Catalina Island Pty Limited v Pittwater Council

The unfolding of the proceedings 6The development application for what became the initial design of the proposal was lodged with Pittwater Council (the Council) on 3 January 2014. An appeal was filed with the Court against the Council's deemed refusal of the application after the expiry of the relevant statutory period of time. The appeal was commenced on 13 February. The application was subsequently refused by the Council on 27 March. 7At the appeal's first return date, the Acting Registrar set the matter down for a conciliation conference to be conducted pursuant to s 34 of the Land and Environment Court Act 1979. 8On 4 April, I conducted that conciliation conference onsite. Although the conciliation conference was unsuccessful, the process did resolve many of the outstanding issues that were of concern to the Council in a fashion capable of incorporation in amended plans. However, a fundamental difference remained between the Council and the applicant as to the acceptability of the proposal in light of the potential impacts on it of flooding in Careel Creek. 9As a consequence of all outstanding matters not being able to be resolved and thus forming the basis of an agreement pursuant to s 34(3), I terminated the conciliation conference. The parties agreed, pursuant to s 34(4)(b) that I proceed to hear and determine the matter. As a further consequence, I granted leave for the applicant to rely on amended plans reflecting the resolutions of various broader planning issues that were agreed upon during the course of the conciliation phase. The matter was set down for a subsequent hearing for two days on 16 and 17 June with the Council, in turn, been granted leave to rely on an Amended Statement of Facts and Contentions now to be limited, in essence, to various facets of what the Council considered to be the unacceptable flooding risks associated with the revised design. 10Although the parties were informed that the June hearing could commence onsite if this was necessary for some reason (for example, to hear evidence from objectors to the revised plans), this did not need to occur and the hearing took place in Court over the two allocated days. 11Although the broad planning issues were resolved by the amendments made to the original design that was subject of the conciliation conference, the resultant design, with respect to Units 1 through to 4 that are proposed to have a frontage to Bangally Way are now proposed to be single residential level Units located on top of a semi-basement garage and associated storeroom and laundry. There are proposed to be two pedestrian entrances from Bangally Way, one to serve Units 1 and 2 and the other to serve Units 3 and 4. Each of these four Units is proposed to have an internal staircase from the lower level to the upper level and each of the two pedestrian entrances is to lead to an entrance area where there will be a hydraulically operated lift providing access to the residential levels above.

The flooding issues 12The Council has carried out a flood study of the catchment of Careel Creek. The modelling that has been undertaken shows that, under current climatic conditions, the Bangally Way frontage of the site is affected during a 1:100 year flood (that is there is a 1% probability, in any year, that such a flood will occur). Again, under current climatic conditions, Bangally Way will be significantly inundated during a probable maximum flood (PMF) - the highest flood level predicted to occur under the most extreme predicted rainfall conditions in the Careel Creek catchment. When the calculations are taken out to allow for anticipated climate change impacts at the end of this century, the flooding, under each scenario, in Bangally Way is exacerbated. 13The final design, one which was still changing during the course of final hearings, proposes a floor level of the residential areas for each of Units 1 thought to 4 that will be sufficiently above the modelled PMF with the added allowance for climate change to satisfy the requirement to be regarded as a safe haven for residents to stay in place in the event that such PMF plus climate change flooding level were to be reached in Bangally Way. 14This is of importance in the proceedings because the confined nature of the Careel Creek catchment, as earlier described, means that if the rain were to fall at what is agreed is the exceptional and continuing intensity necessary to have the potential to generate a PMF level, it would only take a little over 20 minutes before the level of water in Bangally Way would start to spill over the high points in the driveways and access pathways serving Units 1 through to 4. 15Once that overtopping occurred, it is also agreed by the flooding experts, Ms Collier for the Council and Mr Marshall for the applicant, that the Council's modelling accurately reflects the fact that there would be only a matter of minutes after the overtopping of those high points before there were significant volumes of water in the garages and, although a further raising of the floor level of each of the laundry/storeroom/entrance areas of 175 mm was added by amendment to the plans between the first and second days of the hearing, a person in the garage at the time water commenced to flow into a garage would have only a few minutes (at most) to evacuate to safety before being no longer able to do so. 16Because this proposed development is to be categorised as housing for seniors or people with a disability, the Council's concerns (reflected in its flooding controls to which I will return in detail) pose more stringent flood safety requirements for such developments. These requirements are based on the premise that it is not unreasonable to assume that those who might occupy such developments (or at least some of the residents) are likely to be mobility impaired in some fashion. Ms Berglund, barrister for the applicant, did not contest the validity of this presumption. 17As a consequence, it is necessary to consider whether or not there is sufficient time and appropriate design precautions to permit a person or persons who might be in any or all of the garages of Units 1 through to 4 to retreat to the residential level and thus to a safe haven in the circumstances that there was a storm depositing rain in the Careel Creek catchment at a sufficient intensity to make it possible that a PMF event would occur across the Bangally Way frontage. 18If such evacuation is possible, it is then necessary to consider if it would be proper to approve the proposed development on this basis. 19For completeness, I should note that, under such PMF circumstances, there will also be nuisance flooding impacts along the Binburra Street frontage that is fronted by proposed Units 5 through to 8 but the Council accepts that there are no issues arising out of this that warrant refusal of the proposal or could contribute to the refusal of the proposal.

The expert flooding evidence 20Prior to the tendering and admission into evidence of what subsequently became the first joint flooding experts' report, Mr Stafford, barrister for the Council, objected to Mr Marshall, an engineer proposed by the applicant to give flooding evidence on its behalf, on the basis that Mr Marshall had not demonstrated appropriate qualifications and expertise to be permitted to do so. To address this issue, Ms Berglund called Mr Marshall to give evidence in response to this concern. His evidence as to his expertise and experience on flooding matters was sufficient to persuade Mr Stafford to withdraw the objection to him being qualified for this purpose. 21Following this small procedural excursion, Mr Marshall and Ms Collier, the flooding expert giving evidence on behalf of the Council, proceeded to give oral evidence and their initial joint report was tendered. 22As the continuing refinement and modification of the proposal evolved during the course of the hearing, Mr Marshall and Ms Collier were required to undertake two further joint conferences and produce two supplementary joint reports. The first of the supplementary joint reports was not able to be tendered as it was prepared electronically and proved unable to be transmitted in a fashion that permitted printing and tendering of a hard copy of it. However, the terms of the conclusions of this joint report were read onto the record from the computer screen displaying it. The absence of the second joint report did not give rise to any concern, as further modification to the proposal - resulting in the second supplementary joint report - overtook matters dealt with in the document that was not able to be printed. 23Before moving on from the giving of and general matters associated with the expert flooding evidence, I should make clear a general conclusion that I have reached with respect to it. Put simply and its highest, I found the evidence given by Mr Marshall to be of very little (if any) assistance to me in addressing the matters of contention in this area of expertise. 24In a number of areas, Mr Marshall was hesitant in responding to a question or did so in a fashion of such generality, unsupported by specific information, as to render the response of little utility. In a number of other areas, when asked to comment on detailed results of work undertaken by Ms Collier, his response was, in effect, that she had done the calculations; he accepted that she knew what she was talking about; and, therefore, he accepted the calculations. 25I did not detect any independent evaluative assessment by him of that material - merely an uncritical acceptance of it. Making that comment with respect to his evidence concerning Ms Collier's calculations should not, in any way, be taken as a criticism of her evidence; my conclusion with respect to her evidence is quite to the contrary. 26Ms Collier has impressive, current detailed experience and high academic qualifications in this area of expertise. She explained the calculational material that she had prepared cogently and comprehensively. Her material was detailed and relevant and was presented in a fashion that enabled the time critical analysis of potential flooding impacts to be followed with an appropriate degree of precision for consideration of matters relevant to the flooding issues in the appeal. 27The contrast between her evidence and that of Mr Marshall was stark. 28To the limited extent that it is necessary to do so (with respect, for example, to warning devices as later discussed) I am satisfied that I should prefer the evidence of Ms Collier to that given by Mr Marshall in any instance where there was a conflict between their evidence or a significant divergence in any approach taken to a particular facet of flooding related matters.

The proposed access lifts 29The Council called Mr Byrne, a person appropriately qualified and experienced to give evidence concerning construction and operation of lifts such as those that are proposed to service Units 1 and 2 or Units 3 and 4 as joint access facilities for each pair of residences. He gave evidence concerning the difficulties likely to arise from these lifts being proposed to be used as a reliable and safe method of egress from the car park/laundry area in the event of floodwaters entering the area to the height predicted by Ms Collier's initial modelling. Although these predicted water heights modestly lowered as a consequence of the ongoing tweaking of the design during the hearing, his basic theses remained unchallenged. 30In my assessment, the foundational propositions to be derived from his evidence remain unaltered (and were unchallenged by any evidence for the applicant) despite the modest inundation amelioration changes adopted overnight by the applicant between the first and second days of the hearing. The foundational propositions were these, as I understood the combined effect of his written and oral evidence:

• If any of the electrical circuitry necessary for operation of one of these lifts became water affected, there was a significant risk that the lift would be rendered inoperable;
• Even if all relevant electrical operating equipment were located above the lift rather than in the sump of the lift well, it would be difficult to waterproof all of the control mechanisms. Although it was theoretically possible to do so, as I understood his evidence, he was not aware of any instance where such a waterproofing regime had been implemented;
• Although the general industry default safety position was for a lift to lower, in a gradual controlled fashion, to the bottom of its ordinary travel path in the event of a failure of the operational systems (including a water contact induced system failure), there was no reason why a system of the nature here proposed could not be engineered so that the default system failure response was a gradual safe rising to the upper level. However, he noted that, if this were to occur, the lift would not be able to return to the lower level but would remain, inert, at the upper residential level. Thus, in the event of inundation induced failure with such a design, there would be one transit to the upper level available only;
• It would be possible, however, to separate the different electrical elements of the lift operation into separate circuits so that inundation water contact failure of one element would not automatically trip out remaining and otherwise potentially unaffected aspects of the lifts operation (although, as I understood it, this, too, was not normal industry practice) but he was not aware of the actual installation of any system designed and constructed in such a fashion.

The planning documents 31There are four potentially relevant documents forming the framework within which the issues in these proceedings require consideration. The first is, as earlier noted, State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004. This document, apart from its facultative provision making the proposed development permissible at this location, has no other work to do. The only mention of flooding, in Schedule 1 of the policy, has no application in the present circumstances. As a consequence, the provision in the policy that effects the overriding of any provision in any other environmental planning instrument (such as any relevant local environmental plan) has no functional work to do. 32The second tier documents, as it were, that are engaged are the Pittwater Local Environmental Plan 1993 and what is now to be the Pittwater Local Environmental Plan 2014 (gazetted at the end of May but not coming into effect until the end of June). 33Although there are no specifically relevant provisions in the 1993 Local Environmental Plan (there are relevant specific provisions in the new Plan), given my conclusion arising from consideration of the relevant provisions of the Development Control Plan set out later, there is no need to embark on any comparative analysis of the 1993 and 2014 Local Environmental Plans. The Council only raised, as I understood the position, the new Plan in reinforcement of the Council's primary basis for submissions - the matters arising from the Development Control Plan. 34The subsidiary, local planning controls that are relevant are to be found in the provisions of the Council's Development Control Plan. The primary matters are in Part B 3.21 of. This provision is entitled Flood Hazard - Flood Category 2 All Development except Dwelling Houses, Secondary Dwelling, Dual Occupancy and Multi-Unit Housing Development. This portion of the Development Control Plan contains three relevant elements. The first is the (desired) Outcomes and these are in the following terms:

• Protection of people. (S)
• Protection of the natural environment. (En)
• Protection of private and public infrastructure and assets. (S) 35The second is a general provision relating to all development carried out in areas that fall within this hazard category. It is the agreed position that Bangally Way falls within this category. This general provision has four subsidiary elements to it, one of which is relevant in these proceedings. The relevant element of the provision reads:
• To ensure the recommended flood evacuation strategy of 'shelter-in-place' it will need to be demonstrated that there is pedestrian access via a low flood hazard area to a 'safe haven' above 300mm below the level of the Probable Maximum Flood. 36The final relevant element of this portion of the Development Control Plan is one that applies to a limited range of types of development that the Council considers require additional precautionary consideration because of the nature of those who may be occupying those developments at any time. Developments such as is here proposed fall within the scope of this provision. The provision is in the following terms: Floor Levels - Special Flood Protection All floor levels within 'Special Flood Protection' developments (excluding balconies with open balustrades) shall be at or above or raised to the Probable Maximum Flood. Special Flood Protection development include Seniors Housing - SEPP (Housing for Seniors or People with a Disability) 2004, childcare facilities, hospitals, nursing homes and educational facilities. 37Part B3.23 Climate Change (Sea Level Rise and Increased Rainfall Volume) of the Development Control Plan also applies to require that account be taken of and appropriate allowance made for projected sea level rises as a result of climate change. 38Finally, because the provisions that give rise to the present dispute as to the acceptability of the proposed development in Bangally Way are contained in the Development Control Plan, in addition to the usual range of matters arising under s 79C(1) of the Environmental Planning and Assessment Act 1979, the provisions of s 79C(3A) are also relevant. 39As I have earlier noted, this development application was lodged with the Council in early 2014. Section 79C(3A) was inserted comparatively recently and took effect with respect to development applications lodged after the end of March 2013. This provision is a limited legislative response to soften, somewhat, the approach to be taken to the provisions of Development Control Plans where guidance on the appropriate consideration of such plans was given by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589. 40As a consequence, the position to be derived from Zhang that the provisions of a development control plan are to be the focal and starting point for consideration of a proposed development is now to be considered in light of this new provision, a provision in the following terms: (3A) Development control plansIf a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) ................., 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) ...................

Planning analysis 41It is conceded that the design of Units 1 though to 4 does not comply with the second, more development type specific, requirements of the Development Control Plan because the garage, laundry and storeroom areas and the shared entrance areas for the two pairs of Units will be inundated under some extreme rainfall events that cause flooding of Bangally Way. 42The agreed position from the flooding experts, not able to be determined with the mathematical precision of levels derived for a 1:100 year flood or for the PMF, is that inundation is likely to commence (taking at the position most favourable to the applicant within the range discussed) on a ~ 1:300 year flood event. In circumstances where such flood were to occur, the time available for a person in the lower level to evacuate to the upper level is comparatively short, being a matter of 3 to 5 minutes or so (depending on the physical capabilities and mental acuity of the person). 43In consideration of the planning controls, it is to be observed that my task is not to reach any determination as to whether or not, in some broad policy sense, the relevant provisions of the Development Control Plan are appropriate. To do so would be contrary to the determination by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338. 44My task is to consider whether these controls, in the particular circumstances of the case where it is admitted that there was non-compliance, do not need to be applied. The non-compliance of Units 1 to 4 of the proposal is clear - the floor level of the lower habitable level of each unit will commenced to be flooded at a flood of ~ 1:300 years - well short of the PMF (a 1:1000 year event [at least]) for Bangally Way. 45These controls in the Development Control Plan seeking flood freeboard for floor levels of development such as this represent the desired outcome (the set development standard in terms of s 79C(3A)(b) quoted above) the Council seeks to achieve. 46That assessment is to be undertaken through consideration, in my view, of two specific matters. These are: (a)Is, in general terms, the risk to a person located on the lower level of Units 1 through to 4 acceptable on the basis of the present design; or (b)If that risk based on the present design is unacceptable, are there further ameliorative measures of the nature discussed during the course of the proceedings that can be imposed by me (adopting an "amber light" approach) so as to lessen the risk and render it acceptable. 47Before turning to explain the reasons why I have concluded that each of these questions should be answered in the negative, I should observe that I enquired whether it was possible to incorporate sufficient subfloor detention storage beneath these four Units so that, if possible, diversion of overland flow from the driveways and the entrance pathways could obtain any significant additional time for evacuation from this lower level in the event that such overtopping flooding were to occur. I was advised that it would be possible to establish a maximum additional storage of the order of 100 m³ in such a fashion.

Satisfying section 79C(3A)(b)? 48It is, now, necessary to consider whether the various measures discussed during the course of the hearing and capable of being imposed by me pursuant to an "amber light" approach (taking a flexible attitude to the standards in the Development Control Plan as required by the Act) constitute a reasonable alternative solution, in total, that achieves the objects of the standards earlier discussed in the Development Control Plan. 49This, as I have earlier outlined, provides a further degree of flexibility in assessment than that which would ordinarily have flowed from the guidance given by the Court of Appeal in Zhang. It is, clearly, designed to be, in the words used by the Court of Appeal in a different context, facultative and beneficial (North Sydney Council v Michael Standley and Associates Pty Limited (1998) 97 LGERA 433). 50I have earlier outlined some of the range of matters that were discussed during the proceedings as being elements that, taken together, might suggest that sufficient time and certainty of escape to the upper living level could be provided to any person in any element of the lower level if there were to be floodwaters likely to or actually overtopping and flowing down the driveways and the access paths. It is clear, from the terms of the objectives of the Development Control Plan that this is the desired anthropocentric effect of the operational provisions, particularly that which relates to the special class of structures for which the additional level of special protection is required by the Development Control Plan. 51I turn, therefore, to each of the possible measures, the extent to which I might be able to have confidence in their utility and, in the light of such conclusions are as reached with respect to the various measures, whether overall I could be satisfied that, taken together, they can be regarded as meeting the more relaxed outcome that would flow from the s 79C(3A)(b) approach. 52First, although not part of my amber light assessment, it is appropriate to note that a marginal improvement is to be obtained by the overnight amendments to the plans between the first and second day of the hearing. Those amendments, as earlier noted, raised the floor level within the laundry and storeroom area as well as the entrance lobby by 175 mm. However, as I understood Ms Collier's calculations, this additional freeboard, although reducing the height of the floodwaters that will penetrate this area of raised floor, will not provide any additional escape time of functional utility. 53I now turn to consider, in more detail, the four additional measures potentially capable of being required as a condition of development consent. These are:

• Requiring additional, non-standard wiring and waterproofing to the proposed lift to ensure that there is the maximum possible period of time after inundation commences for the lift to remain operative and ensuring that, in the event of failure of lift circuitry, the lift would default to positioning at the upper level rather than lowering to the basement level;
• Incorporating the maximum 100 m³ sump capacity (the construction location being irrelevant for the purpose of this evaluation) to act as a diversion storage, until it, itself, was overtopped, for water flowing down the driveways and the access paths;
• Strengthening the doors to the access lobbies at the ends of the walkways to increase their resistance time to permitting floodwaters to enter the lobbies in the vicinity of the lifts. In this context, it would clearly be necessary to incorporate automatic self closing devices on these doors for this purpose; and
• Establishment of a visually intrusive and highly audible alarm system that would trigger when there was sufficient intensity of rain happening at the location in Bangally Way to alert the residents (and any visitors) who might be on the lower level that they should retreat to the upper, safe haven residential level.

Possible flood impact mitigation works on the lift 54I accept the evidence was given by Mr Byrne than non-standard electrical requirements were potentially capable of incorporation in the lift for each pair of units to decrease the probability of water penetration adversely impacting operation of the lift, at least in the very initial stages of inundation. However, it is necessary for a lift to have access and operational controls (not only generally but, especially, in a complex with the envisaged target population of this complex) at a level above floor to permit them to be operated by a person in a wheelchair. Further, on this aspect, whilst Mr Byrne considered that it was theoretically possible for such waterproofing of components to be undertaken, he was unaware of that occurring. There is certainly nothing in the material from the proposed lift supplier, material provided by the applicant to the Council in support of the application, that professes any expertise in the provision of lift operational equipment that would operate in such circumstances. I therefore have difficulty in giving any significant weight to this possible measure as there is no functional evidence, beyond the understandably equivocal response from Mr Byrne, in support of the possibility of achieving any outcomes that might provide any significant utility in the event of flooding actually occurring. 55Mr Byrne accepted as possible the proposition that either lift, if it were to fail, could default to the upper level. I understood his evidence, on that matter, to indicate that this was a less technically onerous outcome (albeit an unusual one). 56As a consequence, I accept that if there were to be a person in a wheelchair or two people in one of these lifts during an inundation caused operational failure, the lift design could acceptably be mandated to ensure that they were carried to the upper level and safety rather than lowering, in a controlled fashion, into the inundation occurring below. However, it is to be observed that, if this were to occur, it is a one-time voyage until after the lower level was pumped out after the floodwaters receded and a lift technician could effect whatever were the necessary repairs to provide operational reinstatement of the lift. 57Under such circumstances, there could be no subsequent trips of the affected lift after it had defaulted, safely, to the upper-level. The effect of this is that, if there were more than two non-wheelchair people requiring evacuation who were able to reach the lift before it failed, or more than a single wheelchair person in similar circumstances, any persons in addition to two upright individuals or a single wheelchair-bound individual would not be able to use the lift to reach the safe haven level. 58It is inappropriate to assume that any non-wheelchair person in a complex with this target demographic is going to be able to use the stairs to access the upper-level rather than requiring to use the lift. Indeed, given the target demographic of age and/or disability, it is not unreasonable to assume, for a complex that is intended to have a 100 year operational lifespan (this being Mr Marshall's evidence) will probably have, at least with some frequency during that lifespan, residents in these four units for whom using the lift would be the only functional method by which they could travel from the lower level to the upper level. 59As a consequence, with respect to the potential ameliorative and protective measures that might be provided by alterations to the lift, I cannot be satisfied that there is sufficient (if any) additional safety benefit to be achieved by granting development consent with the requirement that those measures be implemented.

The reinforced entrance doors 60The reality with respect to the proposition that reinforced entrance doors could provide any useful additional evacuation time is, in my view, purely illusory. The width of the flow path down the driveway will be the main source of water inundation. Nothing was suggested during the course of evidence that there would be any design of the garage doors to require them to act as a floodwater excluding barrier and I have no experience with or knowledge of such technology to enable me to contemplate it (even if it were to be appropriate - which it is not - for me to impose a requirement that was not the subject of evidence or submissions during the course of the proceedings). 61The basis upon which Mr Marshall and Ms Collier gave evidence was the assumption that there would be a comparatively (if at all) unimpeded flow of water down the driveway and into the lower level. This ingress path for the water will, clearly, be the major source of inundation of the lower level given the comparative width of the driveway and the garage door when compared to the width of the entrance path and the entrance point door. 62It would be, given the volumes demonstrated by Ms Collier's calculations, the position that reinforcing the doors to the entrance might provide a protection but, in my assessment of the volumes involved, this is likely to be measured in seconds rather than in minutes.

Detention sump capacity 63Given that Mr Marshall unreservedly and uncritically accepted Ms Collier's time/volume calculations for inflows into this area in the event of a PMF, an additional 100 m³ of storage would have no practical utility given that a volume tending toward 2,000 m³ would enter these semi-basement areas in the first 4 minutes or so of overtopping (the number I cite is approximate as Ms Collier's detailed calculations were conducted for Units 3 and 4 only). Although the risk of inundation arises at a significantly earlier flood event probability (~ 1:300 years) these volumetric considerations do not change. As a result, the volume of water that would need to be diverted to a detention sump to hold the first 4 minutes inflow would be of the order of 2,000 m³. 64The maximum potentially available, on the applicant's own submissions, is 100 m³. The amount of time potentially able to be bought for evacuation purposes by the incorporation of the potentially available capacity is, like the reinforced entrance doors, likely also to be measured in seconds and certainly not in minutes.

A rainfall duration/intensity alarm system 65A deal of time of the oral evidence given by Mr Marshall and Ms Collier was devoted, at my instigation, to the exploration of such a possible alarm. 66Ms Collier indicated that, to her knowledge, work was being undertaken on the possibility of a more general catchment based information gathering system that might underpin some form of alarm system. As I understood her evidence, the time delay likely to be involved in in the transmitting of data from a broad networked monitoring system to a central point to enable calculations to be made about the likely outcome of any particular rain event would, for a catchment such as that of Careel Creek, be likely to be longer than the time needed for the maximum effect of such a rainfall event to have actually incurred in the catchment. 67This position is of particular relevance given that the likely duration of a rain event of the intensity necessary to cause flooding in the vicinity of Bangally Way to a level that will overtop the highest points in the driveways and access paths is only a matter of a little more than 20 minutes. Ms Collier was also not aware of any functional alarm system that could be established on an individual location basis (such as at the proposed complex at Bangally Way) that could be used to trigger an appropriate audio/visual alarming outcome. 68She also expressed the view that, if such a system could be devised, the necessity to trigger it sufficiently early to provide 5 or more minutes evacuation time from the lower level (and this time allowance should be understood as being against her earlier evidence that she considered that up to 15 minutes should be allowed for a satisfactory lower level evacuation before the lower level became inundated) would mean that there would be a significant number of false alarms during periods of non flood causing, shorter, intense rain events. She expressed the opinion that it was likely that, even if such an alarm could be devised (which she was not confident was possible) the extent and frequency of false alarms was likely to lead to the residents of the complex disabling the alarm. 69Mr Marshall, on the other hand, expressed the view that such a localised alarm was feasible. Indeed, he postulated that one could operate on some form of back to base fashion to a security company akin to the operation of centrally monitored intruder alarms. However, he did not have any actual experience of the design and operation of such a localised flood warning alarm, merely an appreciation that it was possible, in his view, for one to be installed. 70On this point, for the general reasons that I earlier indicated, I would prefer the evidence of Ms Collier compared to that of Mr Marshall. However, given that this is a particularly critical point as the possibility of a functional alarm is the only potential option to give any additional evacuation time for those who might be in the garage or adjacent spaces in the event of rain potentially leading to a flooding level that would cause inundation of these spaces, I should indicate that the evidence of Ms Collier on this point was, in my assessment, more cogent than that of Mr Marshall. In addition, despite the optimistic position adopted by Mr Marshall, neither witness had any actual experience of an alarm of the nature discussed. 71Further, Mr Marshall's suggestion that some form of back to base monitoring might be of use is an entirely fanciful proposition given the extremely short interval of time that would be likely to elapse before the water level rise trigger point for an alarm was reached and the overtopping, inundation causing water level arrived. 72Finally on this point, although merely a matter of observation arising from the flood mapping in evidence, the flooding of Careel Creek will render Barrenjoey Road to the south of the site impassable under circumstances when inundation of the lower level is likely to be caused (a level significantly lower than and with a higher probability of occurrence than a PMF event). This flooding isolation would render (even in the remotest possibility that there might be some utility in a back to base system - a possibility I reject, in any event for the timing reason earlier set out) such as system unable to give assistance in any functional fashion. 73I accept Ms Collier's reservations concerning the possibility (and if, contra her opinion, possible) utility of such an alarm system. Indeed, I hold, for my own part, the reservation that, even if such an alarm were not to be disabled by the residents, the frequency of false alarms might well create a "boy who cried wolf" position so that alarms would be ignored, even in circumstances where the alarm might, in reality, be warning of the impending potential catastrophe.

The acceptability of risk 74It is clear from this analysis of matters that could possibly be implemented in any ameliorative fashion that nothing of significance could be achieved with any confidence. The consequence of this is that, having regard to the effect of s 79C(3A)(b), there is no possibility that the objectives of the relevant protective provisions of the Development Control Plan, particularly the additional standard required for developments such as here proposed) can be regarded as being met through an alternative approach to that mandated in the standard in the Development Control Plan. The outcome of this analysis, therefore, means that neither the development standard can be satisfied in terms nor can it be regarded as satisfied by some combination of alternative measures.

Protection of property 75Having reached that conclusion with respect to the issue of safe evacuation on an anthropocentric basis, it is unnecessary to consider the additional objective of the relevant portion of the Development Control Plan dealing with the protection of property. Although not argued and, therefore, unnecessary for the expression of any concluded view, I have reservations that the position adopted by the Council on this point would necessarily pose an insuperable barrier to the proposed development. However, given the conclusion I have reached with respect to the anthropocentric safety issue, it is unnecessary for me to explore this matter further.

Final matters 76For completeness, there are two further matters that require to be dealt with. These are:

• The Council's consistency of application of the Development Control Plan; and
• The broader suggestion, not related to ameliorative measures that might be possible and the like, that application of the standard would be unreasonable. 77With respect to the consistency of application of these flooding provisions of the Development Control Plan, there is neither submission made nor any actual or implied evidence that there has been any inconsistency of application of the plan. Thus, as with the discussion by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492, there is no reason to consider permitting non-compliance in the circumstances of this application. 78With respect to the broad underlying question of whether or not there was any basis to set aside the standard as being, in itself, inherently unreasonable, I have earlier cited the decision of the Court of Appeal in Botany Bay City Council. This decision makes it entirely clear that it may be appropriate to permit departure from standards contained in a Development Control Plan based on the facts and circumstances of the particular case but that it is entirely inappropriate to embark on some abstract consideration of whether or not, as a general proposition, the standard should be regarded as inherently unreasonable or not.

Conclusion 79In the circumstances of this application, there is, in summary:

• Non-compliance with a safety founded Development Control Plan standard that is applicable to developments of a more vulnerable occupant character;
• There is no alternative design approach available that can achieve the underlying objective of the standard, namely to ensure risk free safe haven for occupants of or visitors to this proposed complex;
• There has been no evidence of any inconsistent approach to application of this standard by the Council; and
• Even if I were minded to do so, there is no permitted basis upon which I could embark on some form of critical analysis that might lead to me concluding that the development control was an unreasonable one in the broad.

Orders 80The orders of the Court, therefore, are: (1)The appeal is dismissed; (2)Development Application N0001/14 for construction of eight apartments pursuant to State Environmental Planning Policy (Housing for Seniors and Persons with a Disability) 2004 is determined by the refusal of development consent; and (3)The exhibits, other than Exhibit 4, are returned. Tim Moore Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2014