 3), and climate change is referenced in the PLEP 2011 under cl 6.3 which includes a requirement to take into account “projected changes as a result of climate change”.

51. The experts agreed that predicted flows and flood levels will substantially increase as a result of new climate change criteria. Mr Clark expressed his understanding that the 1% AEP event is predicted to substantially increase as a result of the new criteria, but stated that he was not clear of the implications of the new national climate change criteria details.

52. In the absence of new criteria or guidance against which to assess the proposal, it is reasonable for the application to be assessed against the current applicable standard.

Proposed management measures

54. The Plan of Management (POM) dated 11 March 2024 (Ex B Tab 8), in 4.3 Flood Actions repeats the management actions required as described in the FERP, which requires certain actions by the trained personnel/staff members before, during and after a flood, including:

• monitoring weather forecasts and flood predictions;

• following the site evacuation recommendations;

• preparing sandbags to block toilets and drains;

• ensuring that power, water and other utilities are completely turned off;

• protecting valuable machinery and equipment that cannot be relocated by enclosing in waterproof covers;

• informing the emergency services with the flooding situation; and

• no visitors are allowed to access the site in the same day of the flooding event.

55. The FERP requires staff members to know the flood risk that their property is subjected to, and lists sources of flood information, including websites.

56. Compliance with the POM and the FERP is necessary to achieve a safe working environment.

57. An important consideration is whether the POM or FERP “require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case” as per the planning principle established by Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315. In considering whether a management plan is appropriate for a particular use, the following questions should be considered:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6. Is the Management Plan to be enforced as a condition of consent?

7. Does the Management Plan contain complaint management procedures?

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

58. On the basis of the evidence before me, I accept Council’s submission that the POM places an obligation on staff to act in a manner that is unlikely or unreasonable in the circumstances of a PMF event, and therefore the proposal is contrary to cl 6.3(2)(d) of PLEP 2011 in that it does not incorporate appropriate measures to manage risk to life in the event of a flood. The POM and FERP identify tasks and responsibilities required of staff, but an important question is whether or not those people the subject of the POM can be reasonably expected to know of their requirements.

59. A crucial element, as expressed in DCP 2011 design principles 2.4.2.1, is that new developments should only be permitted where effective warning time and reliable access is available for the evacuation of an area potentially affected by floods to an area free of risk from flooding.

60. The POM and FERP documents require staff to monitor flood events, but they do not include information on any warning system to alert staff of dangerous water levels or imminent flooding or when a 1% AEP may become a PMF event.

61. The documents do not identify specific roles and responsibilities or proposed training or on-going education to be undertaken by staff or induction for parents and other users of the centre.

62. Importantly, a single breach of the POM would create a situation where there is an unacceptable impact.

63. I also accept and agree with the evidence of Mr Clark, that, in the challenging event of an extreme flood there would be a difficulty in supervising the proposed large number of young children, especially with the potential loss of water and power to the site, along with managing the behaviour of parents wishing to collect their children from the centre during flood events.

Conclusion

64. It is acknowledged that the ground floor level of the proposed new development is proposed to be set at a higher level that the existing approved child care centre, and therefore the proposed new structures may provide enhanced safety in this regard. It is further acknowledged that the proposed mitigation measure of a palisade fence to the western boundary to prevent children from entering the creek is a positive measure.

65. However, due to the increased occupation of a sensitive site by vulnerable users, and with the safety of children a primary consideration, the Court needs to be satisfied that the proposed development would not create an increase in risk to life for vulnerable members of the community from the impacts of flood events, rare as these events may be.

66. On the basis of the evidence presented, I consider that the proposed increase in population, including additional children along with additional staff and parents dropping off and collecting children from the site, constitutes an intensification of use of the site and an increased in risk to life, especially in the event the site is cut off by floodwaters in the PMF event which is of unknown duration and likely to be increased in frequency and severity by climate change.

67. Therefore, I consider that the proposed development is not compatible with the flood hazard of the land and contrary to the provisions of cl 6.3 Flood Planning in PLEP 2011, and therefore is unsuitable for the site.

Orders

68. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No DA/961/2022 for the demolition of existing structures and construction of a single-storey ninety-two (92) place centre based childcare facility with twenty-three (23) basement car parking spaces at 21B-23 Barangaroo Road, Toongabbie NSW 2146, is refused.

3. The exhibits, other than Exhibit 1, are returned.

Niall Macken

Acting Commissioner of the Court

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Decision last updated: 03 December 2024