Dougherty Bros Pty Ltd v Outline Planning Consultants Pty Ltd

Catchwords

(2011) 184 LGERA 123 Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337(1990) 170 CLR 1 Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197(2012) 194 LGERA 113 Bat Advocacy NSW v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59(2011) 180 LGERA 99 Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594(2006) 149 LGERA 41 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1(2010) 172 LGERA 25 Currey v Sutherland Shire Council [2003] NSWCA 300(2006) 143 LGERA 277 Lesnewski v Mosman Municipal Council [2005] NSWCA 99(2005) 138 LGERA 207 MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581(2013) 249 CLR 332 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 15462 LGRA 409 Mison v Randwick Municipal Council (1991) 23 NSWLR 73473 LGRA 349 Parramatta City Council v Hale (1982) 47 LGRA 319 Pittwater Council v Minister for Planning [2011] NSWLEC 162(2011) 184 LGERA 419 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191(2015) 213 LGERA 103 South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250

Judgment (46 paragraphs)

[1]

y Shire Council [2011] NSWLEC 250; (2011) 211 LGERA 1 Telstra Corporation Ltd v Hurstville City Council [2002] FCAFC 92; (2002) 118 FCR 198 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; (1999) 46 NSWLR 598 Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Dougherty Bros Pty Ltd (First Applicant) Kahuna No 1 Pty Ltd (Second Applicant) Outline Planning Consultants Pty Ltd (First Respondent) Yamba Residential Subdivision Pty Ltd (Second Respondent) Clarence Valley Council (Third Respondent) Joint Regional Planning Panel (Northern) (Fourth Respondent) Representation: COUNSEL: C Ireland (Applicants) Submitting appearance (First Respondent) P Tomasetti SC and A Hemmings (Second Respondent) Submitting appearance (Third Respondent) Submitting appearance (Fourth Respondent)

[2]

SOLICITORS: N J Papallo (Applicants) Pikes & Verekers (First & Second Respondents) Marsdens Law Group (Third Respondent) Department of Planning and Infrastructure (Fourth Respondent) File Number(s): 2016/00155533

[3]

Judicial review challenge to approval of subdivision

In these judicial review proceedings the Applicants challenge a determination of the Joint Regional Planning Panel (Northern) ("JRPP") to grant development consent to Yamba Residential Subdivision Pty Ltd the Second Respondent for a 161 lot subdivision in the West Yamba Urban Release Area ("WYURA") at 22 Carrs Drive Yamba on 24 July 2015. The JRPP was exercising, pursuant to s 23G(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act"), the functions of the Clarence Valley Council ("Council") as consent authority. The WYURA has a total area of 127.4ha. The Second Respondent's development consent relates to 32.74ha of land within the WYURA to the west of Carrs Drive Yamba. The Applicants are the owners of a substantial land area also within the WYURA to the east of Carrs Drive Yamba. The First, Third and Fourth Respondents filed submitting appearances.
The Second Respondent's development consent ("the DA") is for the staged development of the site to create 161 residential lots across three sub-stages, public roads and residue lots for conservation purposes. The development will involve the design and construction of proposed subdivision roads, including landscaping, services and stormwater drainage infrastructure, as well as external works including connection to services infrastructure and upgrading Carrs Drive. The DA also includes bulk earthworks and filling of land, associated tree removal, earthworks and landscaping and plantings on one of the component lots to offset the removal of an area of Endangered Ecological Community. Approximately 300,000m3 of fill will be required for the overall development.
There are now five grounds of appeal identified in the Amended Summons handed up on the first day of the hearing with one ground no longer pressed. The grounds assert numerous failures to comply with the EPA Act in determining to grant development consent to the Second Respondent.

[4]

Environmental Planning and Assessment Act

The EPA Act provides: 79C Evaluation (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 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 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), 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. … 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. … 80A Imposition of conditions (1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or … (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or … (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. …

[5]

Local Environmental Plan

The relevant environmental planning instrument is the Clarence Valley Local Environmental Plan 2011 ("LEP"). It is not necessary to refer to the land use tables and zoning provisions in the LEP. Clauses 6.3 and 7.3 provide: 6.3 Development control plan (1) The objective of this clause is to ensure that development on land in an urban release area occurs in a logical and cost-effective manner, in accordance with a staging plan and only after a development control plan that includes specific controls has been prepared for the land. (2) Development consent must not be granted for development on land in an urban release area unless a development control plan that provides for the matters specified in this clause has been prepared for the land. (3) A development control plan must provide for all of the following: (a) a staging plan for the timely and efficient release of urban land making provision for necessary infrastructure and sequencing, (b) an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists, (c) an overall landscaping strategy for the protection and enhancement of riparian areas, remnant vegetation, wildlife corridors and native flora and fauna habitats, including visually prominent locations, and detailed landscaping requirements for both the public and private domain, (d) a network of passive and active recreational areas, (e) stormwater and water quality management controls, (f) amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and impacts on adjoining agricultural land, and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected, (g) detailed urban design controls for significant development sites, (h) measures to encourage higher density living around transport, open space and service nodes, (i) measures to accommodate and control appropriate neighbourhood commercial uses, (j) suitably located public facilities and services, including provision for appropriate traffic management facilities and parking, (k) measures to conserve Aboriginal cultural heritage on the land. … (6) A development control plan for land identified as "West Yamba Urban Release Area" on the Urban Release Area Map must also provide for all of the following: (a) measures to ensure adequate setback from the overhead electricity lines located in the vicinity of Miles Street, (b) in relation to any proposed business centre: (i) details of the scale and location of the centre, and (ii) controls to ensure the centre is located on an accessible site in close proximity to the existing school in Carrs Drive, and (iii) controls to ensure the size of the centre does not compromise the commercial hierarchy of Yamba and will result in a commercial area of a size proportional to residential demands. … 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: (a) land that is shown as "Flood planning area" on the Flood Planning Map, and (b) other 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) is not likely to 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) is not likely to 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 in 2005 by the NSW Government, unless it is otherwise defined in this clause. 7.4 Floodplain risk management (1) The objectives of this clause are as follows: (a) in relation to development with particular evacuation or emergency response issues, to enable evacuation of land subject to flooding in events exceeding the flood planning level, (b) to protect the operational capacity of emergency response facilities and critical infrastructure during extreme flood events. (2) This clause applies to: (a) land between the flood planning area and the line indicating the level of the probable maximum flood as shown on the Flood Planning Map, and (b) land surrounded by the flood planning area, but does not apply to land subject to the discharge of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard. … (4) In this clause: probable maximum flood has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published in 2005 by the NSW Government. Note. The probable maximum flood is the largest flood that could conceivably occur at a particular location, usually estimated from probable maximum precipitation.

[6]

Clarence Valley Residential Zones Development Control Plan 2011

The Clarence Valley Residential Zones Development Control Plan 2011 ("RDCP") is a lengthy document comprising 25 parts over a total of 263 pages. The parts apply either generally to residential zone developments or to specific areas. Each part contains detailed provisions and several performance criteria and prescriptive controls. Parts D and X were raised by the Applicants in particular and extracts of these parts follow. Dictionary … Flood Storage Areas means those parts of the floodplain that are important for the temporary storage of floodwater or stormwater during a flood. … PART D FLOODPLAIN MANAGEMENT CONTROLS D1. What are the aims of the Floodplain Management Controls? This plan aims to:- … (d) Provide detailed controls for the assessment of applications lodged in accordance with the Environmental Planning and Assessment Act 1979 on land affected by potential floods. … D3. What Development Controls Apply? D3.1 Performance Criteria All development requiring Council consent must comply with the following performance criteria: … (c) The proposal should only be permitted where effective warning time and reliable access is available for evacuation from an area potentially affected by floods to an area free of risk from flooding. Evacuation should be consistent with any relevant flood evacuation strategy. (d) Development should not detrimentally increase the potential flood effects on other development or properties either individually or in combination with the cumulative impact of development that is likely to occur in the same floodplain. … (f) Procedures would be in place, if necessary, (such as warning systems, signage or evacuation drills) so that people are aware of the need to evacuate and relocate motor vehicles during a flood and are capable of identifying an appropriate evacuation route. … D3.2 Prescriptive Controls Schedules D3 and D4 outline the controls relevant to each of the floodplains to which this Plan applies. Compliance with the prescriptive controls as defined in Schedules D3 and D4 is deemed to comply with the performance criteria specified in Clause D3.1 unless, in Council's opinion, particular circumstances apply that require a variation in light of D3.1. Proposals seeking a variation to the prescriptive controls specified in Schedules D3 or D4 will need to be justified in terms of the performance criteria under D3.1. … D5. Are There Special Controls for Filling of Flood Liable Land? D5.1 Performance Criteria Development involving filling of flood liable land must comply with the following criteria: (a) The filling of flood liable land must not increase the flood risk on other land within the floodplain. (b) Filling and associated works must not have any unacceptable associated environmental impacts such as detrimental affects [sic] on the ecology of riparian corridors. D5.2 Prescriptive controls The following development controls apply to development involving filling on flood liable land. D5.2.1 The flood impact of the development to be considered to ensure that the development will not increase flood affects elsewhere, having regard to: (i) loss of flood storage; (ii) changes in flood levels and velocities caused by alterations to the flood conveyance; and (iii) the cumulative impact of multiple potential developments in the floodplain. An engineer's report may be required to address potential impacts. … D7. What information is Required with an Application for Development on Flood Liable Land? … D7.5 For large scale developments, or developments in critical situations, particularly where an existing catchment based flood study is not available, a flood study using a fully dynamic one or two dimensional computer model may be required. For smaller developments the existing flood study may be used if available and suitable (eg it contains sufficient local detail), or otherwise a flood study prepared in a manner consistent with the "Australian Rainfall and Runoff" publication, any relevant Council Drainage Design Code and the Floodplain Development Manual, will be required. From this study, the following information shall be submitted in plan form: (a) water surface contours (including the 100 year flood and PMF extents) (b) velocity vectors; (c) velocity and depth produce contours; (d) delineation of Flood Management Areas relevant to individual floodplains; … SCHEDULE D4 LOWER CLARENCE RIVER FLOODPLAIN, YAMBA FLOODPLAIN & OTHER FLOODPLAINS Prescriptive Controls (Refer to clause D3.2) … Floor & Pad Levels … 5 Habitable floor levels to be no lower than the 100 year flood level plus freeboard 6 Habitable floor levels to be no lower than the PMF level. Non-habitable floor levels to be no lower than the PMF level unless justified by a site specific assessment.

[7]

… Flood Effects 1 Engineer's report required to certify that the development will not increase flood effects elsewhere, having regard to: (i) loss of flood storage; (ii) changes in flood levels and velocities caused by alterations to the flood conveyancing; and (iii) the cumulative impact of multiple potential developments in the floodplain. 2 The flood impact of the development to be considered to ensure that the development will not increase flood effects elsewhere, having regard to: (i) loss of flood storage; (ii) changes in flood levels and velocities caused by alterations to the flood conveyancing; and (iii) the cumulative impact of multiple potential developments in the floodplain. An engineer's report may be required.

[8]

Evacuation 1 Reliable access for pedestrians or vehicles required during a 100 year flood to a publicly accessible location above the PMF. 2 Reliable access for pedestrians or vehicles is required from the building, commencing at a minimum level equal to the lowest habitable floor level to an area of refuge above the PMF level, or a minimum of 20% of the gross floor area of the dwelling to be above the PMF level. 3 The development is to be consistent with any relevant flood evacuation strategy, Flood Plan adopted by Council or similar plan. 4 The evacuation requirements of the development are to be considered. An engineer's report will be required if circumstances are possible where the evacuation of persons might not be achieved with the effective warning time. 5 Safe and orderly evacuation of the site (in any size flood) has been demonstrated in a regional evacuation capability assessment prepared to the satisfaction of Council and the SES. Where such an assessment has not been prepared, development will only be permitted where, in the opinion of Council, safe and orderly evacuation can occur (in any size flood). 6 Adequate flood warning is available to allow safe and orderly evacuation (in any size flood) without increased reliance upon the SES or other authorised emergency services personnel.

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… PART X URBAN RELEASE AREA CONTROLS

Part X of the RDCP deals specifically with urban release area controls. X6. Relationship with This DCP and other plans This Part of the DCP should also be read in conjunction with: • Parts A - D and Parts H - J in particular of the Clarence Valley Residential Zones DCP 2011 (CVRZDCP 2011); • Councils CVLEP 2011 in relation to controls for retail land-use; • Council Policies in particular NR Design Manuals, Bike Plan and Pedestrian access and Mobility Plans and Biodiversity Draft DCP. In the event of any inconsistency between this Part and any other part of CVRZDCP 2011 or any other plan or policy of Council, this part will prevail to the extent of the inconsistency. … X8. Compliance with Objectives and Controls in this Plan Clauses in this plan contain objectives and controls relating to various aspects of development. The Objectives enable Council and applicants to consider whether a particular proposal will achieve the development outcomes established for West Yamba. The Controls establish standards, which if met, mean that development should be consistent with the objectives. However, in some circumstances, strict compliance with the controls may not be necessary, or may be difficult to achieve because of the particular characteristics of a development site. In these situations, Council may grant consent to a proposal that does not comply with the Controls in this plan, providing the intent (i.e. the Objective/s) of the Controls is achieved. … SCHEDULE X1 - WEST YAMBA URBAN RELEASE AREA … 2. Staging and Servicing Background … The landowner group known as West Yamba Landowners Consortium which collectively own land parcels east of Carrs Drive has broadly indicated that the majority of its collective holdings would form part of an extensive Stage 1 development. A development application (DA) for the residential subdivision part Lot 1722, DP 1035524, 22 Carrs Drive Yamba into 161 residential lots was lodged on 20 October 2014. This DA was also accompanied by a site specific development control plan which indicates a 3 stage staging plan for the residential subdivision of part Lot 1722. This parcel in conjunction with the West Yamba Landowners Consortium holdings can form part of a large Stage 1 in a broad West Yamba staging plan. … Controls … C2. A Servicing Strategy to the satisfaction of the consent authority to be lodged prior to consent being granted for a DA to subdivide land within the WYURA. C3. The Servicing Strategy should address but not necessarily be limited to: (a) The provision of hydraulic, telecommunication and electricity services. (b) Proposed utilities networks and their relationship to adjacent properties, including links to adjacent properties. … 6. Natural and environmental hazards - Flood and Fill Management Background … Objectives: 01. Ensure that flood and drainage impacts are considered for the development of the entire WYURA and not just in relation to the development of individual land parcels within the WYURA. 02. Minimise flood and drainage impacts of the development in the WYURA on adjoining residential neighbourhoods and property including ensuring that there is no net increase in the number of existing dwellings whose habitable floor levels become inundated by the ultimate filling and development of the entire WYURA. 03. Ensure that the future development of WYURA is undertaken in accordance with the "Lower Clarence Flood Model Update 2013 - September 2013", adopted by Council in March 2014 or any subsequent model update that Council may adopt. 04. Ensure that any stage of the overall WYURA development is successfully integrated and does not prejudice or detrimentally impact overland flow path/s, existing watercourses and stormwater management network. 05. Ensure that Acid Sulphate Soil impacts are assessed and appropriately managed. Note: Clause C27 of this DCP and clause 7.1 Acid Sulphate Soils CVLEP 2011 must also be complied with. Controls: C1. The consent authority must not grant consent to the commencement of land fill or other earthworks associated therewith unless an Earthworks Management Plan (EMP) is prepared to ensure that level of finished lots are is at least at the level of the 1 in 100 year flood event, whilst also maintaining an effective drainage network, overland flow path/s and meeting other development standards of Council. … C3. A EMP must include the following: … (c) Staging Plans and detail of finished survey levels for fill. … (e) dredge location/s and proposed pipe routes to WYURA. … (h) Overland flow paths to reach local estuaries/waterways (including Oyster channel) and the URA drainage reserve/floodways. …

[10]

2005 Floodplain development manual

"Hazard" is defined in the Glossary of the 2005 Floodplain Development Manual as: A source of potential harm or a situation with a potential to cause loss. In relation to this manual the hazard is flooding which has the potential to cause damage to the community. Definitions of high and low hazard categories are provided in Appendix L

[11]

Chronology

The parties provided the following chronology which has been reduced to refer to key dates only as follows: 1. 18 March 2013 - council adopted the Lower Clarence Flood Model Update Study; 2. 17 June 2014 - flood report prepared by Paterson Consultants Pty Limited; 3. August 2014 - Paterson Additional Flood Information; 4. 15 October 2014 - Statement of Environmental Effects; 5. 20 October 2014 - Development Application lodged; 6. Precise date not known - public exhibition and notification of the development application in accordance with Part B of the Residential Zones DCP and 51 submissions were received during the exhibition period; 28 objections and 23 supporting; 7. 27 January 2015 - Dr G O'Loughlin independent assessment of the flood modelling of BMT; 8. June 2015 - BMT WBM amended West Yamba Flood Impact Assessment (Land West of Carrs Drive) Final Report; 9. 9 July 2015 - the Assessment Report prepared by Council's development planner; 10. 17 July 2015 - Council memorandum recommending changes to a number of draft conditions of development consent; 11. 21 July 2015 - Council adopts Draft Amendment to Council's Residential Zones DCP - Urban Release Area Controls (including West Yamba); 12. 24 July 2015 - Site Inspection by JRPP; and 13. 24 July 2015 - JRPP Meeting, verbal submissions at the Panel meeting and determination made to conditionally grant development consent to the development application.

[12]

Evidence

The Applicants tendered a bundle of documents as Exhibit A. The bundle contained the relevant planning instruments extracted above in par 6, development control plan extracted above in pars 7 and 8, the JRPP Report, the documents before the JRPP at the time of its decision, the DA documents, the Flood Plain Development Manual and the Northern Rivers Development and Design Manual. The Applicants read the affidavit of Mr D Papallo (the Applicants' solicitor) in the proceedings. Annexed to the affidavit are two email chains between Lisa Foley Project Assistant at the Regional Panels Secretariat and Carmen Landers Development Planner at Clarence Valley Council dating from March to June 2015. The Second Respondent tendered several A1 and A2 sized site plans as Exhibit 1 and the minutes of a council meeting from 21 July 2015 as Exhibit 2. The Urban Release Area map was tendered as Exhibit 3 and the chronology prepared by the Second Respondent and incorporating the chronology prepared by the Applicants was tendered as Exhibit 4.
A summary of the key documents referred to by the parties follows.

[13]

Paterson Report June 2014

Paterson Consultants Pty Ltd prepared a Flood Impact Investigations Report for the Second Respondent dated June 2014 ("Paterson Report"). The report outlines the Clarence Valley Council policies relevant to flooding, including cl 7.3 of the LEP and Part D of the RDCP. The existing flood behaviour of the site is discussed using the Council's model of the Clarence River to identify the mode of flooding on the site. The report records that the flood model indicated that the flow velocities over the subject site during both the rise and fall of the design flood are low with values of approximately 0.1m/s. The report states that it can be expected that filling of the development site would cause a slight reduction in flood levels east of Carrs Drive, a slightly more rapid rise of the flood waters in the initial part of the flood, and a slightly slower fall in the flood levels. In conclusion the report states: In general it is concluded that the proposed development, including the drainage swales north of the development, will have no measureable effect on flooding on the property surrounding the development site. … The flood model indicates that the proposed development will not significantly impact on flood levels, nor will it significantly impact on flood drainage times of land sited east of Carr's Drive. The flood model results are viewed as indicating the efficiency of the drainage swale as proposed in maintaining existing drainage times during the recession of flood waters.

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Paterson Additional Flood Information August 2014

After the Paterson Report was prepared in June 2014, a meeting of the Development Management Unit between the Second Respondent and the Council raised a number of issues relating to flooding. Paterson Consultants prepared an additional report to provide additional information to address the issues raised by the Council. Parts are extracted as follows: 1. INTRODUCTION … The issues raised by Clarence Valley Council relate to: • design flood levels at the site, • the existing drainage beneath Carrs Drive flowing onto the site from east of Carrs Drive, • conformance with Council's existing floodplain management plans for the area. … 6. ST JAMES PRIMARY SCHOOL St James Primary School is located immediately north east of the Carrs Drive Miles Street intersection. The ALS ground data available indicates the ground levels on the driveway into the school reaches RL 2.5 m AHD, Given that the school was built, presumably, using a design flood level for the 100 year ARI flood of RL 2.35 m AHD, it would appear that the floor level of the school is above RL 2.5 m AHD. Figures 7 and 9 of the Paterson "Flood Impact Investigations Report" show the predicted change in once in 100 year ARI flood levels at the school site lies between 0 and 5 mm. Changes in flood level of this magnitude are simply not measurable. Accordingly, it is concluded that the school will not be affected by the proposed development in the design once in 100 year event. The school will receive a better level of flood access given that Carrs Drive is to be raised to the once in 20 year ARI flood level (RL 1.7 m AHD) or above. 7. CONFORMANCE WITH FLOODPLAIN RISK MANAGEMENT PLANS ... Carrs Drive is to be raised RL 1.7 metres AHD (minimum) which provides access to Yamba Road for up to the 20 year ARI event. For flood events ranging between the once in 20 year ARI and once in 100 year ARI floods, the most likely community response will be to remain on-site and reliance on the specified flood planning levels to provide protection to the future buildings. In flood events ranging between the designed 20 year ARI flood and the PMF, an emergency management decision will need to be made whether to allow residents to "remain in place" or to evacuate. Evacuation would involve large parts of Yamba (not only lot 1722) and this development of lot 1722 is not seen as creating a significant additional evacuation effort.

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Statement of Environmental Effects October 2014 (extracts)

Relevant extracts from the SEE are as follows. 2.4.2 Drainage, Filling of Land The Proposal responds to the drainage and flooding issues affecting the site and surrounding lands. It is proposed that the Project Site is to be filled to between RL 2.1m AHD (1:100 year flood level) to a minimum of RL 2.7m AHD, the latter being the underside of each building site on each allotment, with a residential floor level or Flood Planning level of RL 3.0m AHD applying. Approximately 300,000 cubic metres (or approximately 480,000 tonnes) of fill will be required for the overall development, with approximately 100,000 cubic metres (or about 160,000 tonnes) of fill required for each stage. This extent of imported fill will take the level of the land within the subdivision to well above the current estimated 1:100 year flood level as currently set by Council, with some sections filled to well in excess of the design PMF flood event. Carrs Drive is to be raised to RL 1.7 m AHD, in accordance with Clarence Valley Council requirements. RL1.7mAHD is Council's 1 in 20 year flood level for Carrs Drive, to facilitate emergency access to the area during times of flooding. The depth of filling will vary across the site. Generally the fill depths will exceed 1.6 m of imported clean fill. In so doing, the proposal will achieve the following flood planning objectives: • To minimise the flood risk to life and property. • To allow development that is compatible with the land's flood hazard and to account for climate change • To avoid significant adverse impacts on flood behaviour and the environment. … 3.2.11 Flooding All of the site is affected by the 1:100 year flood event. It comprises land that is shown as "Flood planning area" on Clarence Valley Council's LEP Flood Planning Map. The Yamba Floodplain Risk Management Study determined that the majority of Yamba, including West Yamba, would be classified as flood storage, that is, an area subject to the temporary storage of floodwaters, and not a floodway. Revised flood mapping of the site in 2014 reveals a 1:100 year flood level for the site of RL 2.1m AHD-refer also to Annexure 3 for further details. The flood mapping shows that, like for the site, most of the surrounding developed urban area of Yamba is also flood prone. … Part 7 of the LEP contains addition [sic] provisions, addressed in the accompanying Table 5.4 Table 5.4: Additional Local Provisions of the LEP and the Project Relevant part of DCP Assessment … 7.3 Flood Planning development (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, The proposal complies with this control. (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, Flood modelling by Paterson Consulting shows that the objectives of clause 7.3(1)(a)-(c) can be satisfied. (c) to avoid significant adverse impacts on flood behaviour and the environment. Flood modelling by Paterson Consulting shows that (3)(a)-(e) can be satisfied. The flood-prone nature of the West Yamba Urban Release Area has been extensively flood modelled prior to its release for residential development. The social and economic costs of developing this locality for development were factored in prior to rezoning this area for large-scale urban development. (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: Flood modelling by Paterson Consulting shows that that the proposed development will not significantly impact on flood levels, nor will it significantly impact on flood drainage times of land sited east of Carrs Drive. (a) is compatible with the flood hazard of the land, and The flood modelling indicates that there will be a slight reduction in flood levels for the properties east of Carr's Drive as a result of the proposed development. The modelling indicates that flooding arising from the filling of the site will create slightly more rapid rise of the flood waters in the initial part of the flood. However, the rise of the flood level affected is below the proposed level of Carr's Drive. Moreover, given that the time of travel of floodwaters from Grafton to Yamba is greater than 24 hours, and thus a long period of flood warning is available, the slight change in the rise of the flood level is viewed as "not significant". This feature will also enable the safe evacuation of persons form this area during any peak flood event. (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and It also shows the efficiency of the drainage swale as proposed in maintaining existing drainage times during the recession of flood waters. (c) incorporates appropriate measures to manage risk to life from flood, and No environmental or related impacts are likely to arise form filling and developing the site. (d) is not likely to 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. …

[16]

… 5.2.6 Section 79C(1)(b): Likely Environmental Impacts ... Flooding Impacts: … • The upgrading of Carrs Drive will enable flood evacuation during flood events up to and including the 1:20 year flood event. This is a Council requirement. Within the site, all lands are to be filled above the 1:100 year flood level, with sections well above even the PMF flood level- a flood refuge for those who may not have evacuated in accordance with the existing flood evacuation strategy currently applicable to Yamba township. • Flood engineers Paterson Consulting Pty Ltd conclude that for flood events ranging between the 1:20 year floods and 1:100 year floods, the most likely community response will be to remain on-site and reliance on the specified flood planning levels to provide protection to the future buildings. In flood events ranging between the design 20 year ARI flood and the PMF, an emergency management decision will need to be made whether to allow residents to "remain in place" or to evacuate. Evacuation would involve large parts of Yamba (not only Lot 1722) and thus the development of Lot 1722 is not seen as creating any significant additional evacuation effort. On this issue, it is also noteworthy that there is already in place a flood evacuation plan for Yamba, jointly prepared by and approved by Council and the SES, dated July 2012. This plan would have equal applicability to the site as to the currently developed sections of West Yamba, to the north of the site, including lands to the north of Yamba Road, as well as to Yamba township as a whole.

[17]

West Yamba Flood Impact Assessment (Land west of Carrs Drive) Final Report June 2015 ("BMT WBM Report")

The BMT WBM Report documents the outcomes of the flood impact assessment undertaken by BMT WBM Pty Ltd for Siteplus Pty Ltd on behalf of the Second Respondent. The report was prepared to assess the existing riverine and tidal surge flood risk and potential changes to the flood risk resulting from the development of the whole of the WYURA. The baseline assessment of flood behaviour (prior to any development or filling works) showed that the subject site is inundated by the 1:20 and 1:100 year ARI flood events but not the 1:5 year ARI flood event. Peak flood elevations across the WYURA were approximately 1.7m AHD and 2.1m AHD for the 1:20 and 1:100 year ARI flood events respectively.
The assessment of flood impacts after the proposed development and filling works is based on a developed case model in which the entire WYURA is filled above the 1:100 year ARI flood level with the exception of the main roads through the site. The report includes several maps that show the peak level of inundation in different flood events. Due to the proposed filling, figure 5-1 shows that the areas of the site which were formerly inundated in the 1:20 year ARI flood scenario are now dry. Figure 5-2 shows that for the 1:100 year ARI flood event, areas that were previously inundated are now also dry. There will be increased flood levels along the northern perimeter of the site. These increases in peak flood level are up to 0.12m but are generally confined to within 100m of the site perimeter and do not impact on existing dwellings. Figure 5-3 of the report models the 1:100 year ARI riverine flood only scenario and shows that the majority of the WYURA was wet but now dry, with the exception an area of the offset lot to the far east of the site. The riverine-only event was modelled as impact maps are generally based on the maximum flood level, which at West Yamba results from storm surges, meaning that any potential impacts from the riverine flood component are 'masked'. Figure 5-4 models the 1:100 year ARI flood incident in the scenario that the development site only has been filled (not the entire WYURA). That figure shows that the entirety of the site which was previously inundated is now dry.
Extracts of the report follow: 6 Conclusions and Recommendations 6.1 Conclusions The following key conclusions are drawn from this study: • The site and WYURA are shown to be inundated by the 20 and 100 year ARI events but not the 5 year ARI event under baseline (existing) conditions. • Peak flood elevations at West Yamba area approximately 1.7mAHD and 2.1mAHD for the 20 and 100 year ARI events respectively. • Peak baseline inundation levels at West Yamba are lower (typically by 0.4m) than corresponding levels on the northern side of Yamba Road. This is due to the elevated Yamba Road constraining overtopping. • Peak design flood levels at West Yamba occur as a result of storm surge (as opposed to riverine / catchment flooding) based on Council's adopted design scenarios. • Mitigation of the WYURA relies principally on a large floodway located outside of the site area. • No notable flood level impacts are predicted for the 5 and 20 year ARI events. • The mitigated 100 year ARI event shows some impacts (increases in peak flood level) greater than 0.03m limited to the perimeter of the WYURA. These are not predicted to affect existing dwellings or other receptors within the tolerances shown. • No flood level impacts to dwellings are predicted for a 100 year ARI riverine only flood, ie a flood with no total/storm surge component. Peak level increases were observed along the channel between Deering Street and Yamba Road as a result of additional conveyance of floodwater by the floodway. • Modelling of the site only, ie without the remainder of the WYURA, shows no significant impacts on peak flood levels. 6.2 Recommendations (1) The design of the proposed floodway should be refined and reassessed at the detailed design stage following any proposed modifications. If design events and their underlying assumptions, such as allowances for storm surge, are updated then the development should be assessed with the updated design events. (2) Local stormwater features such as culverts under the main internal roads should be determined based on sizing for local stormwater events. During storm surge and / or riverine flood events the roads convey floodwater and sizing of local drainage culverts will not have a significant effect on regional flood behaviour. (3) The PMF (Probable Maximum Flood) event has not been included in this assessment. Interrogation of Council's flood model indicates that peak PMF levels are in the order of 3.7mAHD. This would inundate the West Yamba site and the wider area apart from Yamba Hill. A Flood Emergency Management Plan should therefore be prepared including a safe evacuation plan and / or provision of an area of safe refuge above the PMF level.

[18]

The Council's Assessment Report 9 July 2015

Extracts of the Council's Assessment Report ("Assessment Report") of 9 July 2015 follow, including the table below containing a list of all relevant s 79C(1)(a) matters: • State Environmental Planning Policy No 14 - Coastal Wetlands • State Environmental Planning Policy No 55 - Remediation of Land • State Environmental Planning Policy No 62 - Sustainable Aquaculture • State Environmental Planning Policy No 71 - Coastal Protection List of All Relevant s 79C(1)(a) Matters • Clarence Valley Local Environmental Plan 2011 • Development Control Plan for Development in Residential Zones • Development Control Plan for Development in Environmental Protection, Recreation and Special Use Zones • Clarence Estuary Management Plan • NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast,

[19]

… SECTION 79C EVALUATION FOR SUB2014/0016 Lot 51 DP 861895, Lot 1722 DP 1035524 and Lot 8 DP 1062514 22 Carrs Drive YAMBA NSW 2464 Proposal: 161 Lot Residential Subdivision (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: … Clarence Valley Local Environmental Plan 2011 … Clause 6.3 Development Control Plan Clause 6.3 of the LEP requires the preparation of development control plan (DCP) for development on land within an urban release area. The objective of the clause is to ensure that development on land in the WYURA occurs in a logical and cost effective manner. The matters to be considered under Clause 6.3 are as follows: (3) A development control plan must provide for all of the following: (a) a staging plan for the timely and efficient release of urban land making provision for necessary infrastructure and sequencing, (b) an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists, (c) an overall landscaping strategy for the protection and enhancement of riparian areas, remnant vegetation, wildlife corridors and native flora and fauna habitats, including visually prominent locations, and detailed landscaping requirements for both the public and private domain, (d) a network of passive and active recreational areas, (e) stormwater and water quality management controls, (f) amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and impacts on adjoining agricultural land, and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected, (g) detailed urban design controls for significant development sites, (h) measures to encourage higher density living around transport, open space and service nodes, (i) measures to accommodate and control appropriate neighbourhood commercial uses, (j) suitably located public facilities and services, including provision for appropriate traffic management facilities and parking, (k) measures to conserve Aboriginal cultural heritage on the land. Furthermore, Clause 6.3(7) requires that a DCP for the WYURA must also provide for the following: (a) measures to ensure adequate setback from the overhead electricity lines located in the vicinity of Miles Street, (b) in relation to any proposed business centre: (i) details of the scale and location of the centre, and (ii) controls to ensure the centre is located on an accessible site in close proximity to the existing school in Carrs Drive, and (iii) controls to ensure the size of the centre does not compromise the commercial hierarchy of Yamba and will result in a commercial area of a size proportional to residential demands. Comment The applicant prepared a DCP for the development site as part of the application, however this was unacceptable in its current format. Due to section 74C(2) of the Environmental Planning and Assessment Act 1979 (herein referred to as the Act) the DCP would have to either: • form an amendment to Council's existing "Clarence Valley Residential Zones Development Control Plan 2011" (CVRZDCP 2011) in the correct format (eg a new Part/chapter to existing DCP); or, • be proposed as a stand alone DCP for the land addressing a range of other factors or alternatively call up provisions of the existing DCP and be accompanied by a corresponding amendment to remove land from the existing DCP. In the case of a stand alone DCP for the land being prepared, it would need to incorporate other parts of the existing Residential Zones DCP. Of the two alternatives, an amendment to incorporate Urban Release Area controls into the existing DCP was preferred to minimise the number of potential stand alone DCP's [sic] and to ensure coordination of key planning matters such as infrastructure provision, drainage, filling and traffic management. A report to Council (Item No 13.094/15) recommending adoption of the Draft DCP is to be considered at the July 2015 Council Meeting. The Draft DCP incorporates information provided with the application and where information has not been provided, suitable conditions have been placed within the Draft Schedule to ensure compliance with the provisions of the DCP. Therefore, it is considered that the development has met the provisions of Clause 6.3 of the LEP. A copy of the Draft DCP (as reported to Council's Meeting 21 July 2015) is contained within the attachments. … Clause 7.3 Flood Planning Detailed flood modelling has been undertaken by BMT WBM Pty Ltd and as stated above that consultant is responsible for developing the "Lower Clarence Flood Model Update 2013" and previous flood modelling. They are also the flood modelling consultant for other WYURA developers. The report concluded that: • The site and WYURA are shown to be inundated by the 20 and 100 year ARI events but not the 5 year ARI event under baseline (existing) conditions. • Peak flood elevations at West Yamba are approximately 1.7m AHD and 2.1m AHD for the 20 and 100 year ARI events respectively. • Peak baseline inundation levels at West Yamba area lower (typically by 0.4m) than corresponding levels of the northern side of the Yamba Road. This is due to the elevated Yamba Road constraining overtopping. • Peak design flood levels at West Yamba occur as a result of storm surge (as opposed to riverine/catchment flooding) based on Council's adopted design scenarios. • Mitigation of the WYURA relies principally on a large floodway located outside of the site area. • No notable flood level impacts are predicted for the 5 and 20 year ARI events. • The mitigated 100 year ARI event shows some impacts (increases in peak flood level) greater than 0.03m limited to the perimeter of the WYURA. These are not predicted to affect existing dwellings or other receptors within the tolerance shown. • No flood level impacts to dwellings are predicted for a 100 year ARI riverine only flood, ie a flood with no tidal/storm surge component. Peak level increases were observed along the channel between Deering Street and Yamba Road as a result of additional conveyance of floodwater by the floodway. • Modelling of the site only, ie without the remainder of the WYURA, shows no significant impacts on peak flood levels. In consideration of the above, it can be concluded that the modelling demonstrated that the proposed development provides flood and drainage systems for the WYURA and the development, mitigating the impact on surrounding property and infrastructure due to the development. Therefore, the proposed development is not inconsistent with the objectives of Clause 7.3 of the LEP. … Residential Zones DCP … Part D Floodplain Management Controls The proposed development is not inconsistent with the controls as set out within Part D of the DCP. As discussed in detail in other sections of this report a detailed Flood Impact Assessment was undertaken by BMT WBM Pty Ltd and the flood modelling demonstrated that the proposed development provides flood and drainage systems for the WYURA and the development, mitigating the impact on surrounding property and infrastructure due to the development. … (i) any submissions made in accordance with this Act or the regulations, The proposed development was advertised and notified in accordance with the provisions of Part B of the Residential Zones DCP. Fifty one (51) submissions were received during the exhibition period; 23 in support and 28 objections. The issues raised in the submissions are discussed below: … 7. Flood modelling Concerns were raised within the one of the submissions regarding the submitted Flood Report. Comment The initial flood modelling provided with the application relied on differing assumptions and criteria to the "Lower Clarence Flood Model Update 2013 Report" by Council's consultants. Thus, the modelling reports were reviewed by an independent expert, Dr G O'Loughlin who identified issues that required resolution. Further modelling was undertaken by BMT WBM Pty Ltd that have addressed the issues identified by the independent consultant and those raised within the objections. The amended flood report has satisfied the concerns in regard to this development. In summary, the amended report has demonstrated that the filling of the proposed development does not impact on any existing property or infrastructure in the vicinity of the development. …

[20]

Council memorandum dated 17 July 2015

On 17 July 2015 Council's development planner sent a memorandum to the JRPP members as follows: Dear Panel Members, Please be advised that an amendment to the Schedule of Conditions for the abovementioned Development Application has been undertaken to rectify minor errors and further clarify staging of development. The amendments are as follows: … Condition 37 Flood levels have been amended to reflect Flood Impact Assessment by BMT WBM Pty Ltd. …

[21]

Minutes of Council meeting held 21 July 2015 (Exhibit 2).

At this meeting the Council adopted the Draft DCP (also called Part X). SUMMARY This report brings back to Council the outcomes of the recent public exhibition of a draft amendment to Council's Residential Zones Development Control Plan which are intended to insert general urban release area provisions into the DCP as well as introducing specific DCP controls for the West Yamba Urban Release Area. It recommends that Council adopt the proposed amendment to the Residential Zones Development Control Plan with a minor amendment only. … 3. Flood & Fill Management One submission noted that the draft DCP amendment did not acknowledge the West Yamba Flood Impact Assessment prepared by BMT WBM, dated December, 2014 which was submitted by Johnson [sic] Enterprises with the West Yamba landowners Group draft controls given that this assessment refined the 2013 hydraulic model with a higher resolution terrain model. That submission also indicated that the adopted 2013 model might be updated/amended in the not too distant future for a reduced storm surge component which would significantly affect the 20 year and 100 year ARI flood events. It further questioned whether the objectives should include a conditional statement that recognizes a possible future adopted study that creates lower 20 year and 100 year flood events, given that these levels directly impact on Flood Planning levels. Comment There is not mention of the consortia's comprehensive URA - wide flood modelling/assessment work undertaken prior to preparation of a draft DCP amendment due mainly to the consortiums [sic] desire to not have other parties benefiting from work/intellectual property that those parties had not financially contributed to at that time. Draft Objective 6.03 of Schedule X1 could be amended to read as follows: 03. Ensure that the future development WYURA is undertaken in accordance with the "Lower Clarence Flood Model Update 2013 - September 2013", adopted by Council in March 2014 or any subsequent model update that Council may adopt. …

[22]

JRPP file

Attached to the Assessment Report and provided to the JRPP were the following documents: 1. 29 plans of the site prepared by Siteplus dated 24 September 2014; 2. Part X of the RDCP; 3. Preliminary Contamination Assessment and attachments prepared by Environmental Engineering Solutions dated April 2015; 4. Aboriginal Heritage Information Management System searches conducted by the NSW Office of Environment and Heritage at the request of Council's development planner dated 8 July 2015; 5. Staging site plan prepared by Siteplus 7 July 2014; 6. Office of Water's General Terms of Approval for the works dated 28 October 2014; 7. Traffic Impact Assessment for Carrs Drive West Yamba prepared by Bitzios Consulting on 5 June 2015; 8. BMT WBM Report; 9. Submissions received by Council; 10. In total 51 submissions were received, 28 objecting and 23 supporting the Second Respondent's DA. Amongst the submissions received was an objection from Mr Johnston of Johnston Enterprises Australia Pty Ltd in which he outlined the statutory framework for the development and raised issues with respect to flooding. Mr Johnston objected to the proposal on a number of grounds, including that the designed road works on Carrs Drive would lead to the creation of flood impacts through the elevation of the road, location and design of swales and culverts and lead to the continued remoteness of the site from the WYURA development generally. The appendix to that objection is a document prepared by A Fletcher & Associates Pty Ltd Land and Engineering Surveyors and Development Consultants. The document outlines concerns with respect to the proposed development including with respect to drainage of land to the east of Carrs Drive and the lack of modelling of the cumulative filling of the other residentially zoned lots in the WYURA. 11. Email from the JRPP Regional Secretariat to the JRPP members dated 26 June 2015 advising that the DA had been referred to the JRPP; 12. Plans of the site prepared by Bothamley and Donohue Pty Ltd and Siteplus dated September 2014; 13. Draft Planning Agreement between Council and the Second Respondent and Rex Phillip Tory; 14. Music-Link Report; 15. Response to Development Management Unit Meeting Minutes 29 July 2014 by Outline Planning Consultants Pty Ltd (the First Respondent) dated 26 September 2014 attaching the meeting record of Council's Development Management Unit dated 2 July 2013; 16. Development Control Plan prepared for Yamba Residential Subdivision Pty Limited by Outline Planning Consultants October 2014; 17. DA and attachments submitted 16 October 2014; 18. SEE dated October 2014 and annexures; 19. Public and landholder notification documents dated 8 July 2015; and 20. Memorandum from Council's development planner to the JRPP members dated 17 July 2015 advising of amendments to the schedule of conditions.

[23]

Other information before the JRPP

In addition to the documents listed in par 23, the JRPP also had a site visit on 24 July 2015. Verbal submissions were made at the JRPP meeting on 24 July 2015 prior to its determination from Council staff, including Carmen Landers (the development planner), Cheryl Sisson (the development services co-ordinator), Ian Dodd (development engineer), Renan Sultan (development engineer), Des Schroder (Director, Planning and Environment) and speakers for and against the development.

[24]

JRPP Notice of Determination 24 July 2015

The JRPP issued its determination and statement of reasons approving the Second Respondent's DA on 24 July 2015. Extracts from the JRPP's report follow, including certain draft conditions of particular relevance in these proceedings: Determination and statement of reasons 2014NTH019 Clarence Valley SUB2014/0016 [at 22 Carrs Drive Yamba] as described in Schedule 1. Date of determination: 24 July 2015 Decision: The panel determined to approve the development application as described in Schedule 1 pursuant to section 80 of the Environmental Planning and Assessment Act 1979. Panel consideration: The panel considered: the matters listed at item 6, the material listed at item 7 and the material presented at meetings and the matters observed at site inspections listed at item 8 in Schedule 1. Reasons for the panel decision: The development does not conflict with the requirements of the following SEPP's [sic] - 55 & 62 The panel adopted the assessment of those matters in the Council Assessment Report. The principal reason for the panel decision was that the proposed development will have a positive outcome for the area through increased employment opportunities during construction works and once the subdivision is completed, positive economic benefits will arise from the construction of individual dwellings. Other reasons for the panel decision were: 1) The clearing of EEC's [sic] will be offset through compensatory plantings together with the combining of all the E3 Environmental Management and E2 Environmental Conservation zones into one allotment with no dwelling entitlement and protected in perpetuity; 2) Detailed flood modelling has been undertaken demonstrating that the proposed development provides flood and drainage systems for the WYURA and the development, mitigating the impact on surrounding property and infrastructure; 3) The developer be liable to pay the full cost of construction of a rising main to the sewerage treatment plant unless other parties in the development of West Yamba can negotiate cost sharing arrangements; and 4) Upgrade works/contributions to the Yamba road network as a result of the increase in traffic have been appropriately conditioned. Conditions: The development application was approved subject to the conditions in Appendix A of the council Assessment Report as amended by Council's Memorandum of 17 July and as further amended at the meeting. Approved conditions are in Schedule B. SCHEDULE 1 … 6 Relevant mandatory considerations • State Environmental Planning Policy No 14 - Coastal Wetlands • State Environmental Planning Policy No 55 - Remediation of Land • State Environmental Planning Policy No 62 - Sustainable Aquaculture • State Environmental Planning Policy No 71 - Coast Protection • Clarence Valley Local Environmental Plan 2011 • Development Control Plan for Development in Residential Zones • Development Control Plan for Development in Environmental Protection, Recreation and Special Use Zones • Clarence Estuary Management Plan • NSW Coastal Policy 1997: A sustainable Future for the New South Wales Coast • The likely impacts of the development, including environmental impacts on the natural and built environment and social and economic impacts in the locality. • The suitability of the site for the development. • Any submissions made in accordance with the EPA Act or EPA Regulation. • The public interest. 7. Material considered by the panel: Council Assessment Report Dated: 9 July 2015 Council Memorandum dated 17 July 2015 Council Meeting Minutes of 21 July 2015 Written submissions during public exhibition: 51 (28 objecting and 23 supporting) Verbal submission at the panel meeting: Council Staff: - Carmen Landers, Development Planner; Cheryl Sisson, Development Services Coordinator; Ian Dodd, Development Engineer; Renan Soltan, Development Engineer; Des Schroder, Director, Planning & Environment. Support- Nil; Against- Norman Johnston, on behalf of West Yamba Consortia; On behalf of the applicant-Gary Peacock, outline Planning Consultants. Meetings and site inspections by the panel: Site Visit on 24 July 2015. … 10. Draft conditions: Attached to council assessment report as amended by Council's Memorandum of 17 July 2015 and further amended at the meeting. SCHEDULE 2 Draft Advices and Conditions of Consent for SUB 2014/0016 Advices … 10. The Earthworks Management Plan for each and every stage must include an initial site inspection report. This report should include; a Inspection and verification of an appropriate preparation of the foundation for placement of fill, including the provision of surface drainage arrangements and a geotechnical assessment of factors that can influence the site. This is to be provided by a competent Geotechnical Authority. b Certification that the land created by the development will be suitable for its intended purpose (eg residential, commercial or industrial buildings) including any parts of the land that will be left in its natural state or modified by the development. c Identify any problem areas on or adjacent to the development land (eg potential land slip areas, hanging swamps, very high water tables, salt affected land, highly eroded sites etc) and advise if engineering solutions, acceptable to Council, are available to enable structures to be built on the affected parts of the land. … Conditions of development consent imposed by JRPP 1. The development being completed in conformity with the Environmental Planning & Assessment Act 1979, the Regulations thereunder, the Building Code of Australia (BCA) and being generally in accordance with the following: • Plan numbered 14140.DA1.P01 dated 29 June 2015 Revision E drawn by Siteplus; • The Statement of Environmental Effects prepared by Outline Planning Consultants Pty Ltd on behalf of Yamba Residential Subdivision Pty Ltd and Mr Rex Tory dated 15 October 2014 as modified by Outline Planning Consultants Pty Ltd advice to Council dated 19 June 2015; and • Plans numbered 14140.DA.C01 - C29 (29 Sheets) dated 29 June 2015 Revision E drawn by Siteplus … 16. A servicing strategy or a Developer Servicing Plan (DSP) must be completed by the applicant before urban development can be connected to the upgraded Yamba Sewerage Treatment Plant. The DSP must consider the total contributing catchment from the West Yamba Urban Release Area and the capacity of the existing sewerage reticulation system. The DSP, the design reticulation system and proposed connection point must be approved by Council. … 28. Prior to the issue of any civil Construction Certificate engineering calculations must be provided which clearly indicate the capacity of table/swale drains, the maximum flow velocities and their resistance to scour. Where table/swale drains are used they must be designed to minimise velocity of flow to that necessary to achieve draining of the table/swale minimising ponding and must be treated to minimise scour. Table/Swale drains within the road reservation must be designed to protect the road pavement form infiltration of ponded water. Batters on table/swale drains must be suitable for mowing with a maximum grade of 1v in 4h. … Stormwater Drainage and Flooding 36. All stormwater falling on the property is to be collected within the property and discharged in accordance with the relevant parts of the applicable Clarence Valley Council Development Control Plans and NRDC. A Stormwater Management Plan (SWMP) that demonstrates NorBe must be prepared in accordance with NRDC. The SWMP must consider any adjacent property or infrastructure affected by the development. Design details for the drainage system and point of discharge must be submitted for approval by Council and/or accredited private certifier prior to issue of the Civil Construction Certificate for each and every stage. The SWMP must include a specific management plan for any WSUD systems. Construction and operational phases must be considered. All inter-allotment and Council owned stormwater drainage systems on private property must be located within drainage easements. 37. The property is flood affected. All works are to minimise the adverse effects of flooding in accordance with the relevant parts of the Council Development Control Plans and NRDC. The "Lower Clarence Flood Model Update 2013" was adopted by Council Resolution 13.043/14 on 18 March 2014. The 1% Annual Exceedence Probability (AEP) water level in the vicinity of the site is RL 2.1 m AHD and the Extreme Flood Level is RL 3.7 m AHD. Development on the site must be undertaken in compliance with the flood plain management controls listed in the Council DCP for the relevant land use zone. 38. A drainage easement is required over the whole of Lot 8 DP1062514, burdening Lot 8 DP1062514 in favour of Clarence Valley Council. An easement is to be created to provide for conveyance of interallotment drainage through the subject land. The easements shall be provided for as follows: a. Where there is no Council infrastructure contributing to the drainage scheme the easements shall be in favour of the properties requiring the benefit and not the Council. b. Where there is water draining off roads, Council land or Council drainage infrastructure in the upstream drainage system then the easement must benefit Council only. This easement must be an easement in gross. c. Where there is water draining off roads, Council land or Council drainage infrastructure in the upstream drainage system and there are properties draining directly to the drainage system then the easement must benefit Council and these properties. The right to release, vary or modify the easement to be assigned to Clarence Valley Council where Council has a benefit. 39. The developer shall construct the proposed 2 x 3600mm x 650mm reinforced concrete box culvert's [sic] for the West Yamba Urban Release Area flood and drainage system across Carrs Drive, as part of the Stage 1 works, at the developers [sic] cost. Transitional and/or temporary works may be required for the existing section of Carrs Drive. This condition should be read in conjunction with Condition 40 Voluntary Planning Agreement Alternative. … Earthworks 46. Detailed plans of earthworks including an Earthworks Management Plan must be submitted to Council or accredited private certifier for assessment and approval prior to the issue of a Civil Construction Certificate. The earthworks Management Plan is to be prepared in accordance with Council's guidelines. The guidelines are listed in the Advices section of this Notice. …

[25]

Framing the JRPP's decision

The parties made conflicting submissions on what the Court should consider as informing the JRPP's decision. The Applicants submitted that the JRPP expressly adopted the Assessment Report as the JRPP Notice of Determination records that "[t]he panel adopted the assessment of those matters in the Council Assessment Report". Consequently this document provides clear evidence of what considerations were before the JRPP and what it can be inferred to have taken into account per Telstra Corporation Ltd v Hurstville City Council [2002] FCAFC 92; (2002) 118 FCR 198 at [50] (Sundberg and Finklestein JJ). The Applicants also submitted that an inference may properly be drawn that the Assessment Report reflects the matters considered by the JRPP relying on MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581; (2006) 149 LGERA 59 at [49]. That citation of authority does not support the Applicants' case. If anything MCC Energy at [49] supports the Second Respondent by inference. Justice Jagot did not accept that the adoption of the relevant report by the delegate of the council was by inference the sole basis for a decision. The recommendation of the report referred to other matters such as s 79C which the decision maker must also consider. The case highlights the necessity to closely consider the material before a decision maker.
The Second Respondent submitted that the JRPP is not required by the EPA Act or EPA Regulation to give reasons beyond cl 100(1)(c) of the EPA Regulation in relation to the imposition of conditions. Such reasons were provided by the JRPP. As the Second Respondent submitted the documentary record in its entirety must be considered in addition to the Notice of Determination with reasons published by the JRPP and the Assessment Report.

[26]

Onus of proof in judicial review proceedings

As the moving party the Applicants bear the onus of proof of establishing a breach of the EPA Act on the balance of probabilities in these proceedings. This onus may be discharged "by reference to the documentary material evidencing the decision making process if that material is sufficient to allow the Court to draw the inference" that the JRPP did not comply with the statute per Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 at [69]. Mechanisms were available to the Applicants to meet the onus beyond the documentary materials, such as administering interrogatories or service of an order for the giving of a statement of reasons pursuant to r 59.9(2) of the Uniform Civil Procedure Rules 2005 (NSW). The Applicants submitted it was unnecessary to avail themselves of such mechanisms because the JRPP provided written reasons in its Notice of Determination dated 24 July 2015.

[27]

The limits of judicial review

I must record at the outset difficulty in considering much of the Applicants' case as presented. On numerous occasions merit submissions were made which are beyond the scope of judicial review proceedings, see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (Brennan J) and Alexander v Yass Valley Council [2011] NSWLEC 148; (2011) 184 LGERA 123 at [114].
The Applicants' counsel made very detailed criticisms about specific aspects of the technical material in the evidence such as the flood impact assessment reports (of Paterson and BMT WBM) but not in a way that enabled the context for that detail to be assessed. That led to the Second Respondent taking the Court more comprehensively through the same reports and other material before the JRPP in order to provide the necessary context. This resulted in extensive evidence about technical issues related to flood impact assessment being before the Court much of it extracted in the evidence section above. The nature of that evidence was more suited to a merits appeal. It was also necessary to consider the statutory context in considerable detail, as also reflected in the extensive extracts of the RDCP in particular above in pars 7 and 8.
As identified in Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [58] it is not permissible in judicial review proceedings to compile a list of matters that in a party's view should have been better considered by a decision maker and allege a failure to consider these as mandatory relevant considerations. The statutory context informs the determination of what is a mandatory relevant consideration. An alleged failure referred to several times by the Applicants was an absence of modelling of the flood impacts of stages of filling across the WYURA on the Applicants' land, the land east of Carrs Drive. Quite how the second Respondent's experts could be expected to know what that staging might be in the future given that it is knowledge peculiar to the Applicants was not clear to the Court. In any event, as part of the assessment process and following submissions from objectors including a surveyor writing on behalf of the Applicants stating the modelling of filling only the Second Respondent's land in the 2014 Paterson Report was inadequate, the Council required further flood modelling. The 2015 BMT WBM Report modelled filling of the whole of the WYURA. Both reports were before the JRPP. No further criticism on the basis of inadequate modelling of stages of filling is now available in the context of judicial review proceedings as that is a submission which goes to the merits of the JRPP decision and the adequacy of the modelling undertaken by the Second Respondent in support of the DA. That is beyond the permissible scope of these judicial review proceedings.

[28]

Ground 1 failure to consider cl 7.3(3) Clarence Valley LEP 2011

Ground 1 as pleaded is set out below. Ground 1 1 Clause 7.3(3) of the Clarence Valley Local Environmental Plan 2011 (LEP) applies to the Land as the Land is in both in [sic] the "Flood Planning Area" on the Flood Planning Map and is at or below the flood planning level. 2 Clause 7.3(3) of the LEP provides that 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) is not likely to 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) is not likely to 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. 3 None of these matters were considered by the Fourth Respondent, or in the alternative, (a) - (e) inclusive all of these matters were not considered. 4 There was a complete failure to consider clause 7.3(3) of the LEP as it was not addressed in the Assessment Report prepared by Council dated 9 July 2015, and was not otherwise before the Fourth Respondent. 5 The Consent is as a result vitiated by a failure to consider clause 7.3(3) and the matters (a)-(e) in it contrary to s79C(1 )(a)(i) of the EP & A Act, which made a consideration of clause 7.3(3) a mandatory relevant consideration. 6 In the alternative, the Consent is vitiated by jurisdictional error as it was granted contrary to clause 7.3(3) of the LEP and in the absence of jurisdiction due to the failure of the Fourth Respondent to satisfy itself of all the matters required by clause 7.3(3) (a)-(e). Particulars The Assessment Report prepared by Council dated 9 July 2015 considers the Objectives of clause 7.3, but not the specific matters of which the consent authority was required to satisfy itself in clause 7.3(3).
Clause 7.3 is set out above in par 6 and is also set out in par 2 of Ground 1 of the summons extracted above in par 32. The SEE and the Assessment Report include references to cl 7.3(3) as identified above in pars 15 and 20.

[29]

Applicants' submissions

Clause 7.3(3) is not referred to at all in the Assessment Report. The Assessment Report failed to direct the JRPP to the requirement to form the mandatory states of satisfaction in cl 7.3(3). There is absolutely no evidence that the states of satisfaction required to be formed were in fact formed by the JRPP, including in the conditions of consent. The only reference to cl 7.3(3) on one page in the SEE does not deal with all the listed matters, and does not support an inference that the relevant states of satisfaction were formed. Clause 7.3(3) creates a jurisdictional fact of a particular subjective kind per Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [83]-[88].
In issue is whether the subjective states of satisfaction existed or were made by the JRPP, or not, on the evidence before the Court per Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; (2006) 149 LGERA 41at [42]. The documents before the JRPP as at 24 July 2015 disclose no trace of the formation of any of these five states of satisfaction. Neither does the statement of reasons. Neither does the consent. Secondly, the JRPP failed to consider cl 7.3 which was a mandatory relevant consideration under s 79C.
All that is considered in the Assessment Report is whether, based on the BMT WBM Report, the development was "inconsistent with the objectives of clause 7.3". Consideration of the objectives in cl 7.3(1) is not the same as the formation of the cl 7.3(3) states of satisfaction. This is a self-evident truth.
The BMT WBM Report also assumes filling to the same level of the adjoining land in the surrounding WYURA to the east (which includes the Applicants' land) and contains no analysis of the change in flood flows or velocities due to the filling of the subject land on the adjoining land and property in either its "developed" or undeveloped state. This is important as cl 7.3(3)(b) directs attention to impact on other development or properties. The level of fill to be stipulated on adjoining properties by any development consent applying to those properties after any appropriate assessment is unknown, the sequencing of development on adjoining developments is unknown and the extent to which the adjoining part of the WYURA may be developed (and filled) in part or in whole is unknown. It follows that the impact on flood heights, flood flows and velocities in relation to the adjoining property both as it exists and as it may be developed in part or in whole in the future are things that have not been considered. The earlier Paterson Report (dated June 2014), also before the JRPP did not assume any filling on the adjoining land to the east of the subject land in the WYURA. It similarly contained no assessment of the impact of the proposed development on the subject land on flood flows and velocities or flood storage, which is a matter that cl 7.3(3)(b) requires the formation of a state of satisfaction in relation to having regard to its reference to "flood affectation".

[30]

Second Respondent's submissions

The Applicants' approach fails to consider the evidence as a whole, has an eye attuned to error in reading the Assessment Report and is impermissible in judicial review proceedings. Contrary to the Applicants' submissions, the presumption of regularity does apply in this case, following authorities such as Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7, Western Stores Ltd v Orange City Council [1973] 1 NSWLR 19; (1973) 26 LGRA 17 and Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154; 62 LGRA 409. There is no distinction to be drawn when the presumption is to be applied to the formation of states of satisfaction, per NSW Aboriginal Land Council at 419 (McHugh JA). The JRPP had a job to do, for which they were being paid, and it can be assumed that in the ordinary course of business that they would at least read the material that was briefed to them. To assume this is not stretching the presumption of regularity to any great distance.

[31]

Ground 1 not proven by Applicants

I accept that cl 7.3(3) requires the JRPP to form the requisite state of satisfaction in relation to matters specified in sub-cll (a)-(e) (where relevant) before development consent can be granted. Many cases in this Court outline the principles relating to the onus of proof in judicial review proceedings in relation to a ground which alleges a failure to take into account a condition precedent where an applicant's case relies on documentary evidence. The Applicants focussed on Stein JA in Currey and Franklins Pty Ltd v Penrith City Council [1999] NSWCA 134, cases where the Court of Appeal held that the required state of satisfaction was not achieved. I recently considered similar authorities and submissions in relation to a similar provision in another local environmental plan in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191; (2015) 213 LGERA 103 at [87]-[89] where I held: 87 Hortis considered earlier decisions of Franklins Ltd v Penrith City Council [1999] NSWCA 134 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 in relation to the drawing of inferences where no specific reference was made to the mandatory precondition in the relevant LEP in the material before elected councillors. In Currey the Court of Appeal held that the inference of satisfaction should not be drawn where the officer's report to the council simply referred to the relevant clause without further discussion in the context of the particular DA. In Franklins also in the Court of Appeal none of the material before the elected councillors made reference to the relevant clause compliance with which was required before consent could be granted. That gave rise to a conclusion that the council failed to form the requisite opinion of satisfaction in the absence of any evidence to the contrary. In Hortis the Court of Appeal did not overturn the Land and Environment Court finding that the council had failed to form the necessary satisfaction about a required precondition to the grant of consent, namely that the council was satisfied the development would not have a detrimental effect on the foreshore scenic protection area. The absence of express reference to the effect of the relevant clause gave rise to the inference that the council did not consider the clause. These cases required a close consideration of what documents were before the elected councillors and what inferences if any could be drawn from any absence of reference to the effect of a clause which was a mandatory precondition to the granting of development consent. 88 A council's file is taken to be within the constructive knowledge of council officers unless evidence to the contrary is adduced, per Schroders v Shoalhaven City Council [1999] NSWLEC 251; (1999) 110 LGERA 130 at [7(c)] and [24]. In Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] the Court of Appeal in affirming the Court below also held that material in the possession of a council will generally be treated as being in the possession of individual councillors, citing Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 31. These principles have been applied since, for instance in Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2014] NSWLEC 182 at [109] and Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [126]. I disagree with the Applicant's assertion that the Court must look at the Assessment Report only and no other material on the Council's file. No authority supporting that approach has been provided. That assertion is contrary to the authorities referred to immediately above which require that evidence must be brought forward by a party which is asking for an inference to be drawn that the Council's file was not considered by a decision maker. No such evidence has been brought by the Applicant. 89 An example of where the negative inference was drawn is South East Forest Rescue. Preston CJ held there was a failure by an elected council to consider a clause which was a precondition to the exercise of the power to grant development consent. The collegiate body failed to take into consideration relevant zone objectives or form the required mental state of satisfaction that the development was consistent with those objectives. There was evidence that no councillor had read the council's file.

[32]

Ground 2 Condition 37 impermissibly defers flooding and flood management impacts of the proposed development.

Ground 2 of the amended summons provides: 7. Condition 37 of the Consent is void or voidable for uncertainty, and amounts to the impermissible deferral of proper assessment of flooding and flood management impacts of the proposed development, contrary to ss80 and 80A of the EP & A Act and is beyond the Fourth Respondent's power to impose conditions conferred by s 80A., including in that it requires development on the site to be undertaken in compliance with the flood plain management controls listed in "the Council DCP in the relevant land use zone". Particulars Part D of the Residential Zones DCP provides flood plain management controls that if applied to the development the subject of the Consent may result in significant change to the development approved by the Consent, including the controls in Part D3.1 of that DCP. 8. Condition 37 is inseverable from the Consent, and defers proper assessment of flooding and flood management impacts of the proposed development. 9. The Consent is invalid by reason of the invalidity of Condition 37 and its deferral of this matter.
Condition 37 of the consent provides as follows: The property is flood affected. All works are to minimise the adverse effects of flooding in accordance with the relevant parts of the Council Development Control Plans and NRDC. The "Lower Clarence Flood Model Update 2013" was adopted by Council Resolution 13.043/14 on 18 March 2014. The 1% Annual Exceedance Probability (AEP) water level in the vicinity of the site is RL 2.1 m AHD the Extreme Flood Level is RL 3.7 mAHD. Development on the site must be undertaken in compliance with the flood management controls listed in the Council DCP for the relevant land use zone.
Extracts of the RDCP are set out above in pars 7 and 8 including parts of Part D Floodplain Management Controls D1, D3, D5, D7, Schedule D4 Prescriptive Controls and Part X Urban Release Area Controls.

[33]

Applicants' submissions

Condition 37 is fundamentally unsatisfactory and uncertain. It is invalid on two bases, first that it impermissibly defers flood assessment impacts and second that it is uncertain, leaving open the possibility for a significant change to the development. This is because Condition 37 requires compliance with a global set of unidentified floodplain management controls in the RDCP. Due to the flood prone nature of the land, and the importance of flood management issues to this subdivision, if found to be invalid Condition 37 is inseverable from the consent.
Condition 37 is the deferral of consideration or assessment of the flood management impacts or the proper assessment of flooding and flood management impacts of the proposed development. In order for the Court to make the inference that there has been impermissible deferral it is necessary to look at the surrounding material that was before the JRPP. The JRPP failed to consider whether the development could be undertaken in compliance with the floodplain management controls in the RDCP. As in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 flood impact assessment was too important to defer for later consideration (at [95]).
Condition 37 is impermissibly uncertain as the requirement to comply with the flood management controls which are many in number may give rise to significant changes to the approved development in multiple respects. The evidence and documents before the JRPP show that the RDCP controls may not be able to be complied with without changes such as additional or different floodways and drainage swales, more or less filling entailing less or rearranged subdivision, provisions of wider or higher local roads for emergency evacuation and emergency evacuation plans, all matters that may significantly change the development. This is contrary to Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349.
Condition 37 requires compliance with the relevant parts of the RDCP and specifically refers to compliance with the flood management controls. Schedule D4 of Part D of the RDCP sets down two requirements for minimum habitable floor level under the control Floor and Pad Levels. The first requirement dictates that habitable floor levels be no lower than the 1:100 year ARI flood event, and the second that habitable floor levels be no lower than the PMF level. These two requirements are in conflict with each other and there is no criteria given for determining which criteria should be imposed. The DA meets the requirement in item 5 in that the proposed habitable flood levels are above the 1:100 year ARI flood event, but does not meet the requirement that the habitable floor levels be no lower than the PMF level. There is no evidence as to the assessment of the choice between the two requirements. There is no reason why the PMF floor level minimum does not apply to this development. This is an unresolved and fundamental ambiguity in the flood management controls to which Condition 37 requires compliance.

[34]

Second Respondent's submissions

The Applicants' submissions are an impermissible merits review of a decision lawfully made. The ground as framed is misconceived. The real issues for determination in relation to this ground of challenge are whether the imposition of Condition 37 by the JRPP is within the scope of power in ss 80 and 80A of the EPA Act and if not whether Condition 37 is severable from the consent. Condition 37 is clearly within the scope of the power and so the second issue does not arise.
The Applicants have failed to identify how compliance with Condition 37 could result in anything different or substantially different to that which was approved. If the Court found that Condition 37 is invalid, it can in any case be severed from the consent as it does not add anything.

[35]

Ground 2 not proven by Applicants

The first basis for alleged invalidity of Condition 37 is that it is said to show a failure to undertake adequate flood impact assessment by the JRPP as the condition demonstrates a deferral of that issue. The Applicants have selected one condition, 37, to attempt to show that flooding assessment and other requirements in the RDCP have not been satisfied. As already identified in Ground 1, the approval process and development consent must be considered as a whole.
One of the reasons given by the JRPP for approving the DA refers to acceptable mitigation of flood impacts in the WYURA. The extensive material dealing with flood impact assessment as summarised in the section on evidence above and identified by the Second Respondent is set out in my finding on Ground 1 at pars 52 to 69 above. Condition 37 is one of several conditions imposed in relation to reducing flooding impacts in that part of the consent dealing with stormwater drainage and flooding being Conditions 36 to 39 extracted above in par 25. For example, Condition 39 requires the construction of box culverts as part of the WYURA flood and drainage system across Carrs Drive. In addition, Condition 1 requires that the development be completed in conformity with the EPA Act and Regulation, the Building Code of Australia and generally in accordance with the subdivision plan, the SEE and 29 specified sheets of engineering plans. The plans include a detailed drainage network including swales and specify land fill levels. The JRPP was aware that flood impacts were central to the merit assessment of the DA which assessment by inference informed the conditions of consent imposed.
Very detailed submissions were made by the Applicants about parts of Part D of the RDCP because as I understand the Applicants' case this demonstrated that a very different development could result if these were complied with. Part D is a lengthy and complex document of 14 pages and extends well beyond the parts focussed on by the Applicants' counsel. That immediately gives rise to the issue of matters of detail being raised which lack overall factual context. It also raises the impermissible shopping list approach as I referred to above in par 31. Further, to the large extent the Applicants' counsel made assertions as to fact these were really merit submissions about matters the Applicants consider are relevant. Whether in the Applicants' view the controls were complied with or addressed in the documents before the JRPP is not material. For example, according to the Applicants the first step in applying the RDCP is determining whether land is a general flood plain or floodway. That can be accepted but the Applicants then criticised the Paterson Report for its conclusions in this regard and stated the report is wrong. That is a merit submission.

[36]

Ground 4 Failure to consider relevant parts of the Part X Urban Release Area Controls of the RDCP

Ground 4 of the amended summons provides: 14 Part X "Urban Release Area Controls" of the Residential Zones DCP 2011 (Urban Release DCP) applied to the Land. 15 The Fourth Respondent failed to take into consideration the Urban Release DCP as a fundamental element in or focal point of the decision making process, as required by s 79C(1)(a)(iii). Particulars The Part X Urban Release Controls in the Urban Release DCP are not considered at all. The Statement of Environmental Effects lodged for this development does not consider the Part X Urban Release Controls in the Urban Release DCP, despite considering other parts of the Urban Release DCP at pages 72-73 of the SEE. The Assessment Report prepared by Council dated 9 July 2015 does not consider the Part X Urban Release Controls in the Urban Release DCP. Item 2 "Staging and Servicing" at pages 205-206 of Part X of the Urban Release DCP requires a Servicing Strategy to be lodged prior to the grant of development consent for subdivision of land in the WYURA that addressing [sic] the implications of the servicing options for other landowners in the release area, and the proposed cost sharing arrangements with other landowners for any shared utility infrastructure including facility upgrades. No Servicing Strategy addressing these things had been lodged with either the Third or Fourth Respondent by either the First or Second Respondents, prior to the grant of the Consent. Condition 16 of the Consent requires preparation of a servicing strategy. Item 6 "Natural and environmental hazards - Flood and Fill management" at pages 216-217 of Part X of the Urban Release DCP has as an objective ensuring that flood and drainage impacts are considered for the development of the entire WYURA and not just in relation to the development of individual land parcels within the WYURA, and ensuring that at any stage of the overall WYURA development is successfully integrated and does not prejudice or detrimentally impact overland flow paths existing watercourses and the stormwater management network. The Item also provides that development consent must not be granted to earthworks or land fill unless an Earthworks Management Plan (EMP) has been prepared showing the level of finished lots are at least at the 1/100 year flood event level while also maintaining an effective drainage network, and overland flow paths. Control C3 of Item 6 provided for the mandatory content of the EMP, and specified that it was to include the required width and depth of all overland flow paths, and a program of works detailing actions and duration of filling activity and compaction. Control C4 provided that development consent was not to be granted to the carrying out of works within the WYURA if it would be inconsistent with such an EMP and detrimentally increase the potential flood affectation of other development in the WYURA. The Consent was granted contrary to the requirements of Item 6, as no EMP had been prepared as at the date of consent, as confirmed by Condition 46 of the Consent which required an EMP to be prepared. Further, the report entitled "Additional Flood Information" prepared by Paterson Consultants Pty Ltd and dated August 2014, expressly assumes that currently un-filled areas being the remainder of the WYURA will remain un-filled. 16 The Consent is as a result vitiated by a failure to consider Part X of the Urban Release DCP contrary to s 79C(1 )(a)(iii) of the EP & A Act, which makes a consideration of that matter a mandatory relevant consideration, and requires that it be a fundamental element in or focal point of the decision making process.

[37]

Applicants' submissions

Although Part X of the RDCP (extracted above in par 8) was before the JRPP, the Assessment Report gives rise to an inference that it was not considered as a focal point or fundamental element in the decision making, contrary to Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. The failure to consider Part X in the RDCP as required by Zhang is apparent from Item 2 Staging and Servicing of Part X and Condition 16 (extracted above in par 25) of the consent which requires the preparation of a servicing strategy that the RDCP requires be lodged prior to the grant of any development consent for subdivision. This is particularised at par 15 of the summons extracted above in par 118.
The same defect arises from the failure to have considered an Earthworks Management Plan ("EMP") (which Condition 46 makes clear does not exist) as required by Item 6 and control C3 of Part X (par 8 above). No overland flow paths have been depicted or shown on any diagram before the JRPP. This is a key omission having regard to the issue being dealt with, which is the placement of a large amount of fill in a floodplain in an area surrounded by other flood liable land.
An objective of Item 6 of Part X is to ensure that any stage of the WYURA development does not prejudice or detrimentally impact overland flow paths. The detail required in an EMP is specified in control C3 of Item 6 of Part X. These matters have not been addressed in any EMP or any material before the JRPP and are fundamental. The detail of these matters is made mandatory by the RDCP at the DA stage.
The importance of the EMP requirement is reinforced by control C4 in Item 6 of Part X that further provides that the consent authority must not grant consent to the carrying out of development which is inconsistent with an EMP and which would detrimentally increase the potential flood affectation on other development in the WYURA or result in a risk to human life. This control could not be complied with as no EMP was in existence or assessed as at the date of grant of the Consent.
The RDCP was amended to include Part X 72 hours prior to the grant of development consent and therefore the JRPP could not have been able to properly consider Part X. The only conclusion reasonably open on the evidence is that Part X has not been accorded significant weight or treated as a fundamental element or focal point of the decision making process. That Part X was not mentioned by name in the reasons of the JRPP or the Assessment Report is sufficient to make out this ground.

[38]

Second Respondent's submissions

The Second Respondent submitted that the real issue for determination is whether the JRPP failed to take into consideration pursuant to s 79C(1)(a)(iii) the RDCP when determining the consent. The RDCP was a required consideration under s 79C. It was the subject of express consideration in the Assessment Report. The DCP that was considered included Part X pertaining to the urban release areas. It was also included in its entirety for consideration by the JRPP prior to its consideration. It can be assumed that the provisions of Part X were read by the JRPP, and therefore taken into account. Further, conditions of consent were imposed by the JRPP to ensure that the controls in Part X would be achieved by the development. This ground of challenge must fail.

[39]

Ground 4 not proven by Applicants

Part X of the RDCP is a mandatory relevant consideration that the JRPP was bound to consider pursuant to s 79C of the EPA Act. The obligation pursuant to s 79C(1)(a)(iii) is for the JRPP to "take into consideration" the provisions of any development control plan that applies to the subject land. As discussed earlier in this judgment, the Applicants have the onus of proof on the balance of probabilities to establish the inference that the JRPP did not consider Part X.
The Applicants identified certain aspects of the consent and the conditions in an attempt to show that the JRPP did not give significant weight to the provisions of Part X. The decision of the Court of Appeal in Zhang was relied upon in support of these submissions. In that case Spigelman CJ (Meagher and Beazley JJA agreeing) held at [77] that the development control plan "ought to have served as a focal point for, or constituted a fundamental element in" the decision maker's deliberations. A provision of the DCP that is directly pertinent to the application at hand should be afforded significant weight in the decision making process but is not determinative, at [75].
The principle in Zhang cannot be appropriated by a party to disguise a merits submission. As Spigelman CJ stated in Zhang at [62]-[63], "care must be taken that this category of judicial review or appeal on question of law is not elided into a review on the merits or an appeal on the facts". The issue remains whether or not the decision maker took into consideration the relevant mandatory matter.
There is much evidence before me to show that the RDCP was a fundamental element or a focal point of the JRPP's decision. Applying Zhang, it is the RDCP not its component parts that must be a fundamental element in or a focal point for the deliberations of the decision maker. Significant weight must be afforded to provisions of the RDCP that are directly pertinent to the application. The Applicants have not established that the JRPP failed to place significant weight on Part X in its decision making process. The Applicants also relied on the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24 at 45-46 in support of their submission that the JRPP failed to consider a mandatory relevant consideration. That decision does not advance their case.

[40]

Ground 5

Ground 5 of the amended summons provides: 17 Further, or in the alternative, the decision to grant the Consent failed to take into consideration the likely environmental impacts of the development as required by s 79C(1)(b), in that it did not consider the cumulative impact on and in relation to flooding, overland flows and drainage of both the subdivision the subject of the Consent and the development of the remainder of the WYURA, and instead considered the flooding, overland flow and drainage impacts of the proposed 161 lot subdivision in isolation. Particulars By way of example, the Second Respondent's DCP at section 7.2 page 40 observes that "flood behaviour will change once the zoned urban lands within the WYURA are progressively filled", but the material lodged in support of the development application did not and did not attempt to assess this changed flood behaviour that would arise consequent upon the development of the whole WYURA.

[41]

Applicants' submissions

Section 79C(1)(b) of the EPA Act requires the JRPP to consider the likely environmental impacts of the development, including the cumulative impact in relation to flooding, overland flows and drainage of the subdivision area and the rest of the WYURA. The BMT WBM Report assumes filling of the rest of the WYURA, but the earlier Paterson Report does not consider the changes in flood velocities on the adjoining land in its undeveloped state, and neither does the BMT WBM Report. The BMT WBM Report assumes that the whole of the site is to be filled to a 3m AHD level which cannot occur instantaneously. So there is in fact no study of the impacts on the adjoining land in its undeveloped state or partially developed state to the extent required by the RDCP, the only consideration is on the assumption that a block of assumed fill is placed across the whole of the WYURA. Even that study does not consider changes in flood velocities or flow paths. Changes in flood velocities and storage levels of the land in its undeveloped state and in any partially developed state (for example, with sequential development on the adjoining WYURA land if that occurs) or if the WYURA land is actually filled in adjoining areas to a higher or different level to comply with the RDCP Part D requirement that habitable floor levels be at the PMF level are entirely and unsatisfactorily unknown.
It may be contended that the BMT WBM Report shows this matter was considered. Such a submission would be rejected due to the matters pertaining to cumulative impact not addressed by that report, nor in the Assessment Report. The BMT WBM Report does not consider all required kinds of flood and flow impact (flood velocities and overland flow paths are two crucial examples) and does not consider all reasonably required scenarios (filling to a higher or lower level than proposed, sequential or partial development, higher filling on the subject land versus no filling on adjoining land, the list goes on). When a consent authority is dealing with an issue impacting so significantly on life and safety as this flood management issue in an area to be subdivided, being the WYURA, these deficiencies can only be regarded as material.

[42]

Second Respondent's submissions

The Second Respondent concedes that there was an obligation on the JRPP to consider the impact of filling land within the floodplain for the purposes of residential development on other land in the locality. For that reason, it provided a Flood Impact Assessment Report by Paterson and a further flood report by BMT WBM after Dr O'Louglin reported to the Council there was a need for additional modelling. BMT WBM reported that with the proposed filling and modelling of the site alone as being filled together with modelling of the WYURA as totally developed there would be minor impact across some dwellings in the 1:100 year ARI flood event, less than 3mm. In the Assessment Report, the Council development planner concluded that the proposed development was not inconsistent with the objectives of cl 7.3 of the LEP.
What is destructive of this ground of challenge is the express reason for the JRPP's decision which conclusively demonstrates that the panel considered the likely impact of the development on the natural and built environment as required by s 79C(1)(b) in relation to flooding. Whether the challenger agrees with the JRPP's decision is not to the point.

[43]

Ground 5 not proven by Applicants

This ground alleges a failure to take into consideration the likely impact of the development as required by s 79C(1)(b) of the EPA Act. Section 79C(1)(b) requires consideration of the likely environmental impacts of a development on the natural and built environment, and social and economic impact in the locality. The Applicants' submissions in essence identify merit considerations only. The submission also took an impermissible shopping list approach of identifying matters which in the opinion of the Applicants were mandatory relevant considerations without establishing in the s 79C(1) statutory context why they were.
The Second Respondent in Ground 1 identified the extensive flooding impact assessment material before the JRPP. No criticism can be made given the BMT WBM Report that the Second Respondent's land was considered in isolation from the rest of the WYURA. The criticism made again that there is no reference to velocity or overland flow paths is not sustained when the evidence as a whole is considered. For example, the Paterson Report incorporates velocities in the model described in the report on at least five pages.
As the Second Respondent submitted the JRPP expressly identified in the Notice of Determination that it considered detailed flood modelling which demonstrated that the proposed development provides flood and drainage systems for the WYURA and the development, mitigating impact on surrounding property and infrastructure. That is precisely the consideration required by s 79C(1)(b).
Given these findings on the nature of the Applicants' case, the authorities referred to Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400, Parramatta City Council v Hale (1982) 47 LGRA 319 and Bat Advocacy NSW v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 which emphasise the need for an intellectual process of engagement in relation to a mandatory matter can all be accepted. No failure to do so by the JRPP in the Applicants' case has been established.
The Applicants have not discharged the onus of proof of establishing ground 5.

[44]

Ground 6

Ground 6 of the amended summons provides: 18 Further, or in the alternative, the decision to grant the Consent was legally unreasonable in all of the above circumstances, in that it assessed the proposed subdivision of the Land without adequate regard to the implications of the 161 lot subdivision for the development of the remainder of the WYURA and the development of the WYURA as a whole.
Although the Applicants submitted that Ground 6 was able to be maintained if unsuccessful on the earlier grounds of review I am unable to see how. The Applicants essentially repeated the alleged failures in the JRPP's consideration identified in other grounds in relation to Part D of the RDCP, Part X, the absence of an EMP and servicing strategy. As articulated in written submission a failure to consider the floodway within the WYURA and impacts on nearby properties is also alleged but no such failure has been established. The high hurdle of satisfaction of legal unreasonableness as identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 and considered on many occasions most recently in the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 cannot be satisfied here. The Applicants are unsuccessful on Ground 6.
As the Applicants have not succeeded in their judicial review challenge the amended summons dated 16 May 2016 is dismissed. Costs usually follow the event in Class 4 proceedings. An order that the Applicants must pay the Second Respondent's costs will be made in fourteen days unless a notice of motion seeking other orders is filed before then.

[45]

Orders

The Court orders that: 1. The Amended Summons dated 16 May 2016 is dismissed. 2. The Applicants must pay the Second Respondent's costs within 14 days unless a Notice of Motion seeking other orders is filed prior. 3. The exhibits may be returned.

[46]

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: 17 June 2016

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