Sketch Design Studio (t/as SketchArc) v Manly Council

[2015] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sketch Design Studio (t/as SketchArc) v Manly Council [2015] NSWLEC 1202
Hearing dates:	11 December 2014 and 10 March 2015
Decision date:	04 June 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.The appeal is upheld in part. 2.Development Consent No. 5/2014 for alterations and additions to an existing semi-detached dwelling, including a new first floor, at 4 Rolfe Street, Manly, is modified by the consolidated conditions of consent at Annexure A. 3.The exhibits, other than exhibits 1, 15, A, B and H, are returned.
Catchwords:	DEVELOPMENT CONSENT: appeal against three deferred commencement conditions imposed on the development consent granted by Council; on-site parking in the front setback; bulk and scale; flood hazard.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
Category:	Principal judgment
Parties:	Sketch Design Studio (t/as SketchArc) (Applicant) Manly Council (Respondent)
Representation:	Counsel: Mr P. Vergotis, Solicitor (Applicant) Mr R. O’Gorman-Hughes, Barrister (Respondent) Solicitors: TressCox Lawyers (Applicant) Manly Council (Respondent)
File Number(s):	10572 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the imposition of three deferred commencement conditions on Development Consent No. 5/2014 for alterations and additions to an existing semi-detached dwelling, including a new first floor, hardstand car space and front fence (the consent), at 4 Rolfe Street, Manly (the site) by Manly Council (the Council).

2. The appeal was subject to mandatory conciliation on 8 October, 2014, 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 14 October, 2014, pursuant to s 34(4) of the LEC Act. Minor amendments were made to the proposal following the termination of the conciliation conference and leave was granted by the Court on 27 October, 2014 for the applicant to rely on the amended proposal. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

3. The deferred commencement conditions of consent that the applicant seeks to have deleted or modified are:

Condition A1

The car parking space, driveway crossover and associated gate in the front fence are to be deleted. The car space is to be replaced with soft open space.

Reason: To maintain on street parking, minimise the number of driveway cross overs and increase soft open space compliance.

Condition A2

The floor area of the development is to be reduced by a minimum of 10.5m2 from the rear of the first floor level.

Reason: To reduce the FSR to be consistent with Clause 4.1.3.1 of the Manly DCP 2013 Amendment 2.

Condition A3

The minimum finished floor levels shall be at or above the 100 year ARI flood level (3.16m AHD) for the ground floor north of Bedroom 2 (including the proposed laundry, kitchen, dining and living area).

Reason: In order for the proposed development to be compatible with the flood hazard and reduce the risks and cost of flooding to the area, as well as ensuring compliance with the flood policy.

4. The applicant contends that Condition A1 should be deleted because the on-site parking will not be visible from the street as it will be concealed by the front fence; the proposed on-site parking will reduce the area of paving in the front setback and increase the area of landscaping; and there is no alternative location for on-site parking. The Council contends that the on-site parking space will result in the loss of an on-street parking space; that the on-site parking will dominate the front setback of the dwelling and will detract from the streetscape.

5. The applicant contends that Condition A2 should be modified as follows (exhibit E):

The floor area of the development is to be reduced by a minimum of 4.3m2 from the first floor attic.

Reason: To reduce the FSR to be consistent with clause 4.1.3.1 of the Manly DCP 2013 Amendment 2.

6. The Council no longer presses condition A2 and instead contends that the rear setback of the first floor addition should match the adjoining semi-detached dwelling, in order to reduce the bulk of the first floor addition when seen from the public domain and the rear courtyard of the adjoining dwellings. This would require the extent of the first floor addition to be reduced by a depth of approximately 1m.

7. The applicant contends that Condition A3 should be deleted and instead the amended proposal (‘the proposal’, exhibit B) granted consent, as it is unreasonable and unnecessary to have the floor level north of Bedroom 2 not less than RL 3.16, as it will be impossible to achieve a satisfactory architectural outcome given the proposal involves the reconfiguring of a semi-detached dwelling. The applicant contends that there are satisfactory means of addressing the proposal’s flood hazard as well as reducing the risk and cost of flooding at the property without having the northern portion of the ground floor higher than the current floor level. The alternative means would include the following:

• Use of flood compatible structural building components including floor and wall building materials in areas below the Flood Planning Level (FPL);

• Flood proofing of services below the FPL.

8. The applicant further contends (exhibit H) that the finished floor level (FFL) of RL3.16 for the ground floor of the proposal is derived from data used to formulate the 2013 Manly Lagoon Flood Study (Flood Study) and the data is inaccurate, for the following reasons:

• Having regard to the latest data available from the Bureau of Meteorology;

• The modelling undertaken as part of the flood study has generated a conservation estimate of both the 100 year flood level and the flood hazard likely to occur at the site.

9. The applicant contends that the proposal’s flood proofing measures fully satisfy the objective of Manly Council’s Interim Policy – Flood Prone Land 2013 (Interim Policy) (namely objective 1.2.4, ‘to reduce the risks and costs of flooding to existing areas’) which expressly relates to existing areas of development and re-development.

10. The Council contends that deletion of Condition A3 would result in the proposed development being contrary to cl 6.3 of the Manly Local Environment Plan 2013 (LEP 2013) and the interim policy which would result in development that does not incorporate appropriate measures to manage risk to life from flood, which would result in unsustainable social and economic costs to the community as a consequence of flooding.

11. It is Council’s submission that it is willing to accept the determined Flood Level of 3.16m ADH (RL3.16) for the site as a new ground floor level, without the 0.5m for freeboard, as the approved development is for an existing dwelling.

12. The Council submitted that the following condition is an alternative to the Condition A3 (exhibit 15):

The ground floor of the dwelling, with the exception of the dining/living room, is to be constructed to a level of 3.16 AHD.

13. However, in closing submissions, Mr O’Gorman-Hughes said that Council presses Condition A3 and that in addition, Council seeks that the entire ground floor of the cottage be at the FPL for the site of 3.16m ADH.

The site and its context

14. The site is on the northern side of Rolfe Street, near the corner of Balgowlah Road. The area of the site is 186.6m2.

15. The dwelling is on the eastern side of a pair of semi-detached dwellings. There are three pairs of attached dwellings at 2-3, 4-5 and 6-7 Rolfe Street, forming a row of single storey, semi-detached dwellings on the northern side of Rolfe Street, some with first storey additions predominately concealed behind the roof over the original ground floor, when viewed from the street. The portion of Rolfe Street which includes the site is flat.

16. The existing single storey, attached dwelling consists of an enclosed front verandah, entry hall with two bedrooms and a bathroom and a living room in the front portion of the dwelling at RL2.79, a kitchen at RL2.77 and ancillary rooms at the rear of the dwelling at RL 2.63. The ground level around the dwelling, both front and rear, is, on average, RL2.2.

Background and the proposal

17. The hearing was set down for 2 days, 11-12 December, 2014. Mr Don Still for the applicant and Ms Christina Femia for the Council prepared a joint report in regard to the flooding issue (exhibit 2). In the joint report, Mr Still criticised the adopted floor level of RL3.16m for the site as he considered it was too conservative, as follows (exhibit 2, p1):

Mr Still considers that not only is the currently adopted floor level of RL3.16 not the most accurate value possible but it also leads to the property being incorrectly identified as High Hazard. As detailed in his SOE [exhibit D], this concern is based on the approach taken in the 2013 Flood Study report with respect to coincidence of catchment flooding and ocean impacts and the lack of investigation of the catchment-specific ocean conditions. Also, he notes that the latest (2013) Bureau of Meteorology design rainfall data shows that the Manly area intensities are significantly lower than when previously assessed. Hence, their use in the future revision of the 2013 Manly Lagoon flood study would generate lower flood levels in the catchment.

18. As Mr Still’s evidence questioned the assumptions and findings of the Flood Study, Council contended that his evidence went beyond the contention raised in the applicant’s Statement of Facts and Contentions (exhibit C) and in order to respond to Mr Still’s evidence, the Council would need to engage the author of the Flood Study, Mr Darren Lyons, to also provide evidence. The hearing was adjourned until 10 March, 2015, on the basis of the parties’ agreement pursuant to s 97B of the EPA Act, for Mr Still and Mr Lyons to meet and prepare a joint report.

19. Leave was granted by the Court for the applicant to file an amended Statement of Facts and Contentions, which was filed 23 December 2014 (exhibit H). The Council filed an Amended Statement of Facts and Contentions in Reply on 4 February 2015 (exhibit 15).

20. The proposal retains the front two bedrooms and front hall and the party wall of the existing dwelling and includes the reconfiguration of the rear of the ground floor and a new first floor addition. The existing floor level of the front two bedrooms and bathroom is RL2.79, with a floor to ceiling height of 2.79m. The proposal raises the floor level of the front two bedrooms to RL3.0 and the rear living areas are at RL2.79. The proposal includes repositioning the front door inward, to provide a step up from the existing front verandah level to the raised finished floor level (FFL) of the front hall. The rear living areas include a bathroom, spiral stair, kitchen, dining and living area opening onto a rear deck.

21. The proposed first floor level is RL6.16. The first floor consists of a living/study area, a bathroom and two bedrooms. It is the applicant’s submission that the attic room beneath the existing roof at the southern end of the first floor can be reduced in size in response to Condition A2, instead of increasing the rear setback of the first floor to align with the adjoining dwelling at No. 5.

Planning framework

22. The EPA Act, at s 4, defines ‘development standard’ as follows:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(i) road patterns,

(j) drainage,

(k) the carrying out of earthworks,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

(o) such other matters as may be prescribed.

23. The site is zoned R2 Low Density Residential, pursuant to LEP 2013. The floor space ratio (FSR) for the site is 0.6:1 (Sheet FSR_003 LEP 2013) and the site is within an area identified as having a minimum lot size of 250m2 (Sheet LSZ_003 LEP 2013). The relevant objectives for the FSR development standard at cl 4.4(1) of LEP 2013 are:

(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,

(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,

(d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain

24. Clause 4.6 of LEP 2013 provides flexibility for the application of certain development standards to development. The applicant must provide a written request that seeks to justify any contravention by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard. The consent authority must be satisfied that the written request adequately addresses the matters required to be demonstrated and that the proposal is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

25. Clause 6.3 of LEP 2013, ‘Flood Planning’ is as follows:

(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) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(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 by the NSW Government in April 2005, 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.

26. The proposal is subject to the relevant provisions of the Manly Development Control Plan 2013 Amendment 3 (DCP 2013). DCP 2013 provides an exception to FSR for undersized lots at cl 4.1.3.1 for sites with an area less than the minimum lot size required on the LEP Lot Size Map. For the site, in area C (Figure 30 of DCP 2013), the extent of FSR variation is to calculate the FSR based on 250m2 of site area, which gives a maximum gross floor area of 150m2.

27. Clause 4.1.6.5 ‘Driveways and Crossings’ includes a note that consideration will be given to whether the works have any impact on kerbside parking supply in assessing driveways and crossings.

28. Clause 5.4.3 of DCP 2013 refers applicants to the Interim Policy and the Flood Study when preparing a development application in flood affected lands within the Manly Lagoon Catchment.

29. The Council’s Interim Policy includes the following relevant policy statements:

2.2 The Flood Planning Level is defined in Council’s Manly Lagoon Flood Study 2013, as the combination of a design flood level (1 in 100 year flood), and a freeboard (0.5 metres). A 1 in 100 year event has a 1% probability of occurring in each and every year. The Manly Lagoon Flood Study 2013 addresses both mainstream and overland flooding.

2.6 The flood levels for a 1% flood, relevant Flood Planning Level, and Flood Planning Level Area, are defined in The Manly Lagoon Flood Study 2013.

Council will make available upon request, information with regard to the possibility of flooding, indicated in The Manly Lagoon Flood Study 2013, whether or not specific controls are imposed on the subject application.

30. The Flood Study relevantly includes the following:

Council’s adopted FPL is based on the 1% Annual Exceedance Probability (AEP) flood level +0.5m freeboard. This is as per the guidelines from the NSW Government’s Floodplain Development Manual (2005). For the Manly Lagoon catchment, the design 1% AEP event conditions are based on the coincident occurrence of both catchment and ocean derived flooding. This scenario incorporates a 1% AEP catchment rainfall condition with a 5% AEP ocean water level condition (storm surge scenario).

31. The 2013 Manly Lagoon Flood Study (extract, exhibit 10) includes the following for the site:

Flood Level (mADH)	Depth (m)	Velocity (m/s)	Hazard (Low/ High)	Hydraulic Category
1% Catchment & 5% Ocean 100yr Catchment & 20 yr Ocean (applied by Council)	3.16	0.98	0.05	High	Flood Storage
5% Catchment & 1% Ocean 20yr Catchment & 100yr ocean	2.88	0.71	0.06	Low	-

Public submissions

32. At the commencement of the conciliation conference on site, a number of neighbouring residents gave evidence and the Court, in the company of the parties, viewed the site from their backyards. The residents objected to Council’s deferred commencement condition A3 requiring the floor level of the rear addition to be raised, on the basis that raising the rear addition and possibly the decking in the rear courtyard would unreasonably impact on their privacy, as the residents of 4 Rolfe Street would be higher in comparison to their neighbours and thereby overlook their neighbours’ rear courtyards.

Expert evidence

33. The Council relied on the expert planning evidence of Mr Glen Hugo and the expert evidence of Mr Darren Lyons, who is a Water Resources Engineer with qualifications in Civil Engineering and with over 20 years’ experience. The applicant relied on the expert planning evidence of Ms Natalie Nolan and the expert evidence of Mr Don Still, who is a Hydrologist and stormwater drainage expert, with qualifications in Engineering and Engineering Science and with over 37 years’ experience.

Condition A1

Evidence

34. The planning experts agreed on the following:

• On-street parking is in high demand in the locality;

• The proposal will result in the loss of one on-street parking space;

• The driveway crossing occupies less than 50% of the street frontage;

• It is not possible to leave the site in a forward direction as the nose of the vehicle is to be accommodated by removing part of the front elevation of the dwelling and the floor of the existing verandah;

• The transparency of the front fence could be increased to improve sightlines when reversing out of the on-site parking space;

• A similar proposal has been granted consent at 2 Rolfe Street, although it has not been constructed.

35. According to Ms Nolan, the proposal for on-street parking increases the soft landscaping in the front setback of the dwelling. In her view, the alteration to the existing dwelling removes the unsympathetic enclosure of the verandah and is in keeping with the original character of the dwelling and the group of semi-detached dwellings.

36. According to Mr Hugo, the proposal has a negative and unacceptable impact on the streetscape of this group of dwellings due to its location forward of the building line.

Findings

37. The existing front setback of the dwelling is insufficient to accommodate a vehicle. In order to accommodate a vehicle in the front setback, the front of the dwelling has to be modified. The proposal is to remove the floor of the verandah and the lower portion of the front façade of the dwelling, so that a car bonnet can extend under both the verandah roof and the front façade, which would be modified into a ‘window seat’ with space beneath to accommodate the car bonnet. The proposal retains the front verandah roof and a landing at the front door.

38. While I accept that the loss of one on-street parking space, in exchange for an on-site parking space, would be acceptable in the circumstances; the proposal in not sympathetically integrated into the design of the dwelling and the disfigurement of the front elevation of the dwelling, as described above, is not acceptable, as it unreasonably detracts from the appearance of the semi-detached dwelling and the integrity of the group of semi-detached dwellings.

39. For this reason, the applicant is directed to amend the documentation to delete the on-site parking space and to replace it with soft landscaping; an entry path and either retain the existing front fence or replace it with a new fence that is no higher than the existing fence. Condition A1 is to be deleted.

Condition A2

Evidence

40. The planning experts agreed that, based on a site area of 250m2 (Figure 30 of DCP 2013), the maximum cl 4.6 of LEP 2013 variation to the floor space ratio (FSR) development standard at 4.1.3.1 of DCP 2013 is equivalent to a gross floor area (GFA) of 150m2.

41. The planning experts disagreed on the GFA calculation for the proposal. According to Ms Nolan, the GFA is 154.3m2 which results in a FSR of 0.827:1 and according to Mr Hugo, the GFA is 156.181m2, which results in a FSR of 0.837:1.

42. In Mr Hugo’s view, the proposal exceeds the scale of the surrounding development and the additional visual bulk is visible from the public domain. The reduction in floor space should be achieved by aligning the rear setback of the first floor with the rear setback of the first floor of the adjoining attached dwelling.

43. In Ms Nolan’s view, the bulk and scale of the first floor addition is acceptable and the first floor complies with the rear setback control. Numerical compliance with the FSR control (including the exceptions to FSR for undersized lots at 4.1.3.1 of DCP 2013) could be achieved by reducing the floor area under the pitch of the existing front roof.

44. A summary of the applicant’s justifications for exceeding the FSR development standard for the site are as follows (exhibit A, p27 of the Statement of Environmental Effects by Nolan Planning Consultants, dated January 2014):

• The site has an small area and strict compliance with the FSR development Standard is unreasonable;

• The proposal is consistent with the bulk and scale of the existing surrounding development and is of a height, bulk and scale that is consistent with the adjoining semi-detached dwelling; and

• The majority of the additional floor area will not be visible from the public domain.

Findings

45. The applicant’s cl 4.6 request for an exemption to the FSR Development Standard of LEP 2013 provided in the development application made to Council (exhibit A) was held to be well founded by the Manly Independent Assessment Panel (MIAP), subject to the deferred commencement conditions of consent, when granting deferred commencement approval on 19 June 2014 (exhibit A, attachment 7).

46. In order for development consent to be granted for a development that contravenes a development standard in LEP 2013, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2013) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2013) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2013).

47. The relevant objective for the FSR development standard, at sub-cl 4.4(1)(a), (c) and (d) of LEP 2013, is to ensure that the bulk and scale of development is appropriate to the condition of the site and its context. The parties agreed that the remaining objectives are not relevant.

48. The evidence of the planning experts that the maximum exceedance of the FSR Development Standard for the site of 0.6:1 is dictated by cl 4.1.3.1 of DCP 2013, which gives a maximum gross floor area for the site of 150sqm, is incorrect. The provisions of cl 4.6 of LEP 2013 are the sole power to allow a variation of the development standards and DCP 2013 cannot be used to constrain the numerical value of the variation, if it is determined that the provisions of cl 4.6 are met.

49. I am satisfied that the bulk and scale of the proposal is consistent with the adjoining attached dwelling, notwithstanding that the proposal extends further to the rear boundary on the first floor when compared to the adjoining attached dwelling; and that the bulk and scale of the proposal is appropriate to the condition of the site and its context. For this reason, the written request seeking to justify the contravention of the FSR development standard of 0.6:1 adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b) and strict compliance with the FSR development standard is unnecessary in the circumstances.

50. Condition A2 can be deleted and no amendments to the first floor of the proposal (exhibit B, A-201 Rev A) are required.

Condition A3

Evidence

51. The flooding experts agreed on the following:

• The Flood Study design intensities are of the order of 20% lower than the 1987 design intensities and this means that the 100 year sensitivity testing (replacing the 1987 rainfall intensities with the 2013 rainfall intensities) generates a reduction of about 20% in the total flood volume entering the lagoon, which would correspond to a reduction of 0.2m in the FPL at the site;

• Research regarding other matters, such as rainfall losses, reduction factors, rainfall temporal patterns and base flow will appear in the next edition of Australian Rainfall & Runoff (AR&R) and have yet to be finalised, and the current status of AR&R research indicates that areal reduction factors would lead to a further small reduction in flood flow volumes;

• The other issues related to (i) potential lag between peak of catchment flooding and peak ocean conditions and (ii) coincidence of catchment flooding and ocean impacts could be examined in greater detail. If the results of detailed examination of these issues were to prove to be inconclusive, it is agreed that the current design scenario of 1% AEP catchment event and 5% ocean event (as suggested by DECC in its 2010 guide) is appropriate to define the FPL for the catchment;

• Additional analysis may provide greater certainty/clarity with regard to the wave set up component of design ocean conditions. Such analysis may help confirm definitions of the 1% ocean conditions;

• The body of research indicates that there is some coincidence for the NSW coastal catchment, so it is agreed, in a circumstance of no local data, that it is not appropriate to assume no coincidence.

52. It is Mr Lyons’ evidence that the volume of rainfall is not the main determinant of peak flood levels, rather it is the peak flows generated. The Flood Study model demonstrates the significance of temporal patterns in generating design flows and subsequent peak flood levels in the Manly Lagoon. Accordingly, it is not appropriate to lower design flood levels on the assumption that lower IFD rainfall will produce lower flood levels. According to Mr Lyons, the Flood Study is consistent with the Bureau of Meteorology’s (BoM) own guidance, contained in the BoM publication, ‘Intensity-Frequency-Duration, 2013 data release – Engineers Australia guidance’ (exhibit 9, tab 1), as follows:

You cannot assume that using the 2013 IFD design rainfalls with AR&R87 techniques and design parameters will deliver a more reliable estimate of the design flood.

In most cases it would be prudent to use the AR&R87 design parameters and conduct sensitivity testing with revised AR&R design parameters (including the 2013 IFD design rainfalls) as they become available. This will allow you to assess the impact of updated information on your decisions.

53. Mr Lyon’s also relied on the findings of an academic paper, ‘Development of Practical Guidance for Coincidence of Catchment Flooding and Oceanic Inundation’ by Angela Toniato, Duncan McLuckie and Grantley Smith (Toniato paper) (exhibit 9, tab 2), including the following relevant extracts:

Many of the factors that contribute to ocean water levels are independent of rainfall; however, elevated ocean levels and catchment driven flooding can originate from the same meteorological event affecting both ocean levels and catchment driven flooding can originate from the same meteorological event affecting both ocean levels at the estuary entrance and rainfall within the catchment. The degree of influence of flooding from these two sources varies significantly with the relative timing of the peaks of these events and the characteristics of the catchment, coastal waterway and floodplain.

Given the close association of both oceanic inundation and catchment flooding drivers with the same synoptic storm types, a precautionary approach is required to account for the potential joint occurrence of these drivers for flood levels in design flood analysis.

The analysed coastal lakes and lagoons generally show the highest level of coincidence between flooding and large ocean anomalies and the strongest coincidence between the timing of floods and ocean anomalies. Catchments of coastal lakes and lagoons are often predominately in the coastal area and therefore more likely to be influenced by the same type of synoptic event that influences ocean anomalies.

… pragmatic recommendations for the combination of ocean driven and catchment driven flooding mechanisms for design purposes. Key findings of this report are as follows:

● The search of recent and available local and international literature on the joint occurrence of ocean and catchment flood drivers revealed that, while there has been some progress made on statistical techniques for joint occurrence, the application of these techniques to suitable recent NSW data sets showed little basis for changing the combinations of catchment flood and ocean water level for design applications from previous advice.

54. According to Mr Lyons, he used the ‘General Approach’ in preparing the Flood Study. The Toniato paper endorses this approach or the Detailed Approach for strategic studies undertaken for local government. Mr Lyons said that the Detailed Approach could not be used for the Flood Study as there was insufficient data. It is Mr Lyons’ evidence that the Flood Study assumed 5% AEP oceanic inundation with 1% AEP catchment flood, as recommended in the Toniato paper in regard to the General and Detailed Approaches as follows:

Deriving the design or planning flood (flood being used as the basis of flood mitigation works or for deriving flood planning levels to managing development) in coastal waterways uses an approach involving the use of a series of catchment flood and oceanic inundation scenarios to produce an envelope of peak flood levels and velocities as these vary with location. Deriving the peak flood levels and velocities for a 1% AEP event, may involve the testing of the following scenarios:

● Design 5% AEP oceanic inundation with 1% AEP catchment flood with coincident peaks.

55. Mr Still considers that the approach taken in the Flood Study is potentially conservative with regard to (i) the lack of adoption of location specific ocean conditions and (ii) the lack of consideration of issues related to joint probability catchment flooding and elevated ocean conditions.

56. In regard to determining the likely interaction between catchment and coastal flooding, it is Mr Still’s evidence that the unique characteristics of the Manly Lagoon area ought to be assessed on its own merits and that this is supported by 2010 DECCW’s (exhibit 9, tab 3) conclusion that the most appropriate methodology for determining the interactions between the two events should be based on expert knowledge. In his opinion, the Flood Study’s assumption that models a 100 year catchment flood coinciding with a 20 year ocean event yields the highest flood level and Council has adopted the FPLs generated by this assumption. In his opinion, there are mitigating factors to the likelihood of such a coincidence, including that the Manly Lagoon is relatively small in size and quite steep and therefore it will rapidly respond to any substantial rainfall event, whereas the weather systems that generate elevated ocean levels are typically of much longer duration. In his view, the Flood Study should have addressed the probability of both weather systems being experienced at the same time rather than just adopt the 5% AEP oceanic inundation with 1% AEP catchment flood, as this may reveal an overestimation of the likelihood of a coincidence between catchment and coastal flooding, resulting in an adjustment downward of the flood planning levels.

Submissions

57. Mr Vergotis submits that cl 6.3 of LEP 2013 satisfies all the requirements of the definition of ‘development standard’ as set out in EPA Act and Mr O’Gorman-Hughes submits that cl 6.3 is not a development standard, on the basis that cl 6.3 does not specify a requirement or fix a standard in relation to an aspect of the development, rather it requires the development to be compatible with the flood hazard of the land (Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [97]).

Findings

58. Firstly, I accept and prefer the evidence of Mr Lyons in regard to the reliability of the Flood Study. I do not doubt that Mr Still’s opinions are well-founded and that with any such study there always exists scope for further and more detailed research and some room for differences in interpretation of data and professional judgement, however, I am persuaded by Mr Lyons’ evidence and the supporting material in exhibit 9 and I find that his approach to and the assumptions made in the preparation of the Flood Study are sound and reasonable and consistent with best practice.

59. Secondly, the provisions of cl 6.3 of LEP 2013 are not a development standard because they ask for subjective satisfaction that development consent not be granted unless the consent authority is satisfied that the provisions of sub-cl 6.3(3) are met.

60. I accept that the FPL as determined by the Flood Study for the site must be given significant weight (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [92]) and I must be satisfied that the provisions of sub-cl 6.3(3) of LEP 2013 are met by the proposal.

61. In an ideal world, on a greenfield site, or even on a larger or vacant site, there would be no dilemma in strictly complying with the FPL + freeboard level when constructing a new dwelling or adding to an existing dwelling. The difficulty arises in this matter in trying to retrospectively overlay a seemingly inflexible numerical requirement expressed as a reduced level onto an existing, early 20th century attached cottage, on a relatively tiny site and which is one in a row of similarly modest dwellings at much the same level, constructed prior to the determination of the FPL and, as it turns out, with an existing ground floor level 370mm below the FPL.

62. In order to raise the ground floor level to the FPL for the site (or at least the entry hallway and the front two bedrooms and the kitchen), the cottage must be significantly modified, because the front verandah is a conventional step below the front door and this level cannot be raised without removing the roof over the verandah, to allow sufficient head room under the beam that supports the rafters of the verandah roof. Removing part of the verandah roof requires the shared decorative gable at the front of the pair of attached dwellings to be asymmetrically truncated on the 4 Rolfe Street side. The front door must also be relocated further inside the entry hallway in order to retain some of the verandah roof. This requires stepping up from the existing front verandah level to reach the new FFL of RL3.16 at the threshold of the front door. The existing single skin brick internal wall would need to be modified to perform as an external wall. The existing ceiling at RL5.76 would provide a 2.6m floor to ceiling height above the new FFL. All existing floors and skirtings would need to be removed and the floor structure augmented to the new level. Stairs would need to be inserted between the kitchen bench and the party wall to transition from RL3.16 to RL2.79 if the living areas and the external deck are to be at the existing level of the dwelling.

63. The modifications required to raise the FFL of the front rooms of the dwelling would destroy the integrity of the cottage and its contribution to the group of attached cottages at this end of Rolfe Street and the modifications represent a significant cost imposition on the applicant.

64. The parties are joined on whether the kitchen should be at RL3.16 or RL2.79. It is the Council’s view that because the kitchen contains white goods that, in the event of a flood are vulnerable to damage, the FFL of the kitchen should be at the FPL level. The proposal has the FFL at RL2.79. The only white goods that are likely to be below RL3.16, if the FFL level of the kitchen is at RL2.79, are the refrigerator and dishwasher. A wall oven, cooktop, microwave, coffee maker and so on would all be above the estimated flood level of RL3.16. The kitchen joinery would need to be replaced in the event of a flood at the estimated FPL, whether the floor level of the kitchen is at RL3.16 or RL2.79. Comparing the potential cost of replacing the refrigerator and dishwasher with the certain cost of substantially reconstructing the front elevation, front rooms and moving the front door, the cost of replacing the affected white goods following a flood is a more economical option. For this reason, I do not accept the Council’s argument that the kitchen should be raised to the FPL level.

65. An alternative approach, which is that contained in the deferred commencement condition A3, is to insist on the new work being at the FPL. The problem with inserting such a requirement as a condition is it ignores the consequent impacts of raising the FFL, as the approved development includes bi-fold doors to the northern and eastern elevations of the living room at the rear of the site, yet the condition does not address whether the external decking off the living room is at RL3.16 or RL2.79. It is the Council’s submission that the decking remains at RL2.79. If that is the case, then the approved dwelling either has a 370mm step at the threshold of the bi-fold doors or some amendment has to be made to the approval to deal with the transition between the living room and the outdoor decking. The raised level of the living room would allow the residents of 4 Rolfe Street to overlook the small and intimate rear courtyards of their neighbours and despite the obvious privacy impacts of resulting from the imposition of Condition A3, the neighbours had no opportunity to consider the implications of the amendment prior to the imposition of the condition raising the floor level.

58. I accept that this alternative proposal of raising the rear portion of the semi-detached dwelling is possible; however it does compromise the architectural outcome for this dwelling. It effectively creates a raised platform in the centre of a small house. It requires stairs up to the kitchen in the hall next to bedroom 2 and stairs from the living room into the courtyard. The courtyard is only small, at approximately 4.5 x 6m and stairs, whatever the configuration, would take up a significant portion of it. There is also the issue of getting from the raised level in the laundry down to the ground level outside the door. When stairs are necessary, any inconvenience is acceptable, but they do occupy space and limit the mobility of anyone less than able bodied. The level change between the living room and the small courtyard may make it more difficult to ensure the safety of small children. This alternative option reduces the floor to ceiling height in the living areas to 2.6m, which is acceptable, if not desirable and it results in privacy impacts for adjoining residents.

59. The Council, in closing, submitted that the entire ground floor of the dwelling, both the existing front rooms and the proposed kitchen and living areas, are to be at RL3.16. This would combine the issues described in the above paragraphs.

60. The Council’s grim persistence in insisting that the only way to satisfy sub-cl 6.3(3) of LEP 2013 is to construct the ground floor addition at the FPL determined for the site by the Flood Study is a blinkered approach that completely disregards all other constraints. It is simply not sustainable or practical to blindly insist on mutilating a modest attached cottage for the sake of meeting an inflexible numerical requirement, which is inevitably somewhat arbitrary because it is a prediction. There has to be a more balanced way of minimising the risk of flood inundation when dealing with older, built up areas, particularly on small sites, where the options for alterations and additions are much more constrained. Just as with other contemporary engineering requirements imposed on older buildings, there has to be some creativity applied in order to achieve a ‘deemed to comply’ outcome that provides the means of achieving compliance with performance requirements in a more flexible way than strictly meeting some numerical requirement; or alternatively, deals with the risk using an area-wide approach, such as an appropriately located embankment.

61. To suggest that the only way an owner can renovate their existing dwelling is to construct an addition at the FPL regardless of the existing level of the dwelling, is potentially, depending on the circumstances and constraints of the site, a considerable disincentive to carry out any works at all and inevitably adds a significant cost to any works proposed. It may even impose an over-riding constraint, as it does in this matter, making it impossible to achieve a satisfactory outcome. It is also important to note that while the proposed kitchen, living and dining area are ‘an addition’ and so caught by cl 6.3 of LEP 2013 as development consent is required, the applicant is actually replacing the existing footprint of the cottage at the ground level, which is currently at RL2.79. Any new work has to be successfully knitted into the three dimensional existing fabric of the dwelling and its context.

62. On balance, weighing up the constraints of the fabric of the existing cottage, the size of the property, the existing ground level of adjoining dwellings and the risk to the property of flood inundation, I find that the imposition of condition A3 is unreasonable in the circumstances. I am satisfied that the existing FLL of RL 2.79 is acceptable, if coupled with the flood protection measures proposed by the applicant and taking into consideration the addition of a first floor level which will provide four new rooms well above the FPL + freeboard. On that basis, I am satisfied that the development is compatible with the flood hazard of the land; is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; incorporates appropriate measures to manage risk to life from flood; is not likely to significantly adversely affect the environment; and is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

Conclusion

71. In relation to the deletion of Condition A1, while I accept that the loss of one on-street parking space, in exchange for an on-site parking space, would be acceptable in the circumstances; the proposal is not sympathetically integrated into the design of the dwelling, as removing the (currently enclosed) verandah floor and modifying the front façade of the dwelling so that a car bonnet can extend under a window seat is not acceptable, because it unreasonably detracts from the appearance of the semi-detached dwelling and the integrity of the group of semi-detached dwellings. For this reason, the architectural plans are to be amended to remove the parking space in the front setback and Condition A1 is to be deleted from the conditions of consent.

72. In relation to the deletion of Condition A2, the maximum exceedance of the FSR development standard for the site of 0.6:1 cannot be dictated by 4.1.3.1 of DCP 2013, as the provisions of cl 4.6 of LEP 2013 are the sole power to allow a variation of the development standards and DCP 2013 cannot constrain the numerical value of the variation, if it is determined that the provisions of cl 4.6 are met. I am satisfied that the bulk and scale of the proposal is consistent with the adjoining attached dwelling and condition of the site and its context, notwithstanding that the proposal extends approximately 1m further to the rear boundary on the first floor when compared to the adjoining attached dwelling. Condition A2 is to be deleted from the conditions of consent and no amendments to the first floor plan (exhibit B, A-201 Rev A) are required.

73. In relation to the deletion of Condition A3, I accept the Flood Study is consistent with best practice and that the FPL for the site is RL3.16. Nevertheless, strict compliance with this numerical requirement of the FPL is, in this instance, unreasonable, as it would be impossible to achieve a satisfactory architectural outcome given the proposal involves the reconfiguring of a small, semi-detached dwelling on a small site. I accept that an adequate means of addressing the proposal’s flood hazard as well as reducing the risk and cost of flooding at the property includes the use of flood compatible structural building components including floor and wall building materials in areas below the FPL and the flood proofing of services below the FPL. The architectural plans are to be amended to show the ground floor level at RL2.79 and the conditions of consent are to include a new condition requiring the use of flood compatible structural building components, including floor and wall building materials and the flood proofing of services in areas below the FPL, to the satisfaction of Mr Lyons or Ms Femia. Condition A3 is to be deleted from the conditions of consent.

Directions

74. Directions were handed down on 29 April, 2015, as follows:

• The parking space in the front setback is to be deleted;

• The verandah is to be reinstated to match the detailing of the adjoining verandah at 5 Rolfe Street;

• The front yard is to be shown as soft landscaping with an access pathway;

• The proposed detailing of the front fence is to be shown, either retaining the existing fence or providing a new fence no higher than the existing fence;

• The entire ground floor level is to be at RL2.79 and the drawings are to indicate the use of flood compatible structural building components including floor and wall building materials and the ‘flood proofing’ of services in areas below the FPL;

• The architectural drawings are to be to a scale of 1:100 and are to comply with Schedule A of the Court’s Practice Note Class 1 Development Appeals.

75. The applicant filed the amended plans, in accordance with the above directions, on 20 May 2015.

76. The respondent filed the consolidated conditions of consent on 1 June 2015, which delete the deferred commencement conditions A1, A2 and A3; update the revision numbers of plans; and include the following conditions regarding the use of flood compatible structural building components including floor and wall building materials and the flood proofing of services in areas below the FPL (Annexure A):

ANS07

All electrical equipment, wiring, and fuel lines shall be watertight below the Flood Planning Level (FPL) of RL3.66 AHD (inclusive of freeboard) and shall be certified upon completion by a Licensed Electrical Contractor. Copy of the certification is to be provided prior to the issue of any Occupation Certificate.

Reason: In order for the proposed development to be compatible with the flood hazard and reduce the risks and cost of flooding to the area.

ANS09

Sewerage system to be constructed below the Flood Planning Level (FPL) of RL3.66 AHD (inclusive of freeboard) shall be watertight to prevent surcharge of sewage during times of flooding up to the Flood Planning Level and shall be certified upon completion by a Licensed Plumber and Drainer. Certification is to be provided prior to the issue of any Occupation Certificate.

Reason: In order for the proposed development to be compatible with the flood hazard and reduce the risks and cost of flooding to the area.

ANS10

The applicant is to provide advice from a suitably qualified engineering consultant showing that the existing and proposed structure is capable of withstanding the effect of inundation up to the Flood Planning Level (FPL) of RL3.66 AHD (inclusive of freeboard). This shall be in accordance with the requirements specified in the NSW Floodplain Development Manual. Buoyancy, flowing water with debris, wave action, the flood compatibility of materials, and waterproofing shall be addressed in accordance with the Manual. The class of construction, methods and materials are to be approved by Council or an accredited certifier prior to the issue of an Occupation Certificate.

Reason: In order for the proposed development to be compatible with the flood hazard and reduce the risks and cost of flooding to the area.

ANS12

The requirements of flood condition(s) shall be supervised during the works by a registered surveyor who shall certify compliance to Council’s flood condition(s) prior to the issue of a Occupation Certificate.

Reason: To ensure the proposed development is to be compatible with the flood hazard and reduce the risks and cost of flooding to the area.

77. On the basis of the amendments made to the proposal and the consolidated conditions of consent, I make the following orders:

Orders

78. The orders of the Court are:

1. The appeal is upheld in part.

2. Development Consent No. 5/2014 for alterations and additions to an existing semi-detached dwelling, including a new first floor, at 4 Rolfe Street, Manly, is modified by the consolidated conditions of consent at Annexure A.

3. The exhibits, other than exhibits 1, 15, A, B and H, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 05 June 2015