Radray Constructions Pty Ltd v Hornsby Council - [2010] NSWLEC 1174

Land and Environment Court

of New South Wales

CITATION: Radray Constructions Pty Ltd v Hornsby Council [2010] NSWLEC 1174

PARTIES:
APPLICANT
Radray Constructions Pty Ltd
RESPONDENT
Hornsby Council

FILE NUMBER(S): 10339 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Seniors living
Flood prone land

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Water Management Act 2000
State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004
Hornsby Shire Local Environmental Plan 1994
Hornsby Shire Low Density Multi-Unit Housing Development Control Plan
Hornsby Shire Council Sustainable Water Development Control Plan

CASES CITED: Radray Constructions Pty Ltd v Hornsby Shire Council [2007] NSWLEC 34
Segal & Anor v Waverley Council (2005) 64 NSWLR 177
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237
Neate v Shellharbour City Council (No 2) [2007] NSWLEC 654
Chisholm v Pittwater Council and Anor [2000] NSWLEC 143

DATES OF HEARING: 23, 24, 25, 26 March, 30 April 2010; conditions 12 May 2010

DATE OF JUDGMENT:
2 August 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr I Hemmings, barrister
Instructed by Mr J Hones
Hones La Hood
RESPONDENT
Mr P Jackson, solicitor
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

2 August 2010

10339 of 2009 Radray Constructions Pty Ltd v Hornsby Council
JUDGMENT

1 Commissioner: This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Council (the Council) of consent to a development application (No 942/2008) made by Radray Constructions Pty Ltd (the applicant) seeking approval for the demolition of two existing dwellings and construction of a Seniors Living development of 17 self care dwellings and associated basement car parking and landscaping at 15 Eyles Avenue Epping and 15 Anthony Street Carlingford (the site).

The site and locality

2 The site is two adjoining properties, lot 12 in DP 28247 (No 15 Eyles Ave Epping) and lot 3 in DP 201713 (No 15 Anthony Street Carlingford). No 15 Eyles Avenue is a battleaxe lot with the handle on the western side of Eyles Avenue. The battleaxe lot adjoins the rear of No 15 Anthony Street which is an irregular shaped lot fronting the northern side of Anthony Street. Access to the site is from Anthony Street, and via a right of carriageway over the handle with adjoining properties at 17-19 Eyles Avenue and a partly elevated concrete driveway.

3 The site has a total area of 3,787 sq m. A watercourse which forms a tributary of Devlins Creek and the Lane Cove River flows south to north through the central part of the site. The watercourse enters the site from Anthony Street via a culvert, under 17 Anthony Street and a drainage reserve. The watercourse is permanent and forms part of the local stormwater drainage system. The watercourse is an open system through the site. At the northern boundary the watercourse flows via a piped system for 700m then as an open watercourse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1174
Decision Date: 2 August 2010

CaseChat Overview and Summary

This appeal concerns the refusal by Hornsby Council (the Council) of a development application (No 942/2008) by Radray Constructions Pty Ltd (the applicant) seeking approval for the demolition of two existing dwellings and construction of a Seniors Living development of 17 self care dwellings and associated basement car parking and landscaping at 15 Eyles Avenue Epping and 15 Anthony Street Carlingford (the site). The site has a total area of 3,787 sq m and a watercourse which forms a tributary of Devlins Creek and the Lane Cove River flows south to north through the central part of the site. The site is subject to flooding. The proposed development has been amended during the course of these proceedings and now comprises 16 self care dwellings in a two storey building at the Anthony Street frontage and 3 x 2 bedroom dwellings in a single storey building at the rear. The basement car park is proposed to be accessed from Anthony Street. The proposed dwellings are elevated on piers above the floodway and basement car park and interconnected by elevated timber walkways. During flooding, floodwaters cover Anthony Street and the road is impassable. The proposed development has been designed to allow flood waters to pass beneath units 1 and 2 on the Anthony Street frontage, and for access to and evacuation from the site during flooding to be along the pedestrian walkway to Eyles Avenue. The proposal includes the realignment of the watercourse, and excavation for the proposed basement carpark, and the removal of certain trees. The applicant had previously submitted a development application for the site which was refused by the Council. That decision was appealed and dismissed by Roseth SC: Radray Constructions Pty Ltd v Hornsby Shire Council [2007] NSWLEC 34. The Council’s Amended Statement of Facts and Contentions filed on 8 March 2010 raised 11 contentions. During the course of the hearing, five of those contentions were resolved. The issues that remain in dispute are whether the site is unsuitable for a seniors living development because it is subject to flooding; whether the physical constraints of the site are acceptable; whether there are adverse impacts on the watercourse; whether there are adverse impacts on the social environment; the public interest; and tree protection. The Court found that the proposed development is permissible under the LEP and the SEPP(SL). It was common ground that the watercourse on the site is not identified as a “blue line” watercourse on the 1:25000 topographic map. The Council submits, based on the Flora and Fauna Assessment Report of Dr Ambrose, that the site displays either aquatic or semi aquatic habitat and that accordingly the Performance Criteria for Watercourses in the Sustainable Water DCP apply. I accept the applicant’s submission, which is supported by the ecological evidence, that while there are some uncertainties as to the precise construction of the watercourse, the proposed works and provision of a riparian zone are likely to improve the ecological functioning of the creek and riparian zone, which is consistent with the requirements of the Sustainable Water DCP. The Council’s first contention is that the site is unsuitable for the proposed development because it is subject to flooding. It was not in dispute that approximately 60 per cent of the site is flood prone land and that part is high hazard. It was common ground between the experts that Anthony Street is overtopped somewhere between the 1 in 5 year event and 1 in 20 year events; that vehicle access to the site from Anthony Street would be prevented during a 1 in 100 year event for a period in the order of half to 1 hours; and that vehicle and pedestrian access from Anthony Street to the proposal is not possible in the 1 in 100 year event. The applicant submits that in dealing with the physical impacts of flooding, the development is proposed to be both above and beside the floodwaters, that it will not impede the passage of those floodwaters, and that it has been designed to accommodate those floodwaters and any impacts from floodwaters. The applicant submits that the proposal has been designed so that all pathways and floor levels would be above a probable maximum flood (PMF). The applicant submits that when considering together the original flood study prepared by Dr Martens, the oral evidence of both experts and their two joint reports, there is sufficient information before the Court to ensure that potential impacts from flooding have been considered. I accept the evidence of the hydrologists that in a 1 in 5 to 1 in 20 year flood event, water would flow beneath proposed units 1 and 2 of the development; that in a 1 in 100 year event the depth and velocity of water would make it unsafe for pedestrians to access Anthony Street, and that vehicle access would not be possible from Anthony Street. The proposed development is designed on the basis that flood waters will flow underneath the building under units 1 and 2. I accept the hydrologists’ evidence that while the precise levels are not known at this stage, the walkway could be designed at an appropriate height above the relevant flood level, structurally stable, and with a gradient so as to be accessible. The central difference of opinion between the experts related to social impacts. Mr Bewsher’s evidence was that he would expect some occupants of units 1 and 2 and their second storey counterparts “to become terrified during moderate flooding (eg 20 year flood event)”, and that there remains an issue “related to amenity and particularly anxiety of the occupants of these units”. Dr Martens disagreed. In the first joint report Dr Martens stated that any reduced amenity below the buildings in relation to units 1 and 2 would not be unacceptable. In terms of resident anxiety, major flooding is highly infrequent and occurs generally only for a short duration. There is a possibility that some new resident may initially experience elevated anxiety should they observe flood waters passing under their dwelling; however flood awareness initiatives could be put in place including signage, flood information contained within the contract sale package, and which would be detailed in an emergency management plan; and once a resident had experienced and observed a flood event anxiety levels would be lower on the next event. Mr Bewsher’s position paper included the following statement: 21 In normal circumstances, medium density development of a significantly floodprone site, such as the one before the Court, would be considered unsuitable, or at best, heavily constrained by flooding. What makes the proposed development even more heavily constrained is that the subject site is proposed for seniors or those with a disability. Mr Bewsher conceded in oral evidence that this passage was the same as that quoted by Roseth SC from his report as a single expert in Radray Constructions Pty Ltd v Hornsby Shire Council [2007] NSWLEC 34. Mr Bewsher stated that in contrast to the position in the previous proceedings, there is more information available in these proceedings including the high hazard map, and the extent of the high hazard area beyond the creek is now quantified. Mr Bewsher’s experience includes the preparation of floodplain risk management studies and plans for approximately 30 councils, and flood risk assessment and modelling of flood behaviour, for over 20 years.

Orders