Zheng v Hurstville City Council

[2014] NSWLEC 1030

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zheng v Hurstville City Council [2014] NSWLEC 1030

Hearing dates:

29 November and 3 December 2013

Decision date:

25 February 2014

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

The Court orders that:

1 The appeal is dismissed.

2 Development consent to DA No 2011/DA - 449 for the demolition of the existing dwelling and construction of 4 dwellings under the provisions of the SEPP (Affordable Rental Housing) at 4 Clarendon Road, Peakhurst is refused.

3 The exhibits may be returned except for 1, 3, 5, A and E.

Catchwords:

Development application: Affordable housing development, flood risk, character and amenity. Section 97B Costs.

Legislation Cited:

Environmental Planning and Assessment Act 1979
SEPP (Affordable Rental Housing) 2009
Seniors Living Policy - Urban Design Guidelines for Infill Development
Hurstville Local Environmental Plan 1994
Hurstville Development Control Plan

Cases Cited:

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

Xiao Ping Zheng (Applicant)
Hurstville City Council (Respondent)

Representation:

Mr K Webber
Wilshire Webb Staunton Beattie (Applicant)
Mr M Cotton
HWL Ebsworth (Respondent)

File Number(s):

10162 of 2013

Judgment

Background

1. This appeal is against council's refusal of a development application proposing four dwelling units under the provisions of the SEPP (Affordable Rental Housing) 2009. The site is located at 4 Clarendon Rd Peakhurst and it backs onto a watercourse that is liable to flooding. The contentions are summarised as following:

• Flooding risk to people and property within the development. Also whether flooding impacts would be exacerbated on adjoining properties.
• Character and amenity in terms of whether the proposal satisfies the zone objectives, the controls for frontage and parking and whether the design is compatible with the character of the area.

The site

1. The site is described as Lot 267A in DP 2179. It has a street frontage of 20.115 m and total site area of 1132.67sqm and is located on the northern side of Clarendon Road, Peakhurst near the corner of Belmore Road. The site has a fall to the rear northwest corner. An open watercourse (creek) crosses the site along the northern (rear) boundary, which has irregular widths and embankments. This watercourse at time carries significant volumes of stormwater and the site is affected by the 1:100yr flood level at the rear portion of the site.

1. There is an existing is a single storey dwelling with detached outbuilding on the site.

1. Adjoining the site to the west is a two-storey dwelling house. Adjoining the site to the east at the front is a single storey dwelling house. Behind that (to the east of the subject site) is a single storey dwelling which is located on a battleaxe lot with access from Belmore Road. A further site adjoins the rear northeast which fronts Belmore Rd. A number of adjoining properties have easements (some piped and some open) to carry stormwater.

1. Clarendon Road is divided by a wide landscaped median strip, which runs the length of the street. On the opposite side of the road are dwelling houses and a child-care centre. The area surrounding the subject site is predominantly characterised by one and two storey dwelling houses, some on battleaxe lots.

The proposal

1. This proposal involves the demolition of the existing dwelling and the construction of one (1) townhouse fronting Clarendon Road behind which are three (3) villas with basement car parking extending towards the creek. The rear Unit 4 has an overhang of approximately 3.5m over a floodway area adjacent to the creek.

Planning controls

1. A number of planning controls apply to this development with the SEPP (Affordable Rental Housing) 2009 (Policy) being the prevailing control. The aims of the Policy are:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

1. Clause 15 states that:

15 Design requirements

(1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy...

1. The Hurstville LEP 1994 is also a relevant control and the site is in the Zone 2 Residential where the general housing type is permissible with consent. Clause 2 contains the aims and objectives and cl 9 contains the following zone objectives:

a) to preserve and enhance the character and amenity of established residential areas,

(b) to allow a variety of housing types within existing residential areas,

(c) to encourage the conservation of residential areas which include individual buildings and streets of heritage significance,

(d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design,

(e) to enable redevelopment for medium density housing forms, including townhouses, villas, cluster housing, semi-detached housing, residential flat buildings and the like, where such development does not interfere with the amenity of surrounding residential areas, and ...

1. Associated development controls are contained in the Hurstville DCP No 1. Section 3.7 deals with drainage and onsite detention requirements and s 4.3 deals with multiple dwellings and residential flat buildings (where the Affordable Rental Housing SEPP is silent).

1. Other relevant controls include:

• Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment
• SEPP (Building Sustainability Index: BASIX) 2004
• Draft Hurstville LEP 2012. Insofar as this LEP has now been gazetted, it was a draft instrument at the time of determination.

The evidence

1. Detailed evidence was presented by:

• Mr G Falson; council's consulting planner
• Mr D Bewsher; council's consulting engineer
• Mr H Rehman; applicant's consulting engineer

1. The threshold matter in this case concerns the flooding risks. Mr Rehman initially undertook flood modelling for this catchment area to assess the flooding impacts at the subject site. The modelling results were reviewed by Mr Bewsher resulting in his agreement it was appropriate for the assessment of the current proposal.

1. The modelling is based on various assumptions, including impacts on neighbouring properties and effects of buildings and fences that will likely occur. The experts agree that any impacts are difficult to predict however Mr Bewsher accepts the assumptions that Mr Rehman has made. Although he considers it likely that the destruction of the rear garages in 171A Belmore Road and 1 Amy Street, may not occur in the 100 year flood event but in any case amendments to the modelling to include these different assumptions would not likely alter the flood behaviour to any significant extent for the purposes of the current proceedings.

1. The engineers note from the modelling that

a) approximately 91 % of the site is inundated in a 100 year flood;

b) although not specifically modelled, it is anticipated that:

(i) flood waters will commence to spill across the site in a 5-10 year flood; and

(ii)the entire site would be inundated in a probable maximum flood (PMF).

1. However the engineers disagree on the extent of high hazard conditions across the site in a 100 year flood and impact on neighbouring properties. Mr Bewsher considers that 44% of the site is high hazard whilst Mr Rehman considers that only 33% of the site is high hazard and that a further 13% is transitional hazard. These impacts are shown on Fig 1 in the second joint report (Exhibit E).

1. The Flood Study shows the changes in flood level resulting from the development. The experts agree that the two areas which receive increases in flood levels are:

• Nos 1 and 3 Amy Street where a maximum flood level increase of 2cm occurs although generally the increase is about 1cm; and
• On the eastern side of the development where a maximum increase of 30cm occurs. This has impacts on the rear of Nos 169 and 167A Belmore Road. It was agreed by the experts that this impact is a function of the assumption related to the collapse of fences and the projection of the northern face of the building footprint beyond the existing face of the footprint.

1. Whilst the flood level rise reported for the Amy Street properties is small and may not be significant, Mr Bewsher considers the increase reported for the Belmore Road properties is unacceptable. He says that approval of the development with increases of this magnitude on adjacent private property would be contrary to normal practice, in his opinion. Furthermore he considers the impacts arise as a result of the rear of the building footprint extending too far to the north into the floodway towards the creek area.

1. Mr Rehman's opinion about the increase in the flood level for the 169 and 167A Belmore Road is that this increase is contained within the proposed development and does not impact the neighbouring properties. It is caused by diversion of floodwater in the space between the fence and the proposed development, which did not occur under the existing conditions due to the location of the current building on site. He says that if the proposed development had a significant impact, it would have manifested in 169 Belmore Road, which is not the case.

1. Mr Bewsher also notes that the banks of the existing creek are very steep and are unstable. The garage development at the rear of 1 Amy Street is located within 1 m of the top of bank of the creek and consequently any bank erosion could have serious implications. Whilst acknowledging that the modelling shows only small changes to the creek velocities, he has concerns that the proposed development may further jeopardise the stability of this garage structure (which is already at risk of collapse in a major flood event).

1. However Mr Rehman says that the modelling results show only small changes to the creek velocity and hence there is no significant change in the erosion potential of the creek. The erosion issues at the rear of 1 Amy Street are primarily due to the encroachment of the creek and need to be addressed accordingly.

1. The other significant issue concerns the rear portion of the development, whereby the building footprint was reduced by 6.5m with northern wall at the ground level being moved 3.5m away from the creek and a cantilevered (partial living) area with undercroft for Unit 4 extending some 3.5m over the floodway. The experts agree that the clearance between the ground level and the underside of the floor of Unit 4 is likely to be about 1.3m depending on the natural ground levels.

1. But Mr Bewsher says that it is inappropriate to utilise the overhang to address the 3.5m setback, having regard to flooding constraints. Based on his experience, he considers the overhang inappropriate because:

(a)   the overhang may be enclosed by future occupants of the site, and/or used for storage; and

(b)   even if not enclosed, the overhang itself may be subject to blockage by flood debris, particularly from the adjacent fence (which has been assumed to collapse in the modelling).

1. Against this, Mr Rehman says that there is no industry standard for flood risk management practice regarding provision of overhangs in a floodplain. Accordingly he considers that overhangs can be allowed with appropriate constraints on development, such as restriction on title and site management conditions. He says such controls are more potent than simply preventing overhangs where the open space can potentially be built over by the future occupants.

1. Furthermore, Mr Rehman says that whilst it is possible that some debris carried in the floodwaters may rest under the overhang, a complete blockage of the entire space under the overhang is not likely because the nature of debris carried by the flood waters is highly unpredictable and it has the potential to block or restrict flow at any location in the floodplain, including the space under the overhang.

1. Mr Bewsher also expressed concerns about the consequences of approving the development in terms of the orderly development considerations regarding the future upgrading of this flood liable creek system. The experts agree that any upgrading of the creek would likely require land acquisition and could potentially involve any of the following options:

(a) 2 x 3.0m wide by 1.8m high reinforced concrete box culverts (RCBC) with an overland flowpath for excess flows, above and beside the culverts,

(b) concrete lined open channel with an associated overland flowpath on both sides of the channel; or

(c) stabilisation of a widened and naturalised creek channel tother with an overland flowpath on both sides of the channel.

1. Following his discussions with council staff, Mr Bewsher calculated that if the option in para 26(a) was pursued as previously proposed by Council, then in order for the overland flow path to remain safe for pedestrians (i.e. with velocity-depth products not greater than 0.4 sq m) a total flow path width of 44m would be required. In terms of the subject site. This means that an area 22m south of the creek centreline may need to be reserved for such a flow path.

1. Mr Bewsher considers this 22m flow path width to be the maximum that might be required and that with further design and investigation, some reduction in the 22m reservation could be achieved. Nevertheless he considers the existing building layout, which has the northern corner of the Unit 4 floor located only 7m from the creek centreline, to be inappropriate and unacceptable.

1. Against this, Mr Rehman considers the option in para 26(a) to be difficult to implement given the current state of the floodplain development due to the approximate extent of the flow path (44 m wide) required to implement this option. It requires acquisition of approximately sixteen (16) properties with demolition of a number of buildings to develop this flow path. Given this requirement, the option in para 26(a) is highly unlikely to be implemented.

1. Mr Rehman also notes that the option in para 26(a) would require a number of 'openings/grates/connections' along the length of the RCBCs to allow overland flow to enter the conduits from the adjacent properties. In his opinion, a more viable solution is the option in para 26(b). Mr Rehman has calculated that if the existing creek, which is approximately 7.5m and 2m deep, is replaced with a lined channel of size 4.5m wide and 1.5 m deep, the new channel would have the capacity to carry the entire flow (44 cubic sq m) from the upstream catchment. Since the channel capacity downstream of Clarendon Rd culverts is significant, the lined channel together with further upgrade of Clarendon Rd culverts could provide a significant benefit.

1. Whilst agreeing that open channel options could be considered, Mr Bewsher disagrees that the channel could be provided without an overland flowpath. Furthermore, he says that it is unlikely that creek upgrading/piping/channelization works would proceed upstream of the eastern boundary of the subject site. Such works would also require space to collect overland flows at the entry to the new works. This entry structure would constrain development of the subject site.

1. In addition to the aforementioned matters, Mr Bewsher identified the following additional concerns:

(a) the relatively frequent inundation of the site will necessitate regular clean up costs and repairs to yard areas;

(b) the potential for very significant damage including erosion of the creek banks, is likely in large flood events. Repairs to creek banks, restoration of damaged vegetation, replacement of damaged fences, etc, will likely be expensive;

(c) many of the sections and elevations on the amended plans do not adequately indicate the ground levels. This makes it difficult to appreciate various amenity and visual impacts. For example the levels of the walkway on the western side of Unit 4 is likely to be 1.8m above ground level on the western boundary of the development;

(d) similarly the courtyards on the eastern side are up to 1.3m lower than the adjacent patio areas. The impact on the amenity of these areas and the need to access them by stairs needs to be considered;

(e) all of the courtyard to Unit 4 and about half the courtyard to Unit 3 are located within a high hazard area;

(f) the entirety of the common open space area at the northern end of the development will be subject to high hazard flood conditions in a 100 year event;

(g) the structure above the basement carpark denies the storage of flood waters on the site when compared with existing conditions. Although the increase in flood levels on downstream properties caused by this loss of flood storage will be small, the loss of such storage is contrary to good practice.

1. Mr Rehman's response to these concerns is that:

(a) Items (a) and (b) are not the outcome of proposed development. These are existing issues that would need to be addressed by the future occupants of the development,

(b) With regard to Item (e), only 66% of the Unit 4 courtyard is in high hazard area, whereas the remaining part of the Unit 4 courtyard and half of the Unit 3 courtyard is a transitional area from high to low hazard.

Planning

1. Mr Falson assessed the amended proposal in terms of the site context, its compatibility with the character of the area and amenity impacts due to the flooding issue. With regard to the amendments, he expressed some difficulties due to the level of detailing on the plans and the lack of reliable natural ground levels (NGL).

1. Following his consideration of the flood modelling results, he is concerned that the building needs to be raised in the order of 0.9 - 1m to provide adequate clearance and safety to persons and property. Consequently this causes some adverse impacts particularly along the western elevation, namely:

• The elevated building now has a significant section of the basement protruding more than 1m above the NGL, which in not in accord with s 4.3.2.5 (iii) of the DCP. This is likely to contribute to adverse visual impacts.
• The main pedestrian walkway is at the elevated level and setback about 1m from the neighbouring property to the west. This could introduce privacy impacts although the erection of a 1.8m high privacy screen could probably alleviate some of this concern.

1. In response to the compatibility with the character of the area, Mr Falson says that the proposal to extend the elevated building towards the creek and into the floodway is not an existing characteristic of the neighbourhood. Instead, most buildings in this neighbourhood have open backyards along the floodway that are predominantly clear of residential development. The flooding constraint necessitates the building excessively protruding above the NGL towards the creek and consequently he does not support the application because he does not consider it is compatible with the character of the local area as required by cl 16A of the SEPP.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view, I initially agree with Mr Falson that the level of detailing on the development application plan is minimal making detailed assessment more difficult in this flood liable environment.

1. Notwithstanding this, the flooding risk is the threshold issue. The Court has the benefit of the flood modelling results undertaken by Mr Rehman. Mr Bewsher, based on his understanding of the modelling assumptions including possible structural collapses in the upper catchment, generally accepted the resulting outcomes.

1. However the engineers differed in the application of the flood modelling outcomes to the subject site. In doing so, they referred to parts of the Floodplain Development Manual (FDM) they considered relevant. I note this because the FDM is mainly focussed on the broader strategic approach to floodplain risk management and has limitations in direct application to development application assessment. But in the absence of any current strategic flood planning, as is the case in the subject matter, the engineers have relied upon criterion they consider relevant and I accept this approach.

1. Considering the modelling results listed in paras 15 and 16, the site is significantly constrained by the flooding, particularly as about 91% of the site is inundated in the 1:100 year flood and about 40% of the rear of the site is in a high hazard floodway category. According to Appendix L of the FDM the following hydraulic categories apply:

Floodways; are those areas where a significant volume of water flows during floods and are often aligned with obvious natural channels. They are areas that, even if only partially blocked, would cause a significant increase in flood levels and/or a significant redistribution of flood flow, which may in turn adversely affect other areas. They are often, but not necessarily, areas with deeper flow or areas where higher velocities occur.

High hazard; possible danger to personal safety; evacuation by trucks difficult; able bodied adults would have difficulty in wading to safety; potential for significant structural damage to buildings.

1. I understand that the applicant is intent on obtaining approval for the four (4) units, which necessitates an extension of the structure along the lot and into the adjacent floodway. This design requirement also necessitates the building being elevated about 1.7m above the NGL towards the rear of the site together with a section overhanging the floodway by approximately 3.5m. Consequently the main pedestrian access to the units is via an elevated walkway of variable width (approx 1.5m - 2.5m) along the western elevation. I note that alternate stair and lift access is available from the basement car park.

1. For his consideration of the compatibility of the proposal with the character of the area, Mr Falson categorised the relevant area as being an eclectic group of buildings with predominant large back yards adjacent to the creek environment. In accepting that the proposed form of affordable housing is permissible he raised no particular objections to the streetscape presentation.

1. However, whilst accepting that the form of new development can change from the existing, nevertheless he is not satisfied with the impact along the side elevations to the neighbouring properties. In particular, he does not think that this elevated, extended building form towards the creek is compatible with the adjoining open back yards that adjoin the creek environs. The elevation of the walkway about 1.7m above NGL would be a significant foreign element in the neighbourhood and likely lead to adverse visual and noise impacts. Whilst he acknowledged that the provision of a privacy screen along the edge of the walkway could improve this situation, nevertheless it would still be a negative aspect of the proposal.

1. Insofar as the submissions regarding the compatibility of the development with the character of the area included reference to other cases, I accept that a primary reference is Project Venture Developments v Pittwater Council [2005] NSWLEC 191 wherein Roseth SC stated:

Planning principle: compatibility in the urban environment

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

• Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
• Is the proposal's appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

1. Insofar as reference was made to other merit appeals, I have applied the Project Venture planning principle on the basis of the evidence for this particular case, including the objections presented in this case and my observations at the view.

1. Applying this principle to the subject proposal, I do not consider its design response to the flooding constraint results in acceptable physical and amenity impacts on the neighbouring sites, particularly 6 Clarendon Street.

1. I agree with Mr Falson's assessment that the extent of the elevated building platform into the back yard area towards the creek is a significant foreign element in the visual catchment. The adverse visual and aural amenity impacts are likely in my assessment to increase due to the construction and use of the elevated walkway. Whilst it can be disguised to some extent by an acoustic barrier, any such barrier would be about 1.8m above the existing fence height, which I do not consider compatible with the existing, or future character.

1. In this regard I note that the associated landscape plan proposes various plantings adjacent to the common boundary fence. But the setback between the fence and any walkway handrail/ acoustic screen is about 1m. Accordingly I have serious reservations about how the proposed nine (9) Lagerstroemia indica (Crepe Myrtles) could ever be expected to reach their projected maturity of 6m within this 1m setback width. I do not consider the proposed landscaping will adequately mitigate the elevated bulk of the proposed building. In my assessment this is a negative aspect of the proposal.

1. An associated concern is that an attractive element of the neighbourhood is that the existing lots have ground level access to the rear yard area for open space use. Insofar as the proposal designates a rear strip of land 4m wide as common open space, together with the additional 4m wide drainage reserve, it seems that physical access to this land is not readily available or convenient. Because of the proposed planting in the 1m setback on the western side and the private courtyards on the eastern side, physical access at ground level is not available.

1. The alternative access could be via the end on the elevated walkway, which is not specifically documented on the plan. But this option would have obvious management and privacy issues considering the number of occupants and visitors potentially using the walkway to access the proposed communal open space within the floodway. In my assessment this is also a negative aspect of the proposal.

1. Aside from the access question to this open space area, I think it would also have reduced utility and amenity due to the presence of the elevated cantilevered section and exposed undercroft area where the privacy of users would be compromised. Also, it would likely require increased maintenance resources due to its liability for regular flooding as stated by Mr Bewsher, which I also consider is a negative aspect in this form of intensified residential development, partially within the high hazard floodway.

1. It also seems to me that the quality of the courtyards on the eastern side of the development will have reduced amenity because they require some 5 - 6 steps down to the ground level due to the finished floor levels of the units above the flood planning level. I also think that the amenity of all the courtyards is diminished due to their exposure to regular low hazard flooding. However the courtyards for Units 3 and 4 are exposed to high hazard flooding and based on the aforementioned definitions from the FDM, I consider this unacceptable. An inescapable feature of this regular flooding is the necessity for cleans ups as stated by Mr Bewsher, which places additional burdens and limitations so as to reduce the amenity for the occupiers of these units.

1. As noted, the flooding risk is the threshold issue in this matter as determined by the flood modelling produced for this appeal. For the assessment of the flood modelling results only limited evaluation criteria was presented to the Court. The main criterion is that from the FDM, Appendix L, as tendered in Ex 5. The only section tendered from the DCP and apparently considered relevant is s 3.7 dealing with "Drainage and On - Site Detention (OSD) Requirements". However I find this is of little assistance because it mainly deals with the design of "minor" drainage elements rather "major" elements such significant creek upgrading and flood mitigation strategies.

1. Another aspect arising from the flood modelling concerns the impact on neighbouring properties due to the proposed development. The engineers agree that the nearby properties 1 and 3 Amy Street will likely be subject to a maximum flood level increase of about 2 cm, which they accept is tolerable and I accept this position.

1. Apart from this, the engineers agree that there will be an increase of 30cm, which potentially impacts 169 and 169A Belmore Road. According to Mr Rehman this impact would arise due to the diversion of floodwaters between the fence and the development and therefore unlikely to cause any significant impacts on the neighbouring properties. Against this, Mr Bewsher says there is a real likelihood of unacceptable flooding on these properties arising from the extended location of the development, particularly Unit 4, into the floodway area. On balance, I accept Mr Bewsher's opinion that there is a real likelihood of adverse flooding impacts on the neighbouring properties.

1. In summary then, I do not consider this application merits approval. My assessment has taken into consideration whether the development is compatible with the character of the area, together with the provisions of the "Seniors Living Policy: Urban Design Guidelines for Infill Development". I have also considered the limited drainage/flooding policy details submitted along with the FDM provisions, which presents some relevant criteria for current practice drainage assessment.

1. I accept that the flood modelling has established the majority of the site is subject to flooding in the design 1:100 year event and almost half the site adjacent to the creek is in a high hazard floodway. Consequently, the building platform has been raised to safely clear the flooding. But from my consideration of the impacts of this raised structure in the backyard area, which introduces significant foreign elements as previously detailed into the neighbourhood, I am not satisfied that the elevated structure would result in a harmonious fit with the existing neighbourhood or that the occupants of the development would enjoy reasonable amenity. In this regard I rely on the opinion of Mr Falson, noting that his evidence was the only expert planning evidence presented.

1. A further issue that I consider is unacceptable concerns the flooding risk to persons and property where development is intensified either adjacent to or within parts of a high hazard floodway, as proposed. Whilst I accept that flood liable land should not be sterilised, nevertheless there are circumstances where intensification of development in closer proximity to a floodway does not represent good design practice as stated by Mr Bewsher whose evidence I rely upon. There may be exceptions particularly where there is some formalised drainage strategy to address the flooding risks. But that is not the case here and the evidence on the three flood mitigation options for the creek is just speculation because there is no adopted drainage strategy. Therefore I give this evidence little weight.

1. In the ultimate, I do not consider the proposed design and site planning adequately responds to the site constraints so as to achieve new dwellings with a high level of amenity, which respects the privacy and amenity of the subject neighbourhood. In my assessment it does not reasonably satisfy the relevant provisions of the SEPP (Affordable Rental Housing) and associated Seniors Living Policy, particularly the site planning and better practice design principles.

Court orders

1. The Court orders that:

1 The appeal is dismissed.

2 Development Consent to DA No 2011/DA - 449 for the demolition of the existing dwelling and construction of 4 dwellings under the provisions of the SEPP (Affordable Rental Housing) 2009 at 4 Clarendon Road, Peakhurst is refused.

3 The exhibits may be returned except for 1, 3, 5, A and E.

R Hussey

Commissioner of the Court

Decision last updated: 26 February 2014