Ward v Port Stephens Council

[2023] NSWLEC 1423

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ward v Port Stephens Council [2023] NSWLEC 1423

Hearing dates:

16-17 February 2022; 11 March 2022; 13 April 2022

Date of orders:

04 August 2023

Decision date:

04 August 2023

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders:

(1) Within 14 days of the date of these orders, the parties are to confer and if possible agree on the conditions of development consent which are to reflect this judgment, and file the agreed conditions.

(2) If the parties are not able to agree on the conditions of consent, within 14 days of the date of these orders, each party is to file with the Court and serve on the other party the party’s version of the conditions of consent, and provide to the Court a Word copy of each party’s version of the conditions of consent.

Catchwords:

DEVELOPMENT APPLICATION – Council delays assessment of development application – refusal – s34AA conciliation conference – no agreement –proposed construction of single storey 4 bedroom dwelling – proposed development is permissible with consent and subject to conditions under RU1 zoning – land is flood prone – agricultural use of land – flood mounds – Flood Certificate applicable when development application made was not current – second Flood Certificate issued shortly before hearing –change to characterisation of land to High Hazard Floodway from High Hazard Flood Storage – amendment to application to include flood refuge in attic of proposed dwelling above Probable Maximum Flood (PMF) level – Port Stephens Local Environmental Plan 2013 cl 7.3 repealed without savings provision – cl 5.21 does not apply to application – Port Stephens Development Control Plan (PSDCP) provisions apply – PSDCP to be applied with flexibility – performance based conditions can be applied – risk management – risk minimisation – access road has low point which becomes unpassable by vehicles when flood depth exceeds about 2.5m AHD – consequences for evacuation – Flood Emergency Response Plan (FERP) – occupants of proposed dwelling will be required to follow FERP – FERP requires that occupants evacuate when flood warning issued – is sufficient warning given – role of State Emergency Service (SES) – Evacuation Orders could be made – flash flooding – flooding from Hunter River – flood events immediately following hearing – conditions

Legislation Cited:

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15

Land and Environment Court Act 1979, s 34AA

Local Government Act 1993, s 68

Port Stephens Local Environmental Plan 2013, cll 2.1, 4.2B, 4.3, 5.10, 7.1, 7.2, 7.3, 7.6; Pt 7

Roads Act 1993, s 138

Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

State Emergency Service Act 1989, ss 22, 22A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Coastal Management) 2018 (repealed)

State Environmental Planning Policy (Koala Habitat Protection) 2019 (repealed)

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4

State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1

State Environmental Planning Policy No 55—Remediation of Land (repealed)

Cases Cited:

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Gardiner v Central Coast Council [2022] NSWLEC 1007

OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, Floodplain Development Manual: the management of flood liable land (2005)

Planning for Bush Fire Protection 2019

Port Stephens Community Participation Plan

Port Stephens Development Control Plan 2014

Category:

Principal judgment

Parties:

Neil Andrew Ward (First Applicant)
Bronwyn Patricia Ward (Second Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
H Irish (Respondent)

Solicitors:
Peter Evans & Associates Solicitors (Applicants)
Local Government Legal (Respondent)

File Number(s):

2021/285440

Publication restriction:

Nil

Judgment

The proposal

1. Port Stephens is a major feature of the NSW coast and a major tourism destination. The Port Stephens Local Government Area is much larger than the port itself and extends west of the Pacific Highway into the Lower Hunter Valley. This matter concerns a proposed development in the Lower Hunter at a site adjacent to the Hunter River. The development application (DA) was lodged with Port Stephens Council (the Council) on 8 March 2019.

2. The site has the address of 1 Swanreach Road, Hinton, NSW 2321, and is legally defined as Lot 51 in DP 1250604, and mainly comprises undeveloped agricultural land, for which the zoning is RU1 Primary Production. The Applicants applied to the Council for development consent to construct a dwelling on an existing earth mound. The dwelling would be constructed on a concrete pad on top of an existing flood mound, at a level above the site flood planning level.

3. Swanreach Road crosses the eastern section of the site dividing it into two separate sections. Swanreach Road intersects Hinton Road to the north. Some way to the west of the intersection Hinton Road runs along the northern boundary of the site, but there is no formal entrance to the site from Hinton Road.

Figure 1 Aerial image of site. (Source: Ex 2 Tab 2 folio 9 – ‘Port Stephens Council Development Assessment Report’).

4. The larger western section of the lot has an area of 8.771 hectares and is used for agricultural purposes; the smaller eastern section has an area of 0.726 hectares and includes a large rural shed, an earth mound, and sealed access routes for vehicles. A small creek runs along the eastern boundary of this eastern section, being the feature running from the northwest to the southeast, between the subject site and the area labelled DP 7087, in Figure 1 above. The site is less than 100m from the Hunter River.

5. The lot slopes slightly to the southeast, directing surface water to the small creek and to the Hunter River.

6. Vehicular access and an electricity supply are available to the lot, but provision of water, wastewater and stormwater services would be required before habitable development could occur.

7. Photographs of the site at around the time the DA was made are included in the Development Assessment Report.

Figure 2 View of the eastern section of the property, showing the existing agricultural shed (Source: Figure 3 in Ex 2 Tab 2 folio 10).

Figure 3 View of the western section of the property. The road in the foreground is Swanreach Road (Source: Figure 4 in Ex 2 Tab 2 folio 10).

Figure 4 The small creek bordering the eastern section of the site. (Source: Figure 5 in Ex 2 Tab 2 folio 11).

8. The application was referred to the Council’s internal development engineer and their comments are produced in folios 12-17 of Ex 2, Tab 2.

"Refusal for a dwelling is recommended from a floodplain risk management perspective because:

i) The proposal is incompatible with the land’s flood hazard (being a high hazard floodway and surrounded by high hazard floodway), would create a flood island during events smaller than the defined flood event (future 1% AEP), does not incorporate appropriate measures to manage risk to life from flood and would increase the flood risk to life in the floodplain (refer to Section 4.15(1)(a)(i) of the EP&A Act 1979 and Clause 7.3 Flood Planning of the Port Stephens LEP 2013).

ii) The site is not suitable for this development because of the nature of the flooding in this area and the flood hazard across the site (refer to Section 4.15(1)(c) of the EP&A Act 1979 and Clause 7.3 Flood Planning of the Port Stephens LEP 2013).

iii) The proposal will result in flood isolation during flood risks smaller than the defined flood event (future 1% AEP), would place additional people at risk during floods (in contravention of the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005), would place extra burden on the State Emergency Services and is not in the public interest (refer to Section 4.15(1)(e) of the EP&A Act 1979 and Clause 7.3 Flood Planning of the Port Stephens LEP 2013).”

9. The development engineer’s report resulted in the Council refusing the application. It is against that refusal that the Applicants have appealed. It is therefore appropriate to consider the development engineer’s report to understand why the Council issued its refusal.

10. The assessment considered the applicable planning requirements and found that the application was compliant, with appropriate conditions applied, with many of the requirements.

Applicable requirements

Section 4.14 of the Environmental Planning and Assessment Act 1979 (EPA Act) - consultation and development consent - certain bush fire prone land

11. The proposed development is within mapped bush fire prone land and conformed to the specifications of Planning for Bush Fire Protection 2019.

12. The development engineer considered that an appropriate Bushfire Attack Level (BAL) and the provision of an asset protection zone would be required.

13. Consent authorities when they evaluate development applications are required to apply s 4.15 of the EPA Act and address the matters for consideration specified in s 4.15(1)(a):

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates…

14. In this case, the matters in s 4.15(1)(a)(i) and(iii) are of particular relevance.

15. The development engineer in their assessment considered:

1. State Environmental Planning Policy (Coastal Management) 2018: This is now incorporated into Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

1. The assessment concluded that the proposed development was compliant with the Resilience and Hazards SEPP and was unlikely to cause negative impacts. Issues relating to waste management, sediment control and surface runoff could be addressed by conditions of consent. The officers considered that an approval under s 68 of the Local Government Act 1993 would be required to ensure sewage would be appropriately managed.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

1. A valid BASIX certificate was supplied with the application.

3. State Environmental Planning Policy No 55—Remediation of Land: This is now included as Ch 4 of the Resilience and Hazards SEPP.

1. The development engineer considered that the application was compliant and that there were no previous records of contamination.

4. State Environmental Planning Policy (Koala Habitat Protection) 2019: This is now Ch 3 in State Environmental Planning Policy (Biodiversity & Conservation) 2021.

1. The site is mainly cleared and the application does not include the removal of natural vegetation and is not expected to impact on koala habitat.

5. The applicable Local Environmental Plan at the time the application was submitted was Port Stephens Local Environmental Plan 2013 (PSLEP), of which a number of clauses apply to the proposed development.

1. The site is on land zoned RU1 Primary Production. The proposed development is for a dwelling and is permissible with consent in the RU1 zone (PSLEP cl 2.1).

2. Clause 4.2B(3)(b) provides that the lot receives a dwelling entitlement as the lot was created prior to the commencement of PSLEP and has an area greater than 4000m².

3. There is no maximum building height specified in cl 4.3 for land in the RU1 zone. The development engineer was satisfied, given the height of existing buildings in the wider area, that the objectives of cl 4.3 were met.

4. No heritage items, archaeological site, aboriginal objects or places or conservation areas have been identified on the subject site so cl 5.10 is satisfied.

5. Clause 7.1 is in Pt 7 of PSLEP (the Special Local Provisions) and relates to Acid Sulfate Soils (ASS).

1. The site is mapped as containing potential Class 3 Acid Sulfate Soils. The DA does not identify any earthworks extending below 1m depth, so it is expected that even if ASS were present they would not be disturbed, so no ASS management report is required.

6. Clause 7.2 deals with earthworks. Earthworks are part of the application but the development engineer considered that standard conditions of consent would be applied in the event consent was granted and no extra measures were needed.

7. Clause 7.3 addressed development within flood planning areas. This clause has now been repealed but at the time the application was made read:

7.3 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) 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) will not 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) will not 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.

16. The development engineer’s assessment concluded that the proposed dwelling was not compatible with the flood category of the site and should be refused.

17. This was the core issue in the appeal and will be considered further later in this judgment.

18. Clause 7.6 of PSLEP required that development consent must not be granted unless the consent authority is satisfied that services “that are essential for the development are available or that adequate arrangements have been made to make them available when required”.

19. Vehicular access and electricity were available, and the Applicants listed appropriate methods for the provision of water, sewer and stormwater services, as reticulated services were not available.

20. The applicable Development Control Plan when the application was made was Port Stephens Development Control Plan 2014 (PSDCP). This has since been amended. At the time of the initial assessment of the application the provisions of the PSDCP in relation to flooding were given considerable attention.

21. Section 4.15(1)(b) of the EPA Act requires that the consent authority consider the likely impact on the environment of the proposal. The development engineer considered that the proposal would result in flood isolation during floods smaller than the future 1% ARI and would place additional people at risk during floods and impose an extra burden on the State Emergency Services (SES).

22. Section 4.15(1)(c) requires consideration of the suitability of the site. Although the zoning of the site (RU1) would permit the development with consent, the assessment considered that due to the identified flood hazard the proposal was not a suitable outcome for the site.

23. Section 4.15(1)(e) requires that the consent authority consider the public interest. The Council officer considered that granting consent was not in the public interest due to the development not being suitable due to the flood risk.

The proceedings

24. The matter was allocated by the Court to conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act), as the application was for a single dwelling. I presided at the conciliation conference which commenced on 16 February 2022, by AVL because of the procedures implemented during COVID-19.

25. While there was lengthy discussion between the parties, and between their experts, no resolution was reached, so I terminated the conciliation conference and the matter was continued on 17 February 2022 as a hearing, again by AVL. Neither the Court nor the parties and their experts took part in a joint site inspection. This was an inevitable consequence of the COVID-19 restrictions. Although there was no combined inspection by parties and experts, the parties have long experience of the area, and the experts had also visited the area on other occasions and were very familiar with the area and the issues. The documents in evidence were well illustrated so the Court could gain an appreciation of the features of the area and of the issues.

26. The proceedings were an appeal against the refusal by the Council on 30 April 2022 of the DA lodged by the Applicants on 8 March 2019 for a dwelling house (a single storey dwelling) to be situated on Lot 51 in DP 125064 with the street address of 1 Swanreach Road, Hinton. There is an already approved mound on Lot 51.

27. Earth mounds are a feature of the landscape over a much larger area than the subject site. They are structures for which development consent is required. The purpose of construction of mounds was primarily to provide flood relief for livestock (predominantly cattle). In the case of the mound on Lot 51, the Applicants have made clear their intent to provide a mound to facilitate the development of a single dwelling. The Applicants had lodged on 18 September 2018 their development application seeking consent for the construction of a flood mound (development application no. 16-2018-621-1) (Mound DA). The application indicated that the Applicants intended that the mound would be used for a residential development. The Assessment Report prepared by Council officers (Ex 3 folios 1-10) stated that the land was classified as Flood Prone Land (High Hazard Flood Storage). The Assessment Report also acknowledged that the intended use of the mound was for residential development (at folio 7 in the section headed ‘Internal Referrals’; at folio 8 under the heading ‘Clause 7.3’; folio 9 second paragraph under the heading ‘Chapter B5-Flooding’ (Chapter B5 is a Part of the PSDCP)).

28. The last sentence on folio 9 of the Assessment Report reads:

“Given the mound is intended for residential development a condition was placed stating that the mound should be at 6.2m AHD consistent with the FPL.’’

(FPL is the Flood Planning Level)

29. The FPL is 6.2m AHD which is calculated as the 1% AEP + 500mm freeboard stated on the 2018 Flood Certificate (Ex J).

30. The Mound DA was approved subject to conditions:

“The Mound DA was approved subject to conditions (“Mound Consent”). A copy of the Notice of Determination dated 31 January 2019 approving the Mound DA is in Exhibit 2 behind Tab 4 at folios 27-32. Condition 5 of the Mound Consent can be found at folio 30 which required the finished level of the constructed earth mound to be at a height no lower than 6.2m AHD. In simple terms, the Respondent was aware that the Applicant was seeking consent for the mound so that they could construct a dwelling house on top of the mound and, with that knowledge in mind, the Respondent required the top of the mound to be at the flood planning level to facilitate that future residential use.”

(Applicants’ closing submissions dated 8 March 2022 par 12)

31. The Notice of Determination, dated 31 January 2019 (Ex 2 Tab 4 folios 27-32), provides in Condition 5 at folio 30:

“...the final level of the constructed mound is to be at a height no lower than 6.2 m AHD. The condition specifies a height no lower than 6.2 m AHD, it does not limit the height if the Applicants construct a mound higher than 6.2 m AHD.”

32. By setting the minimum height at 6.2m AHD the Applicants may have assumed that the Council was aware of their intent to construct a dwelling house on top of the mound and so required the top of the mound to be at or above the FPL to facilitate the future building of the dwelling house (see Applicants’ closing submissions dated 8 March 2022 at par 12).

33. The Council considers that the original approval for the flood mound was for “an innominate use” (for example in the Council’s outline of submissions filed 9 June 2022 par 37) regardless of what may have been intended by the Applicants, and for which in the Assessment Report (Ex 3 folios 7-9) potential for future development of a house on the mound was acknowledged by the Council officers who had prepared the Assessment Report.

What occurred during the two years after lodging of the DA and its eventual refusal by the Council?

34. The chronology of events is laid out in Section E ‘Actions of the Respondent’ in the Statement of Facts and Contentions (SOFAC) at pars 27-36.

“27. The DA was lodged with Council on 8 March 2019.

28. In accordance with Port Stephens Council Community Engagement Strategy, the DA was not notified to adjoining properties as notification is not required for single storey dwellings. However, If the DA was to be amended to increase the flood mound, the amendment may be required to be notified in accordance with the Port Stephens Community Engagement Strategy.

29. Council Officers undertook inspections of the Site in April 2019 and June 2019.

30. The DA was reported to Council at its meeting on 10 September 2019. At that meeting it was resolved that the DA be deferred for a period of time to undertake a site inspection and convene the Floodplain Committee to consider amendments to the flood controls.

31. On 10 December 2020 an amendment to Chapter B5 Flooding of the DCP was endorsed which sets out prescriptive and performance based controls for new development on flood prone land.

32. Following the changes to the DCP, the Applicant was requested on 18 January 2021 to address the new controls and Councillors were invited to attend a site inspection.

33. On 16 February 2021, the Applicant provided an Addendum to Statement of Environmental Effects, which included a new Flood Impact Assessment Emergency Response Plan prepared by Torrent Consulting.

34. The DA was determined by Council on 13 April 2021 by way of refusal on the following grounds:

a. The proposed development fails to satisfy Clause 7.3 Flood Planning of the Port Stephens Local Environmental Plan 2013 as the development does not demonstrate that it is compatible with the high hazard floodway category of the site, including minimising the risk to life associated with the flood hazard (s4.15(1)(a)(i) EP&A Act);

b. The development does not comply with the controls contained within Chapter B5 Flooding of the Port Stephens Development Control Plan (s4.15(1)(a)(iii) of the EPA Act);

c. The proposed development does not demonstrate the site is suitable for the proposed site given the flood category of the land s4.15(1)(c) of the EP&A Act); and

d. The proposed development is not considered to be in the public interest as the development is inconsistent with the adopted principles and strategies which seek to promote the appropriate development of the land (s4.15(1)(e) EP&A Act).

35. The determination of the Council was reached for the following reasons:

a. The proposed development is not consistent with the objectives of the applicable Environmental Planning Instruments being: Port Stephens Local Environmental Plan 2013 (PSLEP).

b. The proposed development is not consistent with the objectives of the applicable Development Control Plan, being: Port Stephens Development Control Plan 2014 (PSDCP).

c. The proposed development is not consistent with the public interest as it is inconsistent with the adopted legislation and strategies of the land.

36. On 7 October 2021, the Applicant filed this Appeal against Council’s refusal of the DA.”

35. The Council “resolved that the DA be deferred for a period on 10 September 2019” (SOFAC par 30). As recorded in the SOFAC, no length of the period of deferral was specified. The SOFAC does not indicate whether the Applicants were advised.

36. In the Council’s outline of submissions dated 9 June 2022 at par 28, the changes to the PSDCP were discussed.

“Consideration of the planning controls in the DCP in relation to flooding

28. Port Stephens Development Control Plan (PSDCP) applies to the site. Of particular relevance to the determination of the issues in dispute is Section B, Chapter/Part B5 Flooding (hereafter Part B5) which applies to all development on flood prone land (as defined in the Glossary to the PSDCP). On 10 December 2020, Part B5 Flooding was amended to include prescriptive and performance based controls for new development on flood prone land, giving effect to Council’s resolution of 8 December 2020. While the performance based criteria in Part B5 are current as at the date of determination (and were not as at the date that the development application was lodged: 8 March 2019), there is no savings provision in the PSDCP suspending the application of the new controls vis-à-vis undetermined applications. The Applicants could have, but did not, appeal the deemed refusal of their development application within 6 months after the date of deemed refusal under s 8.11 (the deemed refusal period being 60 days), i.e. before Part B5 was amended in December 2020. The Applicants instead waited until 7 October 2021.” (footnotes omitted)

37. Two matters in this paragraph can be stressed.

38. Firstly, there is no saving provision in PSDCP suspending operation of the new controls for applications made prior to 10 December 2020. The DA was lodged with Council on 8 March 2019, well before the changes to PSDCP came into effect. As the DA had not been determined, the December 2020 amendments to the PSDCP apply in the assessment of the DA.

39. Secondly, par 28 of the Council’s outline of submissions suggests that the Applicants could have launched an appeal much earlier, on the basis of deemed refusal, any time after 60 days since the DA was originally lodged.

40. The Applicants in their closing submissions dated 21 June 2022 at pars 28 and 29 responded thus:

“28. Agreed in part. The Applicant accepts that the latest DCP applies however it sits ill in the mouth of the Council to say that the Applicants’ could have appealed earlier before Part B5 was amended when it was the Council who was holding back its determination of the DA so it could amend the controls and apply them to the development. on the evidence of Mr Jones, it also appears that Council changed the flood hazard category after the DA was lodged.

29. The DCP speaks for itself. The evidence is that the flood hazard category of the land at the time the DA was lodged was “High Hazard Flood Storage” and that the hazard category was changed to “High Hazard Floodway” by 9 April 2019. There is no satisfactory explanation for this change as there was no change in the material before the Council to prompt the change.”

41. The Applicants accept that the amendments made to the PSDCP in December 2020 are applicable to the assessment of the DA, but point out that it was the Council which deferred its consideration of the DA “so it could amend the controls and apply them to the development”.

42. An applicant can institute an appeal if a development application is not determined within 60 days of lodgement, but it is not mandatory that such an action is taken. The Court was not provided with any advice as to whether there were communications from the Council to the Applicants which indicated that the decision to defer determination of the DA had been taken.

43. The Applicants, in closing submissions at par 29, consider there is no satisfactory explanation as to why the hazard category had been changed from “High Hazard Flood Storage” to “High Hazard Floodway”.

44. There is some information provided as to the process resulting in the change, although whether this constitutes a satisfactory explanation is questionable.

45. The Applicants lodged the DA to build the dwelling house on the mound on 8 March 2019. The Council refused the DA by a Notice of Determination dated 13 April 2021, more than 2 years after it was lodged. During the two years the flood classification of the subject site was changed from “High Hazard Flood Storage” to “High Hazard Flooding” and there were also changes in the PSDCP controls applying to the site.

46. At the time the Applicants applied for approval to construct a mound they obtained from the Council a Flood Certificate, tendered in evidence as Ex J (Certificate no. 8 83-2017-191-1) (2018 Flood Certificate). There is nothing stated on the certificate which indicates an expiry date. The certificate states the flood classification of the site was High Hazard Flood Storage.

47. The PSDCP was amended around December 2020, and unlike the predecessor document specified that a Flood Certificate was valid only for 12 months from the date it was issued.

48. The Applicants, following the issue of the certificate in Ex J, had not applied for any other certificate, which is unsurprising as they thought they had a certificate which remained valid.

49. The Council issued a Flood Certificate in respect of the subject site on 14 February 2022 (2022 Flood Certificate). This certificate was not issued to the Applicants, who had not applied for a new certificate. The Applicants only became aware of the existence of the new certificate on the day before the hearing when they were served with the Council’s Supplementary Bundle (Ex 3 with the new certificate at folio 19).

50. The 2022 Flood Certificate, as well as being valid for only a year, differed from Ex J (2018 Flood Certificate) by having a different FPL of AHD 6.6m rather than 6.2m, and a change in flood classification to High Hazard Floodway.

51. The limited length of validity for the (new) 2022 Flood Certificate is not restricted to the Applicants’ land – the rule applies to certificates for land throughout the local government area.

52. No information was provided as to whether the Council had undertaken any publicity campaign to advise landholders of the change. It is possible that other landholders may no longer possess a valid certificate applicable to their land holding, and might only become aware of the need for a new certificate when they lodge a development application for modification of an existing building or construction of a new building.

53. For the majority of landholders a new certificate is unlikely to reveal a change in flood classification or changes to the FPL, but there might be some cases similar to that which became apparent to the Applicants.

54. There was no information provided on the (new) 2022 Flood Certificate which explained the basis for the change to flood classification – and no information was provided about how to access the relevant data which led to the changes. There does not appear to be a mechanism for a landholder to challenge the changes made to a certificate.

55. In her opening, Ms Irish, counsel for the Council, referred to the change from “High Hazard Flood Storage” to “High Hazard Floodway” in Tcpt, 17 February 2022, p 7(8-39):

“IRISH: So that's the 1 in 50 year event and that's fixed at 5.5 metres, so the observation made at para 25 of the facts is that the low point of Swanreach Road at RL2.4 AHD is well below that 5.5 which is what would be reached in the 1 in 50 peak flood level from a Hunter River event. If I then go back to para 17 of the facts on p 3 of exhibit 1 the site was provisionally mapped as high hazard flood storage based on information extrapolated from the Maitland City Council and Cessnock City Council, Hunter River Branxton to Green Rocks flood study WMAwater Sydney. Because that's one of the library of documents to which the flooding experts have regard in their full joint report. That document is actually included in volume 2 of exhibit 2 at p 331. I don't need to take you to that.

The flood storage designation has been superseded for the purposes of this development application. It was already designated as floodway not flood storage by the time that the assessment of this development application commenced. That's the purpose of including the referral document, the internal referral document at p 11 of exhibit 3 to which you were taken yesterday. So that was a document that was completed on 9 April 2019, so a month after the lodgement of the DA there was already by Mr Osborne(?) an assessment which when you look at p 12 hand numbered in exhibit 3 says at item (ii), "The proposal is…high hazard floodway." Opposite you can see a hand annotated flood velocity vectors diagram in the 1% AEP flood, hand annotated to show by a rough rectangle the location of Lot 51.

Then over the page you can see on p 14 there's information of the kind which is extracted for flood certificates, the flood summary includes that the highest hazard category by 9 April 2019 was high hazard floodway. So the council says it's irrelevant whether it was provisionally mapped in a different way before more fine grained attention to mapping occurred so as to identify it as high hazard floodway and there is a contest between the parties flooding experts as to whether the mound and what might be built on it is categorised under the hazard categorisation as high hazard floodway.”

56. The earlier classification was based on extrapolation from studies in nearby areas, but not, it would seem, on any direct observations of the site.

57. The Council says it is “irrelevant, whether it was provisionally mapped in a different way before attention to more fine-grained occurred” (see above Tcpt, 17 February 2022, p 7(35-36)).

58. However, there is no clear explanation as to what form the fine-grained mapping took.

PSDCP Part B5

59. Part B5 of PSDCP includes Figure BH – a diagram of the flood hazard landscape.

60. The topography has very little variation in elevation. There was no evidence produced that there has been a change in topography in the recent past, such that the position of the floodway has changed.

61. There have been other mounds constructed in the area and these might potentially alter flood behaviour.

62. Figure BH in Part B5 is to be taken as providing the characterisation of flood hazard on the site today regardless of how areas may previously have been mapped.

63. However, the change from flood storage to floodway, without an explanation being offered as to why the change was made, may not encourage faith in the accuracy orstability of the current mapping.

64. The flooding experts (Mr Williams, for the Applicants, Mr Cotterill for the Council) disagreed as to whether mounds within an area mapped as high hazard floodway are themselves to be categorised as being part of the floodway.

“I think Mr Williams has the view that if it's above the FPL then it is not high hazard floodway. Mr Cotterill holds the view that the mapping is of the land at a general scale and that it deliberately does not seek to accommodate every island or high point as being distinguished from and not having the overall characterisation of a high hazard floodway. I don't think anything turns on that context between the experts because it is common ground that this dwelling will be isolated during events that are even more frequent than the one in a hundred and it will be surrounded by high hazard floodway and the risk to life posed by that high hazard floodway in those circumstances.

So I don't think it's material to concentrate on the contest as to whether what pokes out above the flood planning level may or may not itself be characterised as a high hazard floodway the context in which this proposed dwelling would sit is that it's exposed to the risk of being surrounded by a high hazard and risk to life by isolation more frequently than the one in the hundred.”

(Tcpt, 17 February 2022, pp 7(41)-8(5))

“Mr Williams agrees that the broader site is within the High Hazard Floodway (Ex 4, p 6, [6], [11] and Ex 6, p 11), and Mr Cotterill and Mr Dylan Mitchell say, vis-à-vis the existing flood mound, that flood islands are included within the mapping of floodways as general practice consistent with the principles of the FDM [Floodplain Development Manual] (Ex 4, p 8, [28]; Ex 5, [1.20]; Ex 6, 11). The Court would accordingly accept that the man-made flood mound does not alter the hazard categorisation of the land which is a mapping outcome) or the substantial depth of flood waters that drive the high hazard flood conditions at the Site (per Mr Williams’ modelling discussed at paragraphs 18-19 above).”

(Council’s outline of submissions dated 9 June 2022 at par 32 on pp 12-13)

65. The Applicants took a different view.

“…The Council cannot overcome the fact that whilst the land may be mapped as a high hazard floodway, the mound does not function as a high hazard floodway. The FDM definition of a floodway is “areas conveying a significant proportion of the flood flow and where partial blocking will adversely affect flood behaviour to a significant and unacceptable extent”. This is not true of the flood mound.”

(Applicants’ closing submissions dated 21 June 2022 at par 32)

66. The issue is one on which there could be continuing academic debate, but I do not think the issue is of particular relevance to the matter at hand. The mounds could be considered to be islands above the floods, but they are limited in area, and any dwelling on a mound would, during floods, be separated from other areas above the flood level by water, and the depth of the water, the velocity of flow, and the length of time a mound will be isolated are important considerations in the determination of this matter.

67. Ms Irish suggests there is common ground between the experts about the frequency of isolation of the dwelling and the risk to life (Tcpt, 17 February 2022, p 7(46-49)). I think this is not a complete description of the experts' views, and that a more nuanced interpretation is required. The experts did agree on the estimated frequency of inundation, and they agreed that there was a risk to life, but the Applicants consider that the risk can be managed appropriately, whereas the Council considers that the risk could not be appropriately managed, and the existence of the risk requires that the DA must be rejected.

68. The original DA had not been notified, either to neighbours or, through public notice, to the general public. The non-notification was in accordance with the Port Stephens Community Participation Plan that does not require notification of any application for a single dwelling. There were therefore no submissions made by individuals or groups to be considered.

66. The Council did, however, seek advice from the SES. The response from the SES is in Ex 2 behind Tab 7 at folio 94, and stated that the position of the SES was:

“Unless there is some critical factor indicating otherwise the NSW SES does not generally involve itself in individual development applications. This is because the NSW SES is not resourced to do so.”

70. The letter outlined general principles which a consent authority would need to consider in making an assessment of a proposal, but does not make any specific recommendations in regard to the proposal in the DA.

71. It had been suggested that the application was for designated development with a requirement to seek General Terms of Approval (GTAs) from the Natural Resources Access Regulator (NRAR). GTAs have not been issued but correspondence from the NRAR indicated that in the circumstances of the case there was no requirement for them.

72. The application was originally for the construction of dwelling house on a concrete slab on an artificial mound and specified that the slab simply sit on top of the mound.

73. The Council’s engineer proposed, in a letter, which was tendered as Ex E, that the slab be supported on piles extending into the mound, and this was accepted as a modification to the design.

Relevant flood terms

74. Before discussing the evidence and the submissions of the parties, it is appropriate to introduce some of the terminology related to flooding and flood events used by the experts. Some of the terminology has already been mentioned in earlier parts of this judgment, but bringing them together, may assist the reader.

75. This discussion of terminology is largely derived from the Department of Infrastructure, Planning and Natural Resources’ Floodplain Development Manual: the management of flood liable land (2005) (Floodplain Development Manual), by direct quotation or paraphrase.

76. Annual Exceedance Probability (AEP): The chance of a flood of a given or greater size occurring in anyone year, usually expressed as a percentage. It can be applied not just to height of a flood but to other parameters such as velocity, which are all closely correlated. If the AEP is 5%, there is a 5% chance (a 1 in 20 chance) of the particular value of the parameter being exceeded in any one year.

77. Australian Height Datum (AHD): A national surface level datum which is approximately mean sea level.

78. Average Recurrence Interval (ARI): The long-term average number of years between an occurrence as big as or larger than the selected event. A flood with an equal or greater magnitude than the 20-year flood event will occur on average once every 20 years.

79. It needs to be stressed that this is the average over a long term. Available long-term documented records are from within the last approximately 200 years, that is, since the European colonisation of Australia, and for many localities have only been measured for considerably shorter periods. The knowledge of First Nations peoples has not been systematically explored, but may provide information over longer periods; sedimentary and geomorphological evidence has also been little studied to determine previous flood events.

80. The ARI is often referred to in terms, such as the 1 in 100-year flood, or 1 in 20-year flood etc. This is often done without recognising that the ARI is based on a long-term average - just because an individual event is classified as a 1 in 100-year flood does not mean that another 1 in 100-year flood may not be experienced at the same locality in the next year. An ARI described as a 1% event means that the probability of it occurring in any one year is 1 in 100 years; over a long period, the average occurrence would be 1 in 100 years.

81. Flash flooding is flooding that is sudden and unexpected and caused by sudden, local, heavy rainfall, and peaks within a matter of hours of the causative rainfall event.

82. Flood Planning Level (FPL): This is a combination derived from local levels observed from historical data or floods of specified AEPs with an additional freeboard incorporated into management plans - for the subject site the FPL is the 1% AEP + 500 mm.

83. Probable Maximum Flood (PMF) is the largest flood that could conceivably occur at a particular location and is usually estimated from Probable Maximum Precipitation, and the worst flood producing catchment conditions.

84. As has been shown in flooding events over the last few years, when preceding a particular flood event there had been extended periods of rainfall. This results in saturated soil and an increase in the likely run off.

85. Probable Maximum Precipitation: It is the highest precipitation for a given duration meteorologically possible over a given size storm area, and a particular time of the year. Importantly, no allowance is made for long term climatic trends, although trends likely to result from global warming may become important considerations in planning future developments for particular catchments.

86. A floodplain is an area of land, which is subject to inundation by floods up to, and including, the probable maximum flood event. A floodplain therefore occupies flood prone land (for which flood liable land is a synonym). A floodplain is more extensive than the area below the relevant flood planning level.

87. Two terms that are highly relevant to the present matter are flood storage area and floodway area. These are defined in the Floodplain Development Manual as:

“Flood storage areas are those parts of the floodplain that are important for the temporary storage of floodwaters during the passage of a flood. The extent and behaviour of flood storage areas may change with flood severity, and loss of flood storage can increase the severity of flood impacts by reducing natural flood attenuation. Hence, it is necessary to investigate a range of flood sizes before defining flood storage areas.

Floodway areas are those areas of the floodplain, where a significant discharge of water occurs during a flood. They are often aligned with naturally defined channels. Floodways are areas that, even if only partially blocked, would cause a significant redistribution of flood flow or a significant increase in five levels.”

88. Since colonisation by Europeans, the highest overbank flooding in the Hunter River was that associated with the February 1955 Maitland flood. The height of this flood was below what is predicted to be the probable maximum flood.

Planning controls relevant to flooding

89. In the SOFAC (Ex 1), Contention 1 was:

“1 Flooding

The consent authority could not be satisfied that the development complies with cl 7.3 of PSLEP.”

90. Clause 7.3 of PSLEP provides:

7.3 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) 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) will not 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) will not 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.

91. On 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 came into effect. Clause 7.3 of PSLEP was, by the operation of Sch 1 of the SEPP, repealed, without any savings provisions. (The equivalent clause was repealed in all other LEPs.)

92. Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 inserted in PSLEP (and all other LEPs across the State) a new clause—cl 5.21: Councils have the option of also including an additional cl 5.22 of Special Flood Considerations.

93. However, cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 states:

8 Application of amending orders

(1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order.

(2) (Repealed)

(3) In this clause—

amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order.

94. The DA, the subject of these proceedings, was lodged before 14 July 2021, and therefore, pursuant to cl 8(1), cl 5.21 does not apply.

95. The deletion of cl 7.3 and the inapplicability of cl 5.21 to the DA creates a lacuna, which has been discussed in a number of judgments, of which those delivered before the date of the Council’s final submissions were summarised by Ms Irish in her final submissions of 9 June 2022 in Annexure A.

96. The repeal of cl 7.3 means that, while cl 7.3 was relevant at the time the Council’s SOFAC was filed, Contention 1, and most of its particulars, are no longer relevant to determining the matter (Applicants’ closing submissions of 8 March 2022 pars 23-28).

97. Because the DA was lodged prior to the introduction of cl 5.21 in PSLEP, cl 5.21 does not apply. In the cases referred to in Annexure A of Ms Irish’s final submissions the facts of each case differ and there were also differences in whether it was considered that cl 7.3 and 5.21 applied. In the most recent of the judgments referred to by Ms Irish – OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 (OM Vinayak) - Commissioner Dickson provides a cogent analysis as to why neither cl 7.3 nor 5.21 applied in that case, and this analysis is equally relevant to the current matter (although the circumstances in the case were different from those in the present matter in that the development was in a low risk flood area and the depth of inundation during a 1% AEP event was in the range 0.3m-0.5m). The apparent anomaly will only have arisen in matters involving development applications submitted but not determined prior to the introduction of cl 5.21, so the number of cases in which it is manifest will be limited.

98. Even if there are no specific provisions in the LEP relating to flooding which apply in the particular circumstances of this case, it is agreed that the site is flood prone, so that flood-related matters need to be considered.

Evaluation of the DA

99. Evaluation of development applications must take into account the requirements of s 4.15 of the EPA Act:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

100. I am required to consider, in particular, s 4.15(1)(a)(i), (iii), s 4.15(1)(b), (c) and (e).

101. Section 4.15(3A) provides:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

102. Importantly in this matter the note to subs (3A) is relevant as performance criteria come into play.

103. The requirement to consider the DCP applies to all evaluations but is of greater significance here given the repeal of cl 7.3 and the non-applicability of cl 5.21 in the PSLEP.

104. Ms Irish in her opening addressed the issue:

“In Gardiner Commissioner Morris while she was dealing with a two lot residential subdivision on flood prone land not a dwelling house such as this it was proposed that the response to manage the risk of the flood proneness of the proposed subdivision being a stay in place protocol it was considered by her not to be acceptable but the approach she took to what statutory provision applied was that the LEP does not contain specific provisions but the provisions contained within the DCP guide determination of the application so she went down the path that Commissioner Chilcott trod in the Rothshire matter which is to use the DCP for guidance in a context of there being no effective LEP provision during this lacuna that exists between the repeal of, in our case, 7.3 and the application of 5.21.”

(Tcpt, 17 February 2022, p 9(37-47))

(Gardiner is Gardiner v Central Coast Council [2022] NSWLEC 1007)

105. Application of DCP provisions to fill the lacuna had occurred in a number of other cases included in Annexure A to the Council’s final submissions, including OM Vinayak.

106. Section 3.42 of the EPA Act reads as follows:

3.42 Purpose and status of development control plans (cf previous s 74BA)

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

(2) The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43(1)(b)–(e).

(3) Subsection (1) does not affect any requirement under Division 4.5 in relation to complying development.

107. Although a DCP is not a statutory instrument, it should always be given consideration in the evaluation process, as a ‘fundamental element’ and ‘focal point’ in decision making (Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75] per Spigelman CJ). The weight required to be given to the DCP is perhaps greater in this matter given the absence of applicable specific flood related requirements in PSLEP.

Applying the flood provisions in PSDCP

108. Part B5 Flooding of the 2021 version of the PSDCP is the version of the DCP applicable to the DA.

109. Figure BF determines the assessment pathway to be deployed:

110. The progression through Figure BF was described by Mr Staunton:

“Now if you go to the DCP which came into operation and you heard in opening the council deferred my client's DA so it could make this DCP. If you go to those provisions and you go to the table, which is the application so folio 138. It says "Is the development…or planning certificate?" The answer's yes. That then says, "DCP Part B5 - flooding applies." It says, "Determine the flood…of the land." The council now say it's high hazard floodway. Then if the land is described as "flood prone land subject to further investigation." We're not presumably you then just go down to the next arrow. "Is the proposed…in figure BL?" and the answer is no. If you look at BI it's not identified as with a "U" it's identified with a "PV" and then it says "Is the proposed…applicable development controls?" If the answer to that is "Yes" it says "No flood related controls apply."

Well we're a no, so you go to the next one. "Is the proposed…to development controls?" The answer is "Yes." So you shift across to the right and it says, "Apply development controls at B5.1 to B5.17" and then it goes down a step and it says, "Development that cannot…B5.18 to B5.20." So they are the controls in 5D. I don't, I'm not going to put to you and I would reject any construction of the DCP that then says you go back to the left arrow and have to comply with that. If you meet the requirements in that box which is the performance based requirements then you pass the test of the DCP. That's what I say the focal point of your assessment should be.”

(Tcpt, 17 February 2022, p 18(16-37))

111. Flood categories are those in the table in Figure BG:

112. The subject land is, as stated on the 2022 Flood Certificate issued by the Council to itself just before the commencement of the hearing, within a High Hazard Floodway (see also Figure BH reproduced at [59] above).

113. The Glossary to the PSDCP is in Section E1 of the PSDCP - this includes definitions of both low and high hazard areas (not floodways but the concept appears similar).

“low hazard flood area is the area of flood where, should it be necessary, a truck could evacuate people and their possessions or an able-bodied adult would have little difficulty in wading to safety.”

“high hazard flood area is the area of flood which poses a possible danger to personal safety,where the evacuation of trucks would be difficult, where able-bodied adults would have difficulty wading to safety or where there is a potential for significant damage to buildings.”

114. These definitions are important in that they indicate that Council contemplates circumstances when evacuation might occur on foot, or by truck when there is some water covering the accessway, but not in high hazard areas.

115. Truck is applied in common parlance to a very broad range of vehicles - which encompasses a very wide range of sizes and forms. Truck is not a term defined in the E1 Glossary. During the hearing I sought to clarify what types of truck might be anticipated to be relevant, but enlightenment was not forthcoming.

116. Suitable land uses for lands in particular flood hazard categories are identified in Figure BI (there is some confusion in the PSDCP, with references to both Figure BI and Figure BL – but there was agreement that this was most likely to reflect a proofreading error and that both BI and BL refer to Figure BI).

114. The proposed development is categorised as a dwelling house, for which Figure BI specifies for High Hazard Floodway PB - which is explained in the legend as “A performance based solution may be provided to demonstrate that the proposed land use is suitable.”

115. The table in Figure BI does not identify development in floodways as being unsuitable - such a characterisation would prohibit any dwelling house being constructed on the subject site, rather it permits an applicant to propose a performance based solution.

116. B5.D establishes criteria for determining the acceptability of proposed performance based solutions.

“B5.D Application of performance based solutions

Objectives

Performance based solutions that meet the objectives listed below apply to:

• Proposed development identified as suitable on flood prone land in Figure BI that cannot meet the relevant development controls in this Part; or

• Proposed development that is identified as possibly suitable on flood prone land in Figure BL, subject to performance based solutions.

Performance based solutions

Risk to life

B5.18

The proposed land use is consistent with Figure BI, which shows suitable land uses by flood hazard category (as identified on a flood certificate) and the proposed development incorporates adequate measures to manage risk to human life from flooding, including:

• Evacuation access from an area affected by flooding to an area free of risk from flooding, taking into account any potential access restrictions;

• Warning times and procedures to make people aware of the need to evacuate;

• Consideration of the current and potential future occupants; and

• Consistency with the most recent Council adopted flood study or floodplain risk management study that has been undertaken for the site.

Risk to property

B5.19

The proposed development will not increase the potential individual or cumulative flood impacts on other development or properties that are likely to occur in the same floodplain. In determining any potential increase in flood impacts, Council will consider:

• Future (in the year 2100) flood levels and/or velocities including, but not limited to the 5% AEP flood event, 1% AEP flood event and probable maximum flood (PMF) events;

• Loss of flood storage in the immediate floodplain; and

• Consistency with the most recent, Council adopted flood study or floodplain risk management study that has been undertaken for the site.

Flood hazard computability

B5.20

The proposed development must be compatible with the flood hazard category of the land (as identified on a flood certificate) or include mitigation measures or offsets to reduce the flood risk. In determining compatibility, Council will consider:

• Whether there is other land on the site with lower flood risks where the development could be located;

• Depth of flood inundation on the site and the adjacent land;

• Flow velocity on the site as well as upstream and downstream from the site;

• Suitability of design so that the development does not become isolated by high hazard floodwaters; and

• Consistency with the most recent, Council adopted flood study or floodplain risk management study that has been undertaken for the site.

120. The Council was satisfied that Risk to Property was not a concern, so that B5.19 need not be considered.

121. However, B5.18 Risk to Life, and B5.20 Flood Hazard Compatibility remain important matters for consideration, and underlay much of the discussion when the experts appeared, by AVL, and were cross-examined.

Evidence from experts

122. Four expert witnesses gave evidence:

1. For the Applicants:

1. Mr Daniel Williams - Flood engineer.

2. Mr Hugh Jones - Planner.

2. For the Council:

1. Mr Bryn Cotterill - Senior Development Engineer.

2. Mr Dylan Mitchell - Senior Development Planner

123. Mr Williams and Mr Cotterill had prepared a Joint Expert Report, which became Ex 4, filed on 28 January 2022.

124. Mr Jones and Mr Mitchell had prepared a Joint Expert Report which became Ex 5, filed on 8 February 2022.

125. All four experts had held discussions on the day before the hearing as a group and the resulting Joint Expert Report became Ex 6.

126. All four experts were present by AVL during the hearing.

127. Mr Williams had prepared the BMT flood impact assessment, dated 11 September 2018 that was annexed to the initial Statement of Environmental Effects prepared by the Le Mottee Group for the Applicants.

128. He subsequently prepared, when he was employed by his own company, Torrent Consulting, a further report dated 15 February 2021.

129. The modelling and reports prepared by Mr Williams related to a Hunter River flood event, and not to local (flash flooding) events, although localised events were modelled by Mr Williams immediately before the hearing.

130. A subject of concern to the Council was the frequency and depth of flooding along Swanreach Road. Mr Williams was questioned by Ms Irish about the low point on Swanreach Road, which is the access road from the proposed development location.

“IRISH: Could you help the Court with where those depths are?

WITNESS WILLIAMS: No it's just normally we'd put a general description of the depths so you know if the average sort of ground - ground level at a site is 2.3 metres below the flood level we would just say you know typical depth's around 2.3 metres, just to provide some contextual information.

IRISH: Then you continue in that sentence, "So it's the substantial depth of floodwater that drives the high hazard flood conditions at the site."

WITNESS WILLIAMS: Yes, correct, yeah.

IRISH: You remain of that view?

WITNESS WILLIAMS: Yes, that's correct they, they are dominant, they're the dominant driver of hazards. There's two combination - the hazard is a combination of velocity and depth and it's principally the depth that's the main driver of the high hazard conditions of the site, yep.

IRISH: I understand. Then you prepared the Torrent Consulting report on 15 February 2021.

WITNESS WILLIAMS: Yes, correct.

IRISH: And that again discusses the Hunter River flooding.

WITNESS WILLIAMS: Yep, yep.

IRISH: You talk on page 5 about the limited assistance provided by the Branxton to Green Rocks flood study and so you remodel the peak design floods downstream of Maitland for this site, that's correct, isn't it?

WITNESS WILLIAMS: That's correct, yes.

IRISH: Table 4, do you have a copy of your 2021 effort with you?

WITNESS WILLIAMS: Not open but I can, I can open it quite readily so I'll - just bear with me whilst I open it up.

IRISH: Sure, so I'm looking at table 4 on page 5.

WITNESS WILLIAMS: Yep.

IRISH: These are the design events and the flood levels that the Court should have regard to in determining the impact of the Hunter River flooding. That's correct, isn't it?

WITNESS WILLIAMS: Not necessarily, it depends what we're talking about. If we're talking about flood planning levels then no because they depend on council's adopted ones but if we're just - if some, I'll give some context to them. So the models purpose is produced to assess flood impacts so relative impacts. So if we're building a mound we can model the pre-imposed conditions and identified flood impacts. But the model doesn't seek to overturn council's adopted flood planning levels. So models that are developed for flood planning purposes, you know, commissioned by councils and adopted through the formal council process it doesn't seek to make council stuff obsolete or - it just seeks to be able to provide a tool for determining flood impact assessment requirements and also assisting in you know information for flood emergency response needs.

IRISH: Understand and your focusing here on the modelled peak design flood levels from a Hunter River flood event not in this document from a localised event, that's correct isn't it?

WITNESS WILLIAMS: This is the Hunter River event in this document. In terms of the local catchment event that's what I have undertaken in the last few days and we've provided, yes.

IRISH: The low point of the road access when council filed a document called the statement of facts and contentions it said it was a low point of 2.4 metres AHD in Swanreach Road, you'd agree with that?

WITNESS WILLIAMS: I disagree with that. I believe it's about 2.5, I think we've both had this discussion with Mr Cotterill, I think we're both referring to the, the New South Wales and LiDAR elevation data set and at the low point of the road there's a large tree that obscured some of the, the ground surface points so you can tell, I mean, I've got significant background in GIS so I'm very used to dealing with topographical terrain, survey data sets and you can kind of see the impact that this tree has had on the, the ground surface underneath. But if you look at the, the camber of the road which is got a high elevation on the, along the eastern edge, you can see that that's around, that's around that 2.5 metres AHD and then there's a bit of a gap in that where the tree is obscuring levels and then, and then it jumps to 2.5 metres AHD again once you get to the other side of the tree. So with the best available information I would say that we're, we're about at 2.5 metres AHD rather than 2.4.

IRISH: Do you agree with that Mr Cotterill or disagree?

WITNESS COTTERILL: I agree that there is some uncertainty we can't be a hundred per cent reliant on the LiDAR levels. To the best of my knowledge the - it's in the order of 2.4 or 2.5 metres as Mr Williams says.

IRISH: Have you visited the site, Mr Williams?

WITNESS WILLIAMS: I have, yes.

IRISH: So should we deduct 2.5 from the model peak design flood levels in your table 4 on page 5 of your Torrent report of 15 February 2021?

WITNESS WILLIAMS: Correct, yes.

IRISH: In order to understand the approximate depths at the low point of the road?

WITNESS WILLIAMS: Yes, so I modelled the actual low point physically at 2.49 so if you want to be very specific I would, I would subtract 2.49 rather than 2.5. I'm just referring to 2.5 because of the inherent uncertainty like Mr Cotterill's alluded to but yes I've modelled it at 2.49, so that's technically what should be subtracted.”

(Tcpt, 17 February 2022, pp 31(4)-33(13))

131. Accuracy to the nearest centimetre is unnecessary, and neither would I put any great weight on the 10cm difference between 2.4-2.5m AHD, but it is important to be aware that Swanreach Road would have water lapping over it during flood events at levels well below the 1% AEP level.

132. Ms Irish subsequently questioned Mr Williams about the consequences of the introduction of the low point on Swanreach Road. (In the passage below references is made to the FERP (Flood Emergency Response Plan) in Ex H). The FERP evolved over time with the final version being Ex U. (Given the importance of the FERP, Ex U is included as Attachment 1 to this judgment. The changes to the FERP did not affect the general tenor of the discussion reproduced below.)

“IRISH: … we're in the predicament that at best we're on a site which is isolated and it is unsafe for vehicles and people--

WITNESS WILLIAMS: That's correct, yes.

IRISH: And all fences are susceptible to failure which isn't relevant so you accept in the first paragraph on page 7 that the frequency of short duration high intensity rainstorms is expected to increase?

WITNESS WILLIAMS: Yes, yes that's correct, yes.

IRISH: And a large river system, what I want to put to you is that a large river system event is not a useful predictor of the Swanreach Road affectation without also considering the possibility of a localised event which you've now done in the additional modelling in the last couple of days.

WITNESS WILLIAMS: That's correct, that's what we've done in that additional model, yeah.

IRISH: So you wouldn't rely upon just this large river predictor assessment in order to make an informed decision about the Swanreach Road affectation for the purposes of determining this development application? You'd consider both?

WITNESS WILLIAMS: We've considered both, yep.

IRISH: Yes, okay now the large river system warning that you rely upon you say 24-hours is the Maitland Belmore Bridge gauge triggering a warning of a moderate or major flood, that's correct isn't it?

WITNESS WILLIAMS: That's correct, yes.

IRISH: But the site access is inundated in the large river system event between a minor and a moderate flood, you say that twice, you say it once in this Torrent flood risk assessment--

WITNESS WILLIAMS: Yep.

IRISH: --you said it again in the FERP which is now exhibit H, don't you?

WITNESS WILLIAMS: Yep.

IRISH: And that's between - at the foot of page 7 in this Torrent flood risk assessment for example you say that the site access becomes inundated between the 50% and the 20% event, that's somewhere between the one in two and the one in five year event, that's correct, isn't it?

WITNESS WILLIAMS: That's correct, I mean it's actually probably very close to a one in four but we don't normally because of uncertainty we don't normally specify actionable frequencies of flood in between the standard design events which is why you normally say between a 50 and 20 you don't normally say at a 25% AEP, it's just not standard practice.

IRISH: I understand. But that's a reasonable frequency want to put to you. On page 9 you actually say in your second paragraph the frequency of a moderate flood event is expected to occur on average every few years.

WITNESS WILLIAMS: Yes, correct.

IRISH: So we've got a frequency of site access inundation between the 50% and the 20% and that's coupled with you saying that the moderate gauge event is itself likely to be on average every few years?

WITNESS WILLIAMS: Yes, because they're consistent with each other, so some context might help assist is that the moderate flood warning trigger is specifically at that level because that's the level that it is known that the levy (sic) system overtops so these flood warnings levels of triggers are always tied to some sort of consequence. So that moderate level is at that level because they know from past floods when it gets to 8.9 at Maitland our levy (sic) system is getting, getting compromised.

IRISH: But my point is the moderate flood is not the first point at which the site access becomes inundated, it happens between minor and moderate, doesn't it?

WITNESS WILLIAMS: It happens at the moderate.

IRISH: No it happens, you say twice, once in this document and again in the FERP, you say site inundation occurs between the minor and the moderate flood at the Belmore Bridge gauge.

WITNESS WILLIAMS: I think it was like, something like 8.8 but again see that would be based on that would be based on my modelling which is not as reliable as SES is and the BOMs triggers there so I think, like, in my modelling for instance it happened 8.8 not 8.9 but like I say they have specifically been set at 8.9 because they know that is the level at which it occurs. So in all intents and purposes their consistent but technically just a minor difference.

IRISH: Yes but it's an important difference because evacuation needs to occur prior to that inundation in order to avoid being isolated by flood waters or in order to avoid the restriction on evacuation.

WITNESS WILLIAMS: Yes well this is why I've then recommended it in the FERP that it's at that moderate level because that is the level that at which the levy (sic) system overtops.

IRISH: No it needs to be before the moderate level because inundation occurs before the moderate flood.

WITNESS WILLIAMS: No - it shouldn't, in the modelling that I looked at in this assessment it occurred like a hundred mils difference, 8.8 rather than 8.9 and that's why I've said that there but then when I've analysed it in more detail producing the FERP that's why we're triggering it at the moderate, I mean that's why it's set so that it's more reliable because that moderate level 8.9 is set on actual flood events not, not model flood events. So it's, yeah, I would rely on that over, over what my modelling was suggesting.

IRISH: In the middle of page 8 of this assessment you say that the ultimate magnitude of the flood may not always be known in advance. That's still your position, isn't it?

WITNESS WILLIAMS: Yes, that's correct, yes.

IRISH: The frequency of inundation, that is between the one in two and the one in five rounded out although you say it's not standard practice to say that you think it's actually about one in four--

WITNESS WILLIAMS: That's correct, yeah.

IRISH: --the frequency of that inundation, I want to put to you, might lead to a complacency about evacuating?

WITNESS WILLIAMS: No I disagree with that. You know I'd say if it was something that was happening, you know, three or four times a year for instance then obviously that could generate a complacency I think happening on average once every four years is, is an ideal kind of frequency because it's not like every 20 years where it's - you're never going to be experiencing it but once every four years is, is not frequent enough to be a nuisance or complacent but, but a nice frequency at which to, to actually be able to practice putting the evacuation in the FERP into place.

IRISH: But Mr Williams if I live in the flame zone I'm not necessarily at risk of having to evacuate for a bushfire with the frequency of one in four years.

STAUNTON: I object. What's the relevance of a bushfire to the flood?

IRISH: Mr Williams, this is a real and present recurring risk not merely a possible risk isn't it? It's a real and probable risk that there will be a flood event that requires evacuation at a frequency of about one in four years according to you?

WITNESS WILLIAMS: Correct, yes.”

(Tcpt, 17 February 2022, pp 35(20-38(12))

133. Mr Williams’ view that the frequency of the need to evacuate was ‘ideal’ was not subject to further discussion, and neither party cited any evidence from other studies about the inducement of complacency. Mr Williams’ hypothesis may be intuitively credible, but as it stands it is merely untested speculation. However, the FERP requires evacuation, so regardless of whether residents might become complacent, if approval were granted the conditions of consent would require observance of the requirements of the FERP.

134. Ms Irish was concerned that there might not be adherence to the FERP:

“IRISH: It's because of the use of self in that evacuation model that there is a concern that the particular occupier may not do all of the things that are prescribed as things they should do in the FERP, do you understand that there is room for concern that the FERP says you should do this, that and the other but that a particular occupier might in a circumstance not avail themselves of any of those things?

WITNESS WILLIAMS: Yes, correct, as they could do with a bushfire one, you know, you can't, you can't physically go in there and, and control what people do.

IRISH: That sort of person, is therefore a person of a type in respect of whom it's understandable that there might be a transfer of risk to, for example, the SES?

WITNESS WILLIAMS: Not in the proposed situation when we've got the emergency refuge then, then if they stayed there obviously they could, they could take refuge in, in the space that's been indicated on the plans.

IRISH: But if could just get you to look at the FERP in its most recent rendition which is exhibit H? There's a lot of things on page 2 to 3 that they should do. So for example they should pay attention to any Flood Watch or flood warnings. They should follow instructions, they should be prepared to respond to a flood emergency without assistance. They should set themselves up to receive RSS feeds from the Bureau of Meteorology. They should actively monitor gauge levels. They should be organised and prepared for the flood, they should have an emergency kit, they should turn the power off; the electricity at the switchboard, the gas at the metre, the water at the metre, block toilet bowls with strong plastic bags.”

(Tcpt, 17 February 2022, p 38(19-47))

and

“IRISH: That's fine, you agree these are the things that should be done but might not be done by a particular occupier Mr Williams?

BC –Flood depth indicators at road low points as well as raising/sealing of Swanreach road from the development site to Hinton Road would improve chances of a successful selfevacuation through floodwaters

DW – The recent flood event was an excellent opportunity to evaluate the effectiveness of the FERP for the Site. In this regard, a Moderate Flood Warning was issued by the BoM for Belmore Bridge at Maitland early in the morning of 8/03/22 at the latest. I haven’t been able to view the specifics of the late afternoon Flood Warning issued 7/03/22, so cannot determine whether a Moderate Warning was issued for Maitland at that point in time. However, the Site was still readily accessible from Maitland, Morpeth and Hinton into the afternoon of 9/03/22, which is over 30-hours after the first confirmed Moderate Flood Warning. Even if warnings were somehow missed, there was visible evidence at the Site of the levee having been overtopped that could have been responded to in good time also. The specifics of the recent event (slow rise of flood level and peak between a Moderate Flood and 20% AEP design flood) make it close to a worst case in terms of forecast and warning. It is much easier for the BoM and SES to take decisive action when there is no doubt as to the likelihood of a Major Flood level being reached. Following guidance in the FERP would have enabled timely and safe evacuation from the Site (as would local visual clues without the benefit of the FERP). However, there are a couple of changes that I would make to the FERP following review of this event. First is to refer to the Green Rocks gauge data, as this provides an accurate indication as to the flood conditions directly impacting the Site. It doesn’t have flood warnings issued for it, which is why it was not included, but it does provide a useful option for observing local Hunter River water level conditions if the channel is not visible at the Site due to the time of day and/or environmental factors. The second change would be to refer to the BoM NSW Twitter feed, as this was much easier to follow and have access to the most relevant and up-to-date information than using the website.” (Ex 7 pp 4-5)

291. The power of the SES to order evacuations or other actions are provided in ss 22 and 22A of the State Emergency Service Act 1989:

22 Power to evacuate or to take other steps concerning persons

(1) The Commissioner may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency to which this Part applies, direct, or authorise an emergency officer to direct, a person to do any or all of the following—

(a) to leave any particular premises and to move out of an emergency area or any part of an emergency area,

(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the emergency area or any part of the emergency area,

(c) not to enter the emergency area or any part of the emergency area.

(2) If the person does not comply with the direction, an emergency officer may do all such things as are reasonably necessary to ensure compliance with it, using such force as is reasonably necessary in the circumstances.

(3) The regulations may limit the circumstances, and regulate the manner, in which the powers conferred by this section may be exercised.

(4) (Repealed)

22A Power to take other safety measures

(1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following—

(a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

(2) For the purposes of the exercise of a function under subsection (1) (a), the Commissioner or a senior emergency officer authorised by the Commissioner may require the person who controls or supplies the substance concerned to immediately send some competent person to the scene for the purpose of shutting it off or disconnecting it in accordance with the reasonable directions of the Commissioner or senior emergency officer.

(3) A person must comply with a requirement, or directions, under subsection (2).

Maximum penalty—50 penalty units.

(4) A person who supplies a substance referred to in subsection (1) (a) or (b) is not liable for any damages because of any interruption of that supply under this section if the supply is shut off or disconnected in accordance with the directions of the Commissioner or senior emergency officer.

(5) The regulations may limit the circumstances, and regulate the manner, in which the powers conferred by this section may be exercised.

292. It was argued by the parties’ experts that these powers have not, to their knowledge, ever been applied to the subject area. This does not mean that they will never be applied, merely that to date they have been dormant. In the event that they were applied an evacuation order would override the FERP. If there were predictions of a major flood approaching or exceeding the height of the 1955 Maitland flood it is possible that an evacuation order would be issued well before flooding occurred on the subject site.

293. The joint report contains a number of images taken by Mr Williams, illustrating the flooding on Swanreach Road at different times:

Figure 7 Swanreach Road at 22:52 8/03/22 (Source: Ex 7 Figure 3)

Figure 8 Swanreach Road at 07:39 9/03/22 (Source: Ex 7 Figure 4)

Figure 9 Swanreach Road at 15:00 9/03/22 (Source: Ex 7 Figure 5)

294. Although I recognise that Mr Williams has had considerable experience in the area, I am concerned about his view as to the trafficability of Swanreach Road (and other roads) during floods and share the concern implied by the Council:

“Mr Williams first visited the site at 10:50 PM on 8 March 2022 not 10:50 AM. That is when he observed that Hinton Road was closed. Council closed Hinton and Swanreach Roads from the afternoon of 8 March until 15 March. While Mr Williams might be excused for carrying out observations as to whether Hinton Road was in his (cf. the road authority’s) opinion, still trafficable; not so the driver of the vehicle which passed Mr Williams on Hinton Road travelling from Osterley on 9 March. See paragraph 59 above regarding Council’s concerns about human complacency.” (footnotes omitted)

(Council’s outline of submissions dated 9 June 2022 par 86)

295. Mr Williams indicated that he would not have driven where he did if he had a smaller car than his 4WD Pajero. Local residents may be aware of the limitations of smaller cars, someone with little experience (perhaps only visiting for sightseeing – a practice to be strongly discouraged, but perhaps difficult to prevent) might see any vehicle, such as a 4WD, or worse, a truck driving through floodwater and might assume that it is possible for all vehicles. The warning not to drive through floodwater in any circumstances should continue to be pressed.

296. The depth gauges proposed to be installed will be valuable for locals and for others experienced in driving through floodwater, but might not be understood by sightseers. However, unless there is complete closure of roads to all traffic, we can only appeal to commonsense, although knowing that this is a virtue not possessed by all.

297. The supplementary report filed on 5 May 2022 includes images of signage for road closure on Hinton Road in March 2022:

Figure 10 Example of road closure signage deployed at either end of Hinton Road (Source: Ex 10 p 5 Figure 2)

and floodwater closing the Hinton Road on 11 March 2022:

Figure 11 March 11 4:44pm view of Hinton Road towards Swanreach Rd from Osterley where road closure signage was placed immediately below frame (Source: Ex 10 p 6 Figure 4)

Conclusions

298. The proposed dwelling is permissible with consent, and the Council did not seek to apply B5.19 of the PSDCP, applying to risk to buildings, in its consideration.

299. The Council’s engineer accepted that the final building design was satisfactory, but there was no detailed analysis of the behaviour of the building in the event of a flood. Absent any reports and noting that the engineers were not cross-examined on the building and its likely safety in floods, I have no basis for questioning their conclusions and accept that there are no issues raised under B5.19.

300. The building is permissible with consent, subject to conditions imposed under the PSLEP and PSDCP. I am satisfied that the performance based conditions developed by the Applicants will, if applied, reduce the risk to human life; they are aimed at minimising risk, although whether the resulting risk is the minimum is difficult to determine given that there are few data or comparative studies to consider.

301. The PSLEP allows for approval of a dwelling house, subject to conditions, and the PSDCP allows for performance based conditions to be imposed. Provided the proposed conditions minimise risk, then, in my view, granting of development consent would be appropriate. Subject to some minor amendments to the draft proposed conditions, I am satisfied that development consent could be granted.

302. Development would not sterilise the economic and social values of agriculture on the site. The Council chose not to call Mr and Mrs Ward to question them on their affidavits about the values, both economic, and the less tangible, but still important, social values of continuing agricultural use of the property. The decision not to discuss the economic and social consequences (positive and negative) of the proposed development was one that was open to the Council.

303. The Council was concerned that adding a new dwelling to the area would increase the burden on emergency services and increased the risk to occupants. Given that the agricultural use of the site will continue then even if there are no residents, in the event of a flood occurring there will remain a need if there are cattle on the site for workers to be present to organise moving of the beasts to a safer area. The inclusion within the development of a flood refuge above the PMF provides a refuge if any workers are unable to evacuate before road access becomes unpassable. To that extent the proposal might lower the overall risk consequences of flooding.

304. If evacuation is achieved prior to flooding cutting the road access, the flood refuge will not be used. It is a last resort in the event that, for whatever reasons, evacuation had not been completed.

305. Given that the observance of conditions of consent is mandatory, I must assume that occupants are familiar with, and will observe, the requirements of the FERP. The FERP requires evacuation prior to flooding and for the prominent display of the FERP inside the dwelling. The emergency kit in the flood refuge is to be maintained, and items within it to be replaced if their use by date is reached.

306. The way the matter unfolded still contains elements of mystery – why was assessment of the application put on hold for two years to make changes to the PSDCP when if Council's underlying object was to prevent any new dwelling being built were modifications were not made to render development of a single dwelling unsatisfactory. Rather the Council opened up an avenue for development of performance based conditions, despite having changed the hazard categorisation of the land.

307. Given that the Council has not amended its PSDCP to prohibit the development of dwelling houses within a High Hazard Floodway but provides for the development of dwelling houses within floodways if performance based conditions can be applied, and that dwelling houses are permissible with consent and subject to conditions within the RU1 zone, I propose to grant development consent and uphold the appeal. Granting of development consent is subject to amendments to the proposed draft conditions and to the FERP.

308. It is well established that an applicant “always bears a persuasive burden of proof - the applicant must persuade the consent authority, whether it be the Council at first instance, or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed”: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 per Preston CJ at [2]. The Applicants have provided information and made submissions which satisfy me that the environmental impacts of the proposal can be satisfactorily addressed.

Conditions

309. In the Council’s closing submissions, conditions were discussed in par 79:

“After the hearing Council sought to rely on final draft conditions (Ex 9) to which the Applicants responded, initially in Ex M, and ultimately in Ex V. Council does not oppose the Applicants’ approach in Ex V to deferred commencement condition A(1). Council’s instructions are that the only dispute now remaining for determination by the Court is the Applicants’ objection to draft condition 2.0(9) and 5.0(10). Council presses those conditions.” (footnotes omitted)

310. The Council's draft conditions in Ex 9 were presented on a without prejudice basis. It remains the Council's position that consent should not be granted. As discussed above I have concluded that consent should be granted, subject to conditions. It is necessary therefore that I resolve the differences between the parties for those draft conditions that were not agreed, identify conditions for which the Court requires clarification, and identify additional matters which the Court requires the parties to address.

311. The Applicants' preferred conditions were presented in Ex V. I note that the Council accepts the changes suggested by the Applicants to the Deferred Commencement Condition (A)(1) which now reads:

“(A)(1) Pursuant to Section 4.16 of the Environmental Planning and Assessment Act 1979, a deferred commencement consent is granted to DA 16-2019-134-1 subject to the following conditions of consent:

1. Details of the diesel generator for the proposed flood refuge shall be submitted.”

To remove any possibility of doubt, the recipient of the details of the diesel generator should be identified so the wording should be “…shall be submitted to Council”.

312. The Council in par 79 of its closing submissions does not mention the Applicants’ proposed amendment to the table of Condition 1.0(1) for the inclusion of mention of the letter from Noble Hill Advisory of 12 May 2022, which discussed ventilation requirements for the flood refuge in the attic. The issue is an important one, and the proposals made by Noble Hill Advisory are appropriate. The letter should be included in the table as supporting documentation forming part of the application.

313. Proposed Condition 1.0(4) relates to approval of the OSMS under the Local Government Act. I agree with the Council's version.

314. Proposed Condition 2.0(9) is for works on Swanreach Road. For the reasons discussed earlier in the judgment (at [233]), I support the Applicants’ position that they should not be responsible for funding an upgrade of a considerable stretch of Swanreach Road, and, so consider that the wording of the condition should be that proposed by the Applicants.

Conditions requiring clarification

315. The Court requires that the parties amend the conditions of consent to clarify these points.

Condition 2.0(6)(b)

316. This refers to the “existing flood refuge and proposed development/ building flood refuge extension”. What is meant by the existing flood refuge? Is it the existing approved flood mound?

317. The proposed development is for construction of a dwelling house which includes a flood refuge within the attic.

Condition 3.0(10)

318. An all-weather vehicle access is to be provided from the kerb and gutter to the building under construction. Access will be from Swanreach Road - is Swanreach Road kerbed and guttered?

Condition 5.0(9)

319. A positive covenant in favour of Council is to be registered requiring compliance with the FERP. The positive covenant is presumably under the Conveyancing Act 1919 - this detail is normally specified in conditions.

Changes to existing FERP

320. The proposed dwelling will have four bedrooms. It is unlikely that the dwelling would be at maximum capacity all the time, but there might be periods when all bedrooms are occupied.

321. If there were eight occupants of the dwelling house this would be more than the capacity of the flood refuge if it were necessary for the refuge to be used.

322. The FERP should clearly state that there is a limit to the number of people who can be accommodated in the refuge and contain a requirement that the number of occupants in the dwelling house be reduced to a maximum of five (5) immediately a flood warning is issued.

323. Concern was also expressed by the Council about the possible inaccessibility of the flood refuge to disabled persons who might not be able to use the stairs. The FERP should require immediate evacuation of disabled persons when a flood warning is issued.

Additional conditions of consent required

A new condition of consent regarding the FERP

324. Mr Staunton, at par 77[1] of closing submissions dated 21 June 2022 stated “There are conditions of consent requiring the updating and implementation of the FERP.”

325. The conditions of consent include specification of the matters to be addressed in the FERP, and require the FERP be implemented for the life of the project. However, there are no conditions that specify a mechanism for future amendment to the FERP should that become necessary.

326. Future changes in the incidents of floods, or changes to the SES’s process of issuing evacuation orders, or changes in other government policies might generate a need to amend the FERP.

327. The current FERP was produced by the Applicants.

328. The Court requires the parties to provide a new condition of consent which:

1. specifies circumstances that trigger a need to revise the FERP; and

2. addresses whether amendments are to be prepared solely by the Applicants (or their successors in title) or require referral to Council.

Short-term rentals

329. The Council expressed concern that there is currently no restriction on renting some or all of the dwelling house on a short-term basis, and that it might become an Airbnb.

330. The Court requires that a condition be provided requiring that the dwelling house is not, at any time, to be used for short-term rentals.

331. The condition should not be specific to Airbnb as this is currently only one of a number of companies which handle bookings for short-term rentals, and the number of companies providing this service may increase in the future. In addition, individual owners of properties may handle their own short-term bookings. A definition of short-term rental should be included in the condition.

Directions

332. The Court orders:

1. Within 14 days of the date of these orders, the parties are to confer and if possible agree on the conditions of development consent which are to reflect this judgment, and file the agreed conditions.

2. If the parties are not able to agree on the conditions of consent, within 14 days of the date of these orders, each party is to file with the Court and serve on the other party the party’s version of the conditions of consent, and provide to the Court a Word copy of each party’s version of the conditions of consent.

………………………

P Adam

Acting Commissioner of the Court

**********

Decision last updated: 04 August 2023