Fitzhenry v Hornsby Shire Council

Land and Environment Court (NSW)|2010-03-09|Before: Mr J

CITATION : Fitzhenry v Hornsby Shire Council [2010] NSWLEC 1083

APPLICANT Daniel Fitzhenry PARTIES : RESPONDENT Hornsby Shire Council

DEVELOPMENT APPLICATION :- Agricultural shed KEY ISSUES: Unauthorised construction Prospective use

Cranebrook Sales Pty Ltd v Penrith City Council [2008] NSWLEC 1260 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 CASES CITED: Hackett v Hawkesbury Shire Council [2006] NSWLEC 503 Ireland v Cessnock City Council (1999) 103 LGERA 285 Ireland v Cessnock City Council (1999) 110 LGERA 311 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315

APPLICANT Mr J Doyle, barrister LEGAL REPRESENTATIVES: Australian Town Planning Consultants 2 Pty Ltd, agent RESPONDENT Mr T Pickup, solicitor Storey & Gough Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) from a decision of Hornsby Shire Council (the Council) to refuse consent to development application D277/2009 which sought approval for the construction of a shed on a rural property at 581 Singleton Road Laughtondale, being Lot 1 in DP 1073144 (the site). 2 The development application was lodged on 19 March 2009, after the shed had been constructed. The applicant seeks in these proceedings consent for works proposed to be carried out on the shed and for use of the shed as an agricultural shed. 3 The site is triangular in shape and has a 350m frontage to the Hawkesbury River, and a 45m frontage to Singleton Road. The site has an average fall of 3% from the road to the Hawkesbury River. The majority of the vegetation has been cleared for the purposes of agricultural activities previously carried out on the site. The shed is located 40m from the mean high water mark and 37m from the southern adjoining property, and within the 100 year ARI Hawkesbury River floodplain. There is a dwelling on the site located 80m from Singleton Road, on higher ground above the 100 year ARI.

4 The shed is 16.5m x 9m, and 6.8m high, and is constructed of dark green colourbond, with a roller door on the southern, or downstream, side, on a concrete slab. The proposed works include the replacement of a portion of colourbond panelling 9.5m wide to a height of 3m on the northern side of the shed with metal mesh to allow water to flow through the shed if the roller door is up, the addition of new vertical and horizontal supports to support the SL92 mesh, and removal of benches on the northern internal wall. The applicant has proposed a Flood Management Plan (Exhibit C) which would require that no chemicals or fertilizers are stored in the shed; that in the event of flooding all vehicles and machinery are to be moved to high ground and the roller door is to be locked open; and that a Flood Co-ordinator for the property is to monitor flood warnings issued by relevant emergency services. 5 The applicant has applied to the Council pursuant to s149B of the Act for a building certificate; the Council has not determined that application, and its position is that it will not consider or approve that application if this appeal does not result in the grant of development consent. Before the commencement of the hearing I invited the parties to consider whether the appropriate course would be for an appeal pursuant to s149F of the Act to be lodged and heard together with these proceedings. The parties were in agreement that their preferred course was to proceed to determine the development consent appeal on the basis that the issue of structural adequacy of the shed as constructed could be the subject of a deferred commencement condition.

6 The issues between the parties are whether the location of the shed within flood prone land is unsuitable; the impact on the riverscape and scenic quality of the area; and the public interest, including precedent. The Council accepts that the contentions relating to visual amenity can be addressed by way of conditions for screen planting. Planning controls 7 The site is zoned Environmental Protection B (River Catchment) under Hornsby Shire Local Environmental Plan 1994 (the LEP). The objectives of the Environmental Protection B (River Catchment) zone are: (a) to protect the natural environment of sensitive areas within the catchment of the Hawkesbury River. (b) to protect the valleys and escarpments within the catchment of the Hawkesbury River and accommodate land uses, including housing, that recognise the environmental sensitivity of the area. (c) to protect the scenic quality of visually prominent areas and water quality within the catchment of the Hawkesbury River. 8 Development for the purpose of "agricultural structures" is permissible with consent. Clause 23 defines "agricultural structures" to mean: any structure associated with agriculture, and includes farm sheds, barns, silos, greenhouses, glasshouses and the like. 9 Sydney Regional Environmental Plan No 20 - Hawkesbury/Nepean River (No 2-1997) (SREP 20) applies to the site. Clause 5 provides: 5 General planning considerations

The general planning considerations relevant for this Part are: (a) the aim of this plan, and (b) the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy, and (c) whether there are any feasible alternatives to the development or other proposal concerned, and (d) the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored. 10 Clause 6 sets out specific planning policies and recommended strategies, which include at 6(3) Water Quality, and 6(7) Riverine Scenic Quality. Clause 4(1) provides that the general planning considerations in cl5 and the specific planning policies and strategies in cl6 must be taken into consideration by a consent authority determining an application for consent to the carrying out of development on land to which the SREP 20 applies. 11 The Hornsby Council Rural Lands Development Control Plan (the DCP) applies to the site. Relevant controls in Part 3 of the DCP include those relating to Agricultural and Rural Structures, Urban Streams, and Visual Amenity. The objectives of the Agricultural and Rural Structures provisions are: To ensure that the location of rural sheds is sensitive to the character and amenity of the area To ensure that rural sheds do not impact upon the visual environment of the area 12 The Urban Streams controls have the following objective: To retain and enhance the natural functions of watercourses within Hornsby Shire for the betterment of the quality of life of the people of Hornsby, and the improvement and protection of the environment. 13 The prescriptive measures for this element include: Buildings, fences, and other structures should not be constructed within the overland flow path of flood waters. 14 The objectives of the Visual Amenity element are: To preserve important views and vistas To preserve and enhance significant visual landscapes in the rural lands. Evidence 15 The hearing was conducted pursuant to s34B of the Land and Environment Court Act 1979 (the Court Act) as an on site hearing. The evidence included a view of the site, including the shed. 16 The present use of the shed is for storage of an excavator and a tractor/slasher, and other equipment and supplies. In a written statement the applicant stated his intention to return the river flat area to agricultural activity including irrigated improved pasture for baling and an orchard; the shed is to be used for storage of a farm tractor, slashing equipment, dam cleaning equipment, ploughs, hay baler and irrigation equipment. The equipment is to be used both for the agricultural component of the property and for remediation of damaged areas of the river bank.

17 Evidence in support of the application was given by three neighbours, two being the occupants of No 577 (on the northern side of the site) and one being the occupant of 583 Singleton Road (on the southern side). The occupants of No 577 have lived there for 38 years and gave evidence as to their observations of flooding. The largest flood was in 1978, at 1.2m, when the water went over the fences. One occupant gave evidence that he had been on the lower ground in a flood of 600mm to move cattle and had not felt a current of water; the speed of flooding varies and sometimes there is nothing at night and the next morning there is flooding; and he likes the shed in its present location. The other occupant gave evidence that there is a wetland lower downstream and water inundates from below their property, not from above; the tide has an impact on the extent of inundation. In 2007/2008 there was a major flood at St Albans and the water backed up in the lowlands. The topography is higher upstream and the water comes inland from lower downstream. The floods flow strongly down the river and there are eddies because of the rocks on the other side of the river; she has observed debris in the river but not across properties. The evidence given by the occupant of No 583 was that while he has owned the property only since Christmas he has been involved in the area for years and so knows what is going on. He knew the shed was there when he bought the property and he has no problem with it. He cannot see the shed from his house; there is screen planting in front of his house and he can see the dam on 581, and look over the top of the conifers planted on his property, but cannot see the shed.

18 Ms Debra Morris, town planner, and Mr Rod Pickles, Manager Assessments, gave evidence on behalf of the Council. Ms Morris stated that she prepared a schedule of structures identified between the flood line and mean high water mark on properties within a 2km radius of the site, from 174 to 1169 Singleton Road (Exhibit 5). Ms Morris stated that she prepared the schedule first by examining the aerial mapping and GIS system at the Council which shows the 1/100 year floodline, and then examining the electronic register of development consents from 1988 (the "pathway") and obtaining the files for records of development consents. She correlated the properties identified in the schedule with those shown in photographs provided by the applicant of properties from 470 to 685 Singleton Road (Exhibit G). For 16 properties identified, the Council records show no approval records. Two properties have a development consent for erection or alterations of a dwelling with floor levels of 6.7AHD and 6.18 which is acceptable; three properties have sheds or structures below the flood line with approval for others above the flood line; one which has a dwelling located on the flood plain has no approval in the pathway but the property file indicates the dwelling was built in 1979 with a floor height of 5.3AHD. Two properties are the site of a caravan park with 12 and 19 cabins respectively below the flood line. Ms Morris noted that the Council had investigated that matter in 1987 and determined that no consent had been issued for the erection of the cabins. Ms Morris stated that the Council would generally not impose conditions as to what could be stored in the ground floor of dwellings in the flood plain used for storage or parking.

19 Expert engineering evidence was given by Mr Lyle Marshall on behalf of the applicant and Mr Paul David on behalf of the Council. In their Joint Report both agreed that the shed is located within a high hazard area as defined in the NSW Floodplain Development Manual (2005), and would be inundated in a 100 year ARI flood event. The Council's records indicate that the 1% AEP flood level at the site is at RL 5.7m AHD; the finished floor level of the shed is 1.82m AHD. Both agreed that the impacts of flooding on the shed in a 20 year and 50 year flood event have not been determined. Mr Marshall calculated the flood level in a 1 in 20 year event based on the Lower Hawkesbury River Flood Study and the August 1990 flood which had a frequency of occurrence of around 5% AEP; interpolating the flood levels at Wisemans Ferry (4.3AHD) and at Gunderman (2.73 AHD), and using the Flood Profiles in the Flood Study, he estimated that the flood level at the jetty was 3.38AHD. Mr David did not dispute this estimate, however he was of the opinion that a flood level of 3.38AHD for the 20 year flood event still puts the shed in a high hazard category which increases the risk of the shed being flood affected even in minor storms. 20 The experts disagreed as to the structural stability of the shed and the ability to withstand the impacts of debris and log impact. 21 Mr Marshall provided with the amended plans a certificate as follows: I certify that this shed will withstand the forces due to water flow in a 1 in 100 year flood. The shed will not overturn. I cannot guarantee that the building will not be damaged by forces due to debris and log impact.

22 In oral evidence Mr Marshall acknowledged that he had not been involved in the construction of the concrete slab, and based this statement on a document titled "Engineers Certificate - Works as Executed" (Engineers Certificate) signed by the applicant (who is a registered surveyor) and Mr Adam Fitzhenry, his son, (who is a civil engineer). That document (Exhibit F) states that the concrete slab was on a compacted layer of road base and reinforced with F72 mesh; the formwork was prepared so the minimum thickness of the slab would be 110mm; and the edge beam around the slab was of a minimum depth of 200mm and minimum width of 300mm. Mr Marshall was of the opinion that an invoice in the name of Gospers Garages and Roofing for formwork and concrete (Exhibit L) supported the Engineers Certificate, on the basis that it specified a minimum slab of 110mm/25mpa/F72, and an edge beam of 200x300; in his opinion the owners were entitled to expect that they had obtained what they had paid for. Mr Marshall agreed that the plans for the slab submitted to Council as part of the development application were not consistent with the description of the works as executed in Exhibit F. 23 Mr Marshall's stability calculations of the subsisting movement of the slab and steel framed building against overturning forces in a 100 year event due to wind load, buoyancy, water flow, debris and log impact lead him to be satisfied that the shed is stable against overturning. These calculations were based on the Austroads Bridge Design Code and AS 5100.2-2004, and on a water velocity of 1.1m/sec which he based on the Lower Hawkesbury Flood Study. The cliffs on the other side of the river would mean the velocities would be higher on that side of the river. Because the shed is not in the main channel, it is not likely that there would be debris below 1.2m below the flood level; that factor, together with the low velocity, means that the shed would be subject to relatively low forces. Mr Marshall stated that he is satisfied that the shed will not overturn, once the modification was done and the doors opened which would reduce the water pressure, and he was of the opinion that the slab would hold together even if it cracked. 24 Mr David expressed the opinion that an independent structural evaluation of the constructed shed is required to determine what was actually built. For the Council to approve a structure it would need to have certification, by someone on the Building Professionals Board register, as to how the structure was built. Mr David had observed on the view that there are columns not shown on the amended plans provided by Mr Marshall. His concern is with the wind loads, and with whether the shed would overturn or crack because there is no steel at the sides. He accepted the design and drawings prepared by Mr Marshall, however he is concerned about the qualifications of those who actually did the work and cannot be certain about the works as built. It was not evident that a structural engineer had approved the slab and reinforcement before the concrete pour, which is standard construction practice. In his opinion because there were so many discrepancies in the plans, in order to be satisfied about the structure there would need to be a core sample test undertaken to see where the steel is in the slab and then an accredited certifier could sign off on it. 25 In evidence on the proposed works Mr Marshall was of the opinion that while water would be above the top of the mesh in a 100 year event, the velocity would be slow and the difference in width between the mesh and the open door would not impede the flow of water through the shed. His calculations had taken into account the difference in height of the openings on the northern and southern sides. Mr David commented that the water would collect debris which would be an obstacle for the flow of water; Mr Marshall was of the opinion that the mesh is strong and with extra girts and columns if the debris is within 1.2m of the top of the water there would be no way that debris could get into the shed.

26 The experts disagreed as to the reliance that should be placed on the Flood Management Plan. Mr Marshall was of the opinion that since the shed is located above 1.5m AHD there is adequate flood warning of 18 hours for people to clear the shed of its contents, fix open the doors and evacuate the area; and that a permanent caretaker will be on site to implement the plan of management. Mr Marshall agreed that the value of the Flood Management Plan depends on the owner following it, but was of the opinion that it reflects commonsense, and is an attempt to minimise risk. In his opinion there is a difference between a habitable building and an agricultural shed; while the shed is in a high hazard area, with adequate flood warnings the risk is very low. Mr David was of the opinion that there is no guarantee that present or future owners would have a caretaker permanently on site to implement the plan of management, and that in the event of a flood the shed could uplift and pose a threat to public safety and property. Mr David was of the opinion that in a 20 year flood the shed would be in a high hazard area. 27 On the issue of precedent, Mr David was of the opinion that approving a shed in a flood affected area would set a precedent for other structures to be built within the flood plain, and that the addition of more structures could ultimately cause flood levels to rise and inundate structures currently unaffected by flooding. There was a risk as it is not possible to stop people walking around in floodwaters for example to salvage things. Mr Marshall agreed that no cumulative impact studies had been completed, however was of the opinion that it is unlikely that permitting similar structures in the high hazard area would have any significant cumulative impact due to the large holdings and limited potential to build on properties. On the issue of whether there was a significant risk to human life or injury, Mr Marshall stated that based on the Lower Hawkesbury Flood Study, there would be 18 hours before a flood reached a level of 1.5m; the river banks at the site are 1.8-1.9m; and it would take 48 hours or so to reach the height of a 100 year flood, which is a long time to evacuate people, and would provide an adequate safeguard. Conditions 28 There are two proposed conditions that are in dispute. The Council's draft Conditions of Consent include a deferred commencement condition in the following terms: 1. Deferred Commencement Pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until: (a) A Building Certificate for the existing shed has been issued by Council, or Council has advised under section 149D(3) of the Environmental Planning and Assessment Act that completion of the further work to ensure the structural adequacy of the existing structure will enable the Council to issue such a Building Certificate. (b) A structural engineer accredited with Building Professional Board (BPB) submits the following information to Council:- s A report detailing appropriate tests conducted under the supervision/direction of a structural engineer NPER (National Professional Engineers Register) registered with the Institute of Engineers to evaluate the raft and slab thickness reinforcement size and position and concrete compressive test. s A certificate of compliance issued by a structural engineer accredited as C7 with BPB is to be submitted to Council that certifies the constructed shed can withstand category 2 wind load and impacts of debris on the shed for all storms up to the 1 in 100 flood event. Such information shall be submitted within 6 months of the date of this notice, otherwise this consent will lapse. 29 This condition is based on a condition drafted by the expert engineers during the course of the hearing. The applicant proposes that this condition be amended by the addition of the following words at the end of the sentence in the first paragraph of 1(b): ", if any such tests are determined to be necessary by that engineer to certify the structural adequacy of the shed having regard to available documents." 30 The applicant submits that it should be left to the certifying engineer with registration to determine whether any additional testing is required. The Council submits that the appropriately qualified and accredited structural engineer should determine the appropriate test and a report on the testing would provide a basis for the accredited expert to provide the required certification given that they had not observed how the slab and shed were constructed. 31 The Council's draft Conditions of Consent include condition 8: 8. Positive Covenant Prior to the issue of occupation certificate, a positive covenant benefiting Hornsby Council must be registered on the title to Lot 1 DP 1073144 in accordance with Council's prescribed wording for the following: (a) Indemnify Council against any claim that ay arise asa result of the erection and use of the shed within an area that has been identified as being ain a high hazard flood area and that would be inundated in a 1 in 100 year flood event. (b) Require the owners to keep in force in the name of the Owners a public risk insurance policy in an amount of not less than ten million dollars ($10,000,000.00). (c) Require that in the event that the structure is removed or washed away that it not be permitted to be rebuilt in this location or in an area affected by the 1 in 100 year flood level without further development consent from Hornsby Council. 32 The applicant accepts that a positive covenant is appropriate to notify a subsequent owner of the land as to its obligations to comply with the flood management plan and conditions of consent and keep the shed insured, however it is inappropriate for a subsequent purchaser to be required to give an indemnity to Council against liability. 33 After both parties had provided brief written submissions on the conditions in dispute, Mr Pickup for the Council very properly contacted the Court to draw my attention to the decision of Cowdroy J in Hutchison 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151, which is inconsistent with his submissions on condition 8. This decision, and the earlier decision of McClelland J in Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5, support the conclusion that condition 8(a) requiring an indemnity would not have a basis in any of the matters set out in s79C of the Act and therefore could not be imposed. 34 In view of my conclusion below that development consent should not be granted, it is unnecessary to express a conclusion on the appropriate wording of a deferred commencement condition.

Applicant's submissions 35 Mr Doyle for the applicant submitted that on the basis of Mr Marshall's evidence as to the adequacy of the construction, there is no longer a requirement that there be a building certificate; the Court has ample evidence to be satisfied that if the conditions for the proposed works are complied with the shed will be structurally sound. In the alternative, the applicant is prepared to have a deferred commencement condition as discussed above. Mr Doyle submitted that imposing a deferred commencement condition would not constitute a deferral of a matter that must be resolved in order to grant consent. A consent authority can refer a matter to an appropriate expert, and if subsequent inspection indicated that extra work was needed that could be undertaken without the matter needing to come back. Mr Doyle submitted that approval of the shed if operated in accordance with the Flood Management Plan would promote the object in s5(1)(ii) of the Act which is to encourage "the promotion and co-ordination of the orderly and economic use and development of land". The site is a rural floodplain with agricultural productive capacity and the shed is supportive of that continuing. In addressing the matters required to be considered under s79C of the Act, Mr Doyle submitted that the factors identified by Commissioner Hussey in Hackett v Hawkesbury City Council [2006] NSWLEC 503 are relevant in these proceedings, and that when the evidence of the likely warning time, the limited damage that might occur through cracking of the slab, the intended flow of water through the structure, assessment based on the 100 year and 20 year flood, and the controls to be applied including the Flood Management Plan is considered, the application warrants approval. The application is consistent with the objectives of the Environment Protection B (River Catchment) zone as the shed if operated according to the Flood Management Plan will not impact adversely on any part of the natural environment or on the scenic quality of the area with appropriate screen planting. The Floodplain Development Manual accepts that there will be development in flood liable land, and to that extent the Council's practice of not approving development in floodprone areas should be disregarded; Mr Doyle relied on the decision of Commissioner Hoffman in Cranebrook Sales Pty Ltd v Penrith City Council [2008] NSWLEC 1260 granting consent to a residential subdivision in flood prone land. Mr Doyle submitted that the Floodplain Development Manual should be given significant weight, and that the DCP is consistent with it. Respondent's submissions 36 Mr Pickup for the Council submitted that in order to grant consent without a building certificate the Court would have to be satisfied as to the structural adequacy of the shed. In considering the application of the SREP 20, a feasible alternative is for the shed to be relocated above the flood area without limiting the agricultural use of the land. The Council contends that approval of a structure within the 100 year would set a precedent which can be a relevant consideration.

Consideration 37 The present proceedings relate to an application for development consent for the carrying out of works to modify the shed and for the prospective use of the shed as an agricultural shed. The starting point for consideration is the decision of Bignold J in Ireland v Cessnock City Council (1999) 110 LGERA 311. Those proceedings were two appeals, one in relation to an application for a building certificate and the other a development application, concerning a building erected without consent. In his determination of preliminary questions of law (reported as Ireland v Cessnock City Council (1999) 103 LGERA 285), Bignold J held that the highest and best result for the applicants in the development appeal was the grant of consent to the prospective use of the building. It was accepted by the parties in those proceedings that there would be difficulties in the development appeal unless it were first established that there was at least the possibility of obtaining the issue of a building certificate. In his determination of the substantive issues, Bignold J first considered whether a building certificate should be issued, and on the basis that the evidence established that the subject building had been well constructed and was structurally sound, directed the council to issue a building certificate. Bignold J then addressed the question of whether development consent should be granted, and on the basis of the planning evidence, held that development consent for the proposed use should be granted. 38 It was common ground in these proceedings that the question of structural adequacy of the shed is the first issue that must be addressed. It was not in dispute that the shed is located in a high hazard area, that the finished floor level is 1.82m AHD, and that it would be inundated in a 100 year ARI event. The expert evidence was focussed on the potential in a flood for the shed to overturn or for there to be damage to the structure from logs or other debris. 39 Mr Marshall has provided a certificate as to the structural integrity of the shed in the terms set out in paragraph 19 above. Mr Marshall is a qualified engineer with experience in traffic engineering, civil engineering, and 15 years experience in structural engineering as a project manager for design and construction of bridges. However, Mr Marshall acknowledged in evidence that the certificate provided with the amended plans is based on information as to the construction of the concrete floor slab provided by the applicant and his son, and that the details of construction provided in that form differ from the plans provided to Council as part of the development application. Mr Marshall's conclusion that he was satisfied that the shed would not overturn with the mesh opening upstream and the door on the other side open was based on what he had been told about the construction of the concrete slab, and his opinion that the shed would be subject to relatively light forces. Mr David is a qualified engineer with experience in hydraulics and some 30 years experience working for councils. In the absence of independent evidence as to the actual method of construction of the concrete slab, I accept the conservatively based evidence of Mr David and agree with the Council's position that further testing of the slab would be required to reach a state of satisfaction that the shed as constructed is adequate to withstand the impact of floodwaters. 40 The parties were in agreement that a deferred commencement condition would address their concerns about structural adequacy. Section 80(3) of the Act enables a consent authority to impose such a condition: 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. … (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. 41 Section 80(3) is in the same terms as the former s91AA, which the Court of Appeal held in Weal v Bathurst City Council (2000) 111 LGERA 181 at [94] did not free the consent authority from the obligation to consider all the relevant matters as required by s90(1) (now provided in s79C of the Act). Section 80(1) requires that a development consent be a consent to the application for which approval is sought. In Mison v Randwick Municipal Council (1991) 23 NSWLR 734 the Court of Appeal considered circumstances where there is a potential for departure from that requirement in two broad categories, the first being the imposition of a condition which has the effect of significantly altering the development, and secondly, where a condition lacks finality or is uncertain. In GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 Basten JA (with whom Bell JA and Young CJ in Eq agreed) held: 48 Questions of finality and uncertainty will often be related, but are likely to bear upon the same question as that addressed in the first category discussed in Mison. In each respect the question must be whether a consent has been given to the development which was the subject of the application. Where conditions give rise to uncertainty, the fact that it is not possible to know whether the satisfaction of the conditions will give rise to a significantly different development may demonstrate that the consent is not a final and valid consent to the development as proposed.

42 Basten JA noted the amendments made to the Act since Mison was decided, and concluded (at [57]) that while the various elements of s80A(1)-(6) affected the statutory scheme they did not affect the test of the validity of a consent, and that "they allow that the conditions will not be uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised". 43 Mr Doyle for the applicant submitted that a deferred commencement condition in the form proposed would not be contrary to the constraints identified in Mison, on the basis that the evidence of Mr Marshall establishes as a matter of fact that the building is structurally adequate and that even if an examination indicated that more work was needed that could be carried out. Mr Marshall's evidence was that it would be a matter of looking at the results of any testing carried out and then a cost assessment of solving any problem, for example by putting extra reinforcement. 44 Given the uncertainties as to the construction of the concrete slab, I am not satisfied that a condition in the form proposed would not leave open the possibility that remedial work required to address any issues identified by testing of the concrete slab, together with the work proposed in the development application before me, might give rise to a significantly different development. To impose a deferred commencement condition in the form urged by the applicant or by the Council would not, in my view, be a final and valid consent to the development as proposed. I am not satisfied that the shed as constructed is structurally sound so as to meet the first requirement in Ireland v Cessnock. 45 In Ireland v Cessnock Bignold J referred to the difficulties that arise in considering a development application for prospective use where the applicant has not established at least the possibility of obtaining the issue of a building certificate. If I am wrong on my conclusions on the issue of structural adequacy or the imposition of a deferred commencement condition, there would still need to be an assessment of whether it is appropriate, having regard to the matters required by s79C of the Act to be considered, for consent to be granted to the prospective use of an agricultural shed in that location.

46 Section 79C(1)(c) of the Act requires consideration of the suitability of the site for an agricultural shed. The NSW Floodplain Development Manual (2005) sets out the NSW Flood Prone Land Policy, and recognises that flood prone land is a valuable resource that should not be sterilised by unnecessarily precluding development. The primary objective of the Flood Prone Land Policy is "to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods, utilising ecologically positive methods where possible". At 1.1.1 the Flood Prone Land Policy states that a merits approach should be adopted for all development decisions in the floodplain, taking into account "social, economic and ecological factors, as well as flooding considerations". The Flood Prone Land Policy proceeds on the basis that councils will prepare and implement floodplain risk management plans. The Council resolved in 2005 to form a Floodplain Risk Management Committee; it has not adopted a floodplain risk management plan. The Council's policy towards development in flood prone areas was stated by Mr David to be that there should be no structures in high hazard areas unless there is no impact on floodwaters.

47 In the absence of a Council floodplain risk management plan, the applicant submits that the principles set out in Hackett v Hawkesbury City Council [2006] NSWLEC 503 should be applied: However, Mr Bewsher identified the following evaluation criteria/planning principles which he considers appropriate, in the absence of a FRMP, for the assessment of this development application:

i. A development should be consistent with the relevant Floodplain Management Plan prepared by the Council, if such Plan exists. ii. Graduated planning controls are necessary which recognise the flood sensitivity of certain land uses and the variability of flood hazards across a floodplain. iii. The development must not result in an unacceptable risk to personal safety, either on the site or elsewhere. iv. The development must not result in an unacceptable risk to property, either on the site or elsewhere. v. Where the personal safety risks or property risks associated with the development are small, the cumulative impact of multiple developments in the floodplain need to be considered to identify if the resultant impacts are acceptable. vi. The suitability of the development should be evaluated over a range of flood sizes that have different probabilities of occurrence. vii. The types of planning controls to be applied to floodplain developments will usually comprise: a) Floor levels b) Building components (i.e. to ensure materials are flood compatible) c) Structural soundness (i.e. ability to withstand flood waters) d) Flood effects on others (i.e. the development should not increase flood effects elsewhere having regard to flood levels, velocities, loss of flood storage and changes in flood conveyance) e) Evacuation and access f) Management and design (e.g. storage of hazardous goods in a floodplain, or ensuring development as a consequence of the subdivision application can be carried out responsibly having regard to the flood risks). 48 It was common ground that the shed is located in a high hazard area as defined in the Floodplain Development Manual. The Floodplain Development Manual in Appendix L at L5 defines a high hazard area in the following terms: High hazard possible danger to personal safety; evacuation by trucks difficult; able-bodied adults would have difficulty wading to safety; potential for significant structural damage to buildings. 49 The Council contends that there is a risk that chemicals and other hazardous substances stored in the shed might be flushed into the river system in the event of a flood. The applicant argues that the Flood Management Plan mitigates this risk by ensuring that chemicals are not stored there and that vehicles and other equipment that might be washed into the river system are moved out of the shed to higher ground in the event of a flood. The applicant submits that the factors identified by Commissioner Brown in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315, in assessing whether a plan of management is appropriate for a particular situation, have been adopted in the Flood Management Plan proposed here: it is concise, it is to be notified on the title to the property by a condition requiring registration of an appropriate covenant, and it ensures that the Council can check it is being complied with as it is easy to check that notices are in place and there are no chemicals or fertilisers in the shed. I agree that these steps are appropriate, however the discussion in Renaldo gives rise to two concerns not addressed by the applicant. The avoidance of the risks identified by the Council requires strict compliance with the prohibition in the Flood Management Plan of storage of chemicals or fertilisers, and the opening of the roller door and movement of vehicles to higher ground in the event of flooding. Non-compliance with either requirement could lead to chemicals, or vehicles or other equipment, being washed into the river system or onto adjoining properties. Compliance with the Flood Management Plan depends on two factors: that there is someone on site or otherwise able to implement these steps, and that there is diligent monitoring of flood warnings issued by the State Emergency Service and local radio stations. I agree with Mr David's concerns that there is no guarantee that there will be a person permanently on site; and even if there is compliance with the requirement to monitor flood warnings, the evidence of the adjoining neighbours as to the unpredictable speed at which floodwaters have arisen in the past, and the direction from which they have come, supports a conclusion that that might not be adequate to respond in time. Further, the imposition of a development consent condition requiring a site specific plan is contrary to the policy of the State Emergency Service, which the Floodplain Development Manual summarises as follows: Unless a plan is owned, understood, and practised by the owner/occupier, it will almost certainly be forgotten and fail to be effective.

50 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Lloyd J held that the risk of risk of establishing a precedent which can be invoked by prospective developers of other land in the vicinity is a valid consideration. The experts differed as to whether approving a shed in a flood affected area would set a precedent for other structures to be built within the flood plain; Mr David was of the view that it would, Mr Marshall was of the view that it is unlikely that permitting similar structures would have a significant cumulative impact. The applicant points to the presence of sheds and other structures on properties in the locality. I accept the evidence of Ms Morris, based on her search of council records, that there is no evidence of the Council having approved structures located below the flood line with floor levels at risk of inundation. While there may be compliance issues which the Council may need to address, I agree with Mr David that approval of this application could establish a precedent for other applications for structures in similar locations. The experts agreed that studies to establish what the cumulative impact of the addition of more structures would be have not been undertaken. 51 A further factor relevant to an assessment of the suitability of the site for this development is that identified in planning principle 5(c) under the SREP 20. I agree with the Council that there is a feasible alternative to the location of the shed, namely that it be located on higher ground closer to the house. The primary objection to this, from the adjoining neighbours, was the visibility of a shed in a location closer to the house above the flood level. The proposal before the Court depends on the ability to move the equipment stored in the shed to higher ground in the event of a flood. There is no indication on the evidence before me which includes the view of the site that it would not be feasible to construct a shed in a higher location that would still permit the movement of vehicles and equipment to the river flat area or the riverbank, or that such a shed could not be screened from view from the house or from adjoining properties in a way similar to that proposed for the shed in its present location. Conclusion 52 The evidence before me does not establish that the shed as constructed is structurally sound, and I am not satisfied that a deferred commencement condition in the form proposed would overcome the evidentiary deficiencies. On a merits assessment of the proposed use, the reliance on strict compliance with a plan of management to address risks to the river system, property and personal safety; precedent; and the feasible alternative of relocation of the shed, lead me to conclude that the site is not suitable for the development. The development should not be approved. 53 The orders of the Court are: 1. The appeal is dismissed. 2. Development application D277/2009 for the construction of a shed on a rural property at 581 Singleton Road Laughtondale, being Lot 1 in DP 1073144, is refused. 3. The exhibits are returned, except exhibits 1 and 3.

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.

(1999) 103 LGERA 285

(1999) 110 LGERA 311

(2000) 111 LGERA 181

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Cases Cited (10)