Calco Surveyors Pty Ltd v Gloucester Shire Council

APPLICANT Mr Calver, agent

LEGAL REPRESENTATIVES: RESPONDENT Mrs L. Finn, solicitor of Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11248 of 2006 Calco Surveyors Pty Ltd v Gloucester Shire Council

JUDGMENT 1 This is an extempore judgment for appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Gloucester Shire Council's refusal of a development application to erect a dwelling house on the site known No. 50 Thunderbolts Way, Gloucester. The site is Lot 1 DP 742109 and has an area of some 1.2 hectares.

2 The site is zoned under the Gloucester Local Environmental Plan 2000 7(d) - Environment Protection (Scenic) and dwelling houses are permissible where the lot was created before the effective date of 1969 as is the case with the subject land.

3 By way of background approvals have been granted for a development application for a dwelling house in 1988 and for the establishment of a Tourist Centre in 1991 and in 1993 a Tourist facility/residence was also approved. Previously on the subject site there was a dwelling burnt down in approximately 1991 having been on the site since the late 1940's.

4 The site is in a low lying flood affected area and in the vicinity of the site is the Gloucester River and the water course known as the Billabong. To the south of the site there exists extensive open space and parkland, sporting facilities and a caravan park on a lease with the owner of the land being Gloucester Shire Council. There are two dwelling houses on large parcels of land to the east.

5 In 2004 Gloucester Shire Council adopted the Gloucester Flood Plain Management Plan and this shows the subject site and a large area surrounding the site as in the high hazard, flood affected area. The Court has the benefit of the site inspection carried out this morning on the subject site where the hearing has taken place and also the Court-appointed experts report and verbal evidence provided by Mr Bill Patterson, a consultant engineer. A report was also tendered by Mr Harny Ibrahim, a consultant engineer on behalf of the applicant and he also attended the On-Site Hearing. 6 The Gloucester Flood Plain Management Plan contains a draft development control plan for flood plain management and this contains development guidelines for development of flood liable lands, and in particular development in high hazard floodway areas which are defined as "those areas of a flood plain where the depth and velocity of flood waters pose a threat to the safety of residents and would be rescuers.

7 The objectives of the Gloucester Flood Plain Management Plan include: a. to inform the community of the risk of flooding b. to minimise the risk to life and property as a result of flood events c. to minimise the financial burden to owners of flood liable land and to the general public. e. to ensure consistency when dealing with applications dealing with flood liable land

f. to reduce the risk to life of occupiers of flood prone land and the risk to those involved in rescue operations 8 It was submitted on behalf of the applicant that the forward to the Flood Plain Management Plan Study states that: The New South Wales Government's flood policy recognises flood liable land is a valuable resource and should not be sterilised by unnecessary precluding its development. The policy also requires that all development proposals be treated on their merits. The merit approach requires that flooding issues be considered along with other planning and environmental factors. 9 I note the study also states: The primary responsibility for local planning and land management lies with local councils. The New South Wales Flood Plain Management Manual has been prepared to assist council's with the development of management for flood-liable lands. The principle objective of the Flood Plain Management process is to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property and to reduce public and private losses resulting from floods. 10 The Gloucester Local Environmental Plan 2000 in cl 35 states: The council shall not consent to the carrying out of development on flood liable land, unless the council is satisfied that the development will not increase: a. the safety risk of the community or any residents of the land, b. the flow of water or increase the effect of the flood on the locality; c. adversely effect the water table in the locality, and unless the council has regard to its Flood Plain Management Plan and the provisions of the Flood Plain Management Plan Manual prepared by the NSW Government. 11 The Court is to be read in place of the council on an appeal to the Court.

12 Mr Calver submitted on behalf of the applicant that the erection of a dwelling house on the subject land satisfies the requirements of the land being above the 1% flood level that is 93.1 and that the proposed dwelling with a floor level some 750 mm above the 1% level can also be complied with. Furthermore he submits that emergency evacuation from the proposed dwelling can be satisfied given that the road in front of the subject property forms the access to higher ground for the evacuation of the caravan park and surrounding area past this property.

13 Mr Calver further submits that the only non-compliance is that the subject site is designated as high hazard flood area in the council Flood Plain Management Plan. However he states that the classification of the land was done on a broad brush basis and did not have regard to the individual sites. In particular he states that the subject site is higher than the immediately surrounding area. It is evident from this On-Site Hearing that the site is approximately half a metre above the caravan site. As such Mr Calver states that this site has more merit because of the individual surveys that have been carried out and it should be classified as low hazard not high hazard. 14 Mr Patterson, the Court-Appointed expert advised in his opinion even with more details in terms of the levels of the subject site he does not consider that a dwelling house should be constructed because of the risk to persons that is SES personnel and occupants of the proposed dwelling. In this regard he considers that the relevantly short warning time of rising waters of approximately two hours and the velocity of the waters and also with the confluence of the water courses that is the Billabong, the Avon River and the Gloucester River make the rising flood waters unpredictable and if this was to occur at night there would not be sufficient warning to allow for a perfect evacuation. The level of flood waters is unpredictable in Mr Patterson's opinion which is reflected in the fact that the PMP is some 6 m above the 1% flood level and this magnitude makes the area more hazardous.

15 In his written report Mr Paterson makes the following conclusion in his summary o Gloucester Council prepared a Flood Study, Floodplain Management Study and Floodplain Management Plan over the period 2002 to September 2003. The documents were on public exhibition over the period 19 December 2002 to 28 February 2003. o Council's Floodplain Management Committee, in its meeting of 14 May 2002, adopted a "high hazard" category for land between the Gloucester River and "The Billabong"; o The development site is flood liable; o The site would be flood free in a 5 % AEP flood; o In the 1 % AEP flood, flood depths across the building site will be small; The PMF flood depth at the site is some 6 metres; o The rate of rise of flood waters is such that conditions at the site could vary from flood free (in a 5% AEP flood) to inundated and requiring evacuation (in a 1 % AEP flood) in one to two hours; o A flood evacuation route is available along Thunderbolts Way; Flood warning available at the site is very short; o If residents choose to remain, as opposed to evacuation during a flood, and the flood level rises higher than predicted, a real risk to life will exist. o The suitability of the site for residential development relies on the perfect operation of the food warning and food evacuation procedures. Given the very short warning time available, the perfect operation of flood warning and flood evacuation is optimistic. 16 During the proceedings this morning there has been discussion about the review mechanism for the Flood Plain Management Plan. The State Government Policy envisages reviews of council's flood plain management plans and Mr Paterson has advised that it would be unlikely even given the higher level of the subject site for it to be re-classified out of the high hazard area because it would still be surrounded by a high hazard area and an island within an area generally classified as high hazard would be most unusual.

17 The Court advised that proceedings on individual development applications cannot and should not have the effect of re-classifying lands from high hazard to low hazard as the classification of land is adopted through the Flood Plain Management Plans Manual process and to alter a classification would require a review in terms of that process. The Court notes that where the consent authority makes decisions in accordance with the adopted Flood Plain Management Plan and Manual that council's are not liable for decision made in accordance with that plan under the Local Government Act.

18 The respondent submits that council has consistently refused development applications even for relatively minor alterations and additions where land is classified as 'high hazard' and a number of these applications where pointed out to the Court. 19 In my assessment I have had regard to the individual merits of the application and considered the statutory framework for the assessment of the application in terms of council's LEP and the Flood Plain Management Plan. While the RL of the subject site demonstrates higher ground than the surrounding area nonetheless I am not satisfied that a dwelling should be approved on the subject site. My reasons are that the subject site would represent a very small island in a much larger area of high hazard and the confluence of the three water courses in particular the Billabong and the Gloucester River and the velocity and direction of flow and the limited warning time for safe evacuation does not lead me to consider that a variation to allow a dwelling house on the subject site is appropriate. Council has consistently refused development applications in the high hazard flood area.

20 Furthermore I am not persuaded that the individual merits of the subject application would warrant approval of a dwelling on the subject land because it would have a precedential effect that other land holders of similarly classified flood affected lands may seek to invoke across the state. 21 In this regard I cite the judgment of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, a judgment of His Honour Lloyd J, where it provides authority for the relevance of precedent in assessing merit applications.

22 In assessing development applications in particular for residential dwellings or accommodation the Court is most cognisant that rescue operations are carried out by volunteers of the community and it is inappropriate to unnecessarily risk the lives of SES workers or occupants of residences.

23 By way of comment the Court inquired as to the status of the land ownership of the Caravan Park site that has period of three years left on its current lease from the council who owns the land. Clearly, an extension or renewing the lease to the caravan park is against the principles articulated in the council's Flood Plain Management Plan that classifies the caravan park as being located in the high hazard area.

24 Accordingly the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as No. 50 Thunderbolts Way, Gloucester is dismissed. 2. The development application submitted to Gloucester Shire Council and as amended is determined by the refusal of consent. 3. The exhibits with the exception of 4 and 5 are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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