Taouk v Bankstown CC

[2005] NSWLEC 128

Land and Environment Court

of New South Wales

CITATION:

Taouk v Bankstown CC [2005] NSWLEC 128

PARTIES:

APPLICANT
Tony Taouk

RESPONDENT
Bankstown City Council

FILE NUMBER(S):

10800 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- demolition of existing dwelling and construction of a two storey detached dual occupancy
flooding
bulk and scale

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Bankstown Local Environmental Plan 2001

DATES OF HEARING:

28/02/2005

 
DATE OF JUDGMENT: 

03/03/2005

EX TEMPORE JUDGMENT DATE:

03/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Pickles, barrister

RESPONDENT
Mr A. Seton, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 March 2005

10800 of 2004 Tony Taouk v Bankstown City Council

1 This is an appeal against the refusal by Bankstown City Council (the council) of DA 1508/2003 for the demolition of an existing dwelling and the erection of a two-storey detached dual occupancy at No. 65 Gascoigne Road, Birrong (the site).

2 The site is known as Lot 95 in DP 26982. It is triangular in shape with a northern boundary of 28.225 m, a southern boundary of 36.705 m and a western boundary of 52.905 m, including the frontage to Gascoigne Road and a part frontage to McCrossin Avenue, giving a total area of 780 sq m.

The site immediately adjoins an open formed drainage channel that traverses the northern boundary and essentially shapes the allotment.

3 The site is relatively flat with a gentle cross-fall from the southern corner to the northern corner of about 400 mm. Several trees and shrubs exist along the western boundary and southern corner of the site, although the vegetation is not significant. A single-storey brick dwelling and detached garage currently exist on the site.

4 The surrounding development consists of a mix of single storey and dual occupancy developments with the adjoining property at 1 McCrossin Avenue being recently developed for an attached dual occupancy. The northern side of Gascoigne Road is undeveloped.

5 The site is within a Residential 2(a) zone within Bankstown Local Environmental Plan 2001 (the LEP). The proposed use is permissible with consent.

6 Clause 2 of the LEP provides objectives of the plan. Clause11 provides that consent may only be granted if regard has been had to the general objectives of the plan (cl 11(3)(a)) and the zone objectives (cl 11(3)(b)).

7 Clause 26 provides requirements for flood liable land. It requires consideration of any relevant development control plan and/or any relevant floodplain development manual.

8 Clause 45 provides general restrictions on development, including scale, bulk, design, height, siting and landscaping (cl 45(1)(a)) and stormwater drainage (cl 45(1)(b)).

9 Clause 46 provides for residential development standards. Relevantly these relate to minimum lot size and lot width. There was no dispute that the proposed development satisfies these requirements.

10 Development Control Plan 30 - Engineering Requirements for Development (DCP 30) applies to the proposal. Clause 3 provides general objectives and cl 11 provides requirements for stormwater drainage and relevantly cl 11.6 provides requirements for floodways.

11 Bankstown Flood Prone Land Development Control Plan No. 9A (DCP 9A) also applies.

12 Two versions of Residential Development Standards Development Control Plan No 31 (DCP 31) were provided to the Court. The earlier version was superseded by the latter version on 1 July 2004, although a council resolution of 22 June 2004 provided that new DCP 31 is to apply to only those development applications lodged on or after the new DCP comes into effect. This has the effect of making the earlier DCP the relevant document for the subject application.

13 The publication, Floodplain Management Manual: The Management of Flood Liable Land (the Manual) applies by way of cl 26 of the LEP.

14 The council filed a Statement of Issues containing ten individual issues and a number of sub-issues. The issues relating to the riparian zone (Issue 7), the adequacy of the driveway crossing and traffic (Issue 10), the proposed freeboard (Issue 3), privacy (Issue 8) and the existing drainage easement (Issue 4) were not pressed by the council or addressed through proposed conditions, conditions tendered by the applicant or further plans.

15 The remaining issues can be conveniently grouped into the following main areas.

(1) whether the proposed development is acceptable considering the impact of flooding, that is issues 1, 2 and 3 and

(2) whether the proposed development is acceptable given its bulk and scale necessitated by the need to raise the floor levels above the 100-year flood level.

16 The parties agreed to the appointment of Mr Drew Bewsher as the Court appointed expert on flooding matters. Additionally, evidence on the bulk and scale issue was provided by Mr Adam Richardson for the council and Mr Bruce Goldsmith for the applicant.

17 On the flooding issue, Mr Bewsher modelled the impact of flooding on the proposed development and found that the site is significantly flood prone by up to 1.4 m and velocities up to 0.5 m per second during a 100 year flood event. During the 100-year flood event, the site would be classified as a “high hazard” under the Manual. The depth and velocities within the site and within the adjacent road system would be well above the accepted safety standards for pedestrians and vehicles. In addition, the flooding conditions on the site would result in it being classified as “high flood risk”, based on the flood plain risk management approach adopted recently by Liverpool, Fairfield, Sutherland and Bankstown Councils.

18 In Mr Bewsher’s opinion and having regard to the management of flood risks, it would be unwise for the site to be developed in a manner that exposes more persons to the flood risks. He accepts that the proposal would likely reduce the risk to property by elevating floor levels and potentially provide a safe refuge for persons within the dwellings, at the 100 year flood event (and greater flooding events on the upper level).

19 However, in balancing these positive aspects against the significant flood hazard outside the dwellings and on the adjacent area and road systems, he concludes that increasing the intensity of development will increase the already unacceptable personal safety risks. For these reasons, Mr Bewsher maintains that the development is not acceptable.

20 The applicant did not provide any evidence to challenge Mr Bewsher’s evidence, however, his conclusions were not accepted by the applicant. Mr Pickles, the applicant’s advocate, submitted that the velocity of 0.5 m per second is only marginally above the 0.4 m per second required by cl 11.6.8 of DCP 30. Importantly, and on the evidence of Mr Bewsher, the proposal does not increase the flood velocities or flood levels in adjacent areas.

21 Mr Pickles submits that with the ground floor of the proposed development being constructed above the 100-year flood level and refuge available on the first floor for floods greater than the 100-year flood, the likely risk factor is reduced, even though there are more people located on the site.

22 Mr Pickles refers to two recent flood studies prepared by the Civic Approvals Group of the council for the subject site and the adjoining site that do not raise any adverse flooding issues and recommend that the sites are not unacceptable for redevelopment on flooding grounds.

23 Mr Pickle’s submission is correct in that Mr Bewsher’s evidence indicates that the proposed development would not impact on the upstream water surface levels. There is also no dispute that the floor levels of the dwellings are to be constructed above the 100-year flood level with the appropriate freeboard. There was also no dispute that the dwellings could be constructed to withstand the appropriate loadings. Consequently, the only significant issue related to the question of safety and potential risks to future occupants.

24 Clause 26 of the LEP requires the Court to consider the provisions of DCP 30, DCP 31 and the Manual. DCP 30 provides no specific requirements for assessing the risk for potential occupants but concentrates on the engineering aspects of floodways. Clause 4.12 of DCP 31 provides an objective that in part, seeks to reduce the risk to human life. The clause also contains a minimum design requirement that states:

“Developments that cannot provide satisfactory failsafe emergency pedestrian access in a one in 100 year flood are not permitted.”

25 The clause also contains a performance criteria that states:

“Development in flood prone areas should be managed to limit the potential risk to human life and damage to property.”

26 The Manual classifies a site as “high hazard flood fringe”. The interim development guidelines, in part, require that the applicant should be:

“Required to satisfactorily demonstrate to the consent authority that permanent, failsafe maintenance free measures are incorporated in the development to ensure the timely, orderly and safe evacuation of people from the area should a design flood or greater occur.”

27 While Mr Pickles submitted that the newer version of DCP 31 does not contain the same provisions as the older version of DCP 31 in relation to failsafe emergency pedestrian access, it is nonetheless required by the Manual.

28 In balancing the competing argument over the potential risks I am more inclined to agree with the conclusions of Mr Bewsher. While accepting that the new dwellings will provide reduced risks for persons within the dwellings, I am not convinced that these benefits outweigh the additional risks for placing additional people in an area with clearly unacceptable risks outside the dwellings. The site is largely surrounded by high velocity floodwaters along the drainage channel and Gascoigne Road. I note that the velocities of floodwater within the site exceed the requirements of DCP 30.

29 While the applicant relied on the two previous nearby flood studies to support their position, I have given little weight to these documents. The evidence clearly suggests that the floor levels of the recently constructed dual occupancy adjoining the subject site are inconsistent with the findings of Mr Bewsher in terms of the appropriate 100-year flood level. A reading of these studies also highlights an absence of any assessment beyond the compliance with the strict engineering elements of DCP 30. The studies correctly or incorrectly do not address access or evacuation in time of flood.

30 In my view, it would be unsound to place any weight on documents that do not address the significant issue in these proceedings or are inconsistent with the most recent flooding assessment. The risk created by potentially exposing additional people to the impact of flooding is unacceptable and consequently the appeal must fail.

31 For completeness, I will briefly deal with the other issue.

32 Mr Goldsmith and Mr Richardson disagreed on the impact of the bulk and scale of the dwellings created by the need to raise the floor levels by some 1.4 m to create the appropriate freeboard above the 100-year flood event. While the bulk and scale is undoubtedly increased, I am not satisfied that this could support the refusal of the applicant. Save for major flood mitigation works upstream, any redevelopment, including single dwellings in the area, will need to raise the floor levels above the 100-year event. The bulk and scale of the dwellings is simply a consequence of the flood prone nature of the site and the immediate area.

33 For the foregoing reasons, the Orders of the Court are:

1. The appeal is dismissed.
2. DA 1508/2003 for the demolition of an existing dwelling and the erection of a detached dual occupancy development at 65 Gascoigne Road Birrong is refused.
3. The exhibits are returned with exceptions of Exhibits 3, 7 and 8.

___________________________

G T Brown

Commissioner of the Court

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