Gardiner v Central Coast Council

The site and locality

1. The site is located on the western side of Marathon Street between Warner Avenue and Panonia Road. It is legally described as Lot 14, Sec 2 in DP 4361 and known as No 16 Marathon Street, Wyong. An easement to drain water 1m wide extends parallel to the northern side boundary and is for the benefit of lots to the north-west of the site.
2. The site has a frontage of 20.12m, depth of 70.55m and site area of 1419.2m2. It contains a single storey dwelling house with driveway access. The yard area of the site is largely underdeveloped with a small garden shed located at the approximate midpoint of the site. This is to be demolished as it would encroach the proposed boundary.
3. Marathon Street contains a mix of low density residential development with a recently constructed dual occupancy development on a battle axe allotment four sites to the north. There are also a number of dwellings on similarly configured lots due to the large lot sizes of the original subdivision.
4. Wyong River is located approximately 800m to the south of the site and when it floods, the site is inundated. The levels on the site vary from RL 2.37m at the driveway entry to the site to RL 2.8m2 at the rear, south western corner of the site. Accordingly, the whole of the site is inundated in a 1% flood however, in a 5% flood, the site is flood free.

Flooding

1. A Flood Information Certificate issued by the Council on 29 November 2021 states the minimum level of a 1% flood is 2.97m and maximum is 3.33m AHD with the PMF at 4.75m minimum and 4.81 maximum. The Council has set a minimum habitable floor level of 3.53m AHD for the site.
2. The Certificate nominates the site as a Flood Control Lot.
3. The site is nominated as Flood Storage Area for the Flood Exclusionary Categories under the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008) and in a High Hazard Area (H3, H4, H5 and H6 Hazard Categorisation).
4. Clause 3.5 of SEPP 2008 is in the following form: 3.5 Complying development on flood control lots (1) Development under this code must not be carried out on any part of a flood control lot, other than a part of the lot that the council or a professional engineer who specialises in hydraulic engineering has certified, for the purposes of the issue of the relevant complying development certificate, as not being any of the following - (a) a flood storage area, (b) a floodway area, (c) a flow path, (d) a high hazard area, (e) a high risk area. (2) If complying development under this code is carried out on any part of a flood control lot, the following development standards also apply in addition to any other development standards - (a) if there is a minimum floor level adopted in a development control plan by the relevant council for the lot, the development must not cause any habitable room in the dwelling house to have a floor level lower than that floor level, (b) any part of the dwelling house or any attached development or detached development that is erected at or below the flood planning level is constructed of flood compatible material, (c) any part of the dwelling house and any attached development or detached development that is erected is able to withstand the forces exerted during a flood by water, debris and buoyancy up to the flood planning level (or if an on-site refuge is provided on the lot, the probable maximum flood level), (d) the development must not result in increased flooding elsewhere in the floodplain, (e) the lot must have pedestrian and vehicular access to a readily accessible refuge at a level equal to or higher than the lowest habitable floor level of the dwelling house, (f) vehicular access to the dwelling house will not be inundated by water to a level of more than 0.3m during a 1:100 ARI (average recurrent interval) flood event, (g) the lot must not have any open car parking spaces or carports lower than the level of a 1:20 ARI (average recurrent interval) flood event. (3) The requirements under subclause (2)(c) and (d) are satisfied if a joint report by a professional engineer specialising in hydraulic engineering and a professional engineer specialising in civil engineering states that the requirements are satisfied. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual, unless it is otherwise defined in this Policy. (5) In this clause - flood compatible material means building materials and surface finishes capable of withstanding prolonged immersion in water. flood planning level means - (a) the flood planning level adopted by a local environmental plan applying to the lot, or (b) if a flood planning level is not adopted by a local environmental plan applying to the lot, the flood planning level adopted in a development control plan by the relevant council for the lot. Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005. flow path means a flow path identified in the council's flood study or floodplain risk management study carried out in accordance with the Floodplain Development Manual. high hazard area means a high hazard area identified in the council's flood study or floodplain risk management study carried out in accordance with the Floodplain Development Manual. high risk area means a high risk area identified in the council's flood study or floodplain risk management study carried out in accordance with the Floodplain Development Manual. Note 1 - Council, flood control lot, habitable room and professional engineer are defined in clause 1.5. Note 2 - A section 10.7 certificate from a Council will state whether or not a lot is a flood control lot.
5. The note on page 2 of the Certificate states: "Complying Development is a fast track approval process for straightforward residential, commercial and industrial development (e.g. Granny flats). From 1 July 2021, all Complying Development Certificate applications must be lodged through the online NSW Planning Portal. If the application meets specific criteria it can be determined by a registered certifier. Under Clause 3A.38 of the Codes SEPP 2008 Development must not be carried out on any part of a flood control lot that is considered to be in one of the following exclusionary categories: (a) flood storage area, (b) floodway area, (c) flow path, (d) high hazard area, (e) high risk area. Complying Development may be allowed at this address if none of the five exclusionary categories in the planning information table above are marked "Yes"."
6. The Council raised concerns as to whether, if consent was granted to the application, a Complying Development Certificate could be issued for the construction of a dwelling on the lots without adequate regard being had to flooding.
7. In accordance with the provisions of cl 3.5 of SEPP 2008, because the site is nominated as a flood control lot, the terms of the Housing Code do not apply. In addition, the provisions of cl 3.5(2)(f) also prevent application of SEPP 2008 as vehicular access to a dwelling house constructed on either of the proposed lots will be inundated by water to a level of more than 0.3m during a 1:100 ARI (average recurrent interval) flood event.
8. Further, as advised on the Flood Certificate, three of those categories are nominated, so complying development is not permitted on the site and therefore any development on each of the proposed lots would require submission of a development application to the Council under the current planning controls.

Planning controls

1. The site is zoned R2 Low Density Residential pursuant to the provisions of Wyong Local Environmental Plan 2013 (LEP). The aims of the LEP are: (aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts, (a) to foster economic, environmental and social well being so that Wyong continues to develop as a sustainable and prosperous place to live, work and visit, (b) to encourage a range of housing, employment, recreation, human services and appropriately located tourism-related development in Wyong to meet the existing and future needs of residents and visitors, (c) to promote the efficient and equitable provision of public services, infrastructure and amenities, (d) to provide for a range of local and regional community facilities for recreation, culture, health and education purposes, (e) to apply the principles of ecologically sustainable development to guide future development within Wyong, (f) to conserve, protect and enhance the environmental and cultural heritage (both indigenous and non-indigenous) values of Wyong, (g) to protect areas of high scenic landscape value, (h) to maintain and enhance the existing character, amenity and environmental quality of Wyong, (i) to minimise risk to the community in areas subject to environmental hazards, including flooding, climate change and bush fires, (j) to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas, (k) to encourage development that increases public transport patronage, walking and cycling.
2. Subdivision of the site is permitted with consent pursuant to the provisions of cl 2.6 of the LEP.
3. Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain and enhance the residential amenity and character of the surrounding area. • To provide a residential character commensurate with a low density residential environment.
4. Clause 4.1 of the LEP provides a development standard for minimum subdivision lot size. A minimum lot size of 450m2 applies to the site. Both lots within the proposed subdivision exceed this development standard.
5. Flood planning controls for the site were originally contained in cl 7.2 of the LEP however, on 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 (Flood Planning SEPP) commenced and under the provisions of Sch 1, repealed the provisions of cl 7.2 of the LEP. That same day, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Order 2021) amended the LEP by inserting a new clause, cl 5.21.
6. It is common ground that the savings provision in cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 (Order 2006) does not apply to the Flood Planning SEPP as that instrument is an environmental planning instrument (as distinct from an 'amending order') and it did not have the effect of amending the standard instrument, rather it applied to separate and distinct local environmental plans.
7. In the absence of a savings provision in the Flood Planning SEPP, cl 7.2 of the LEP does not apply and the new cl 5.21 does not apply to or in respect of the application before the Court, as it was made but not determined before the commencement of the amending order.
8. Accordingly, there are no flood planning controls in the LEP that apply to the application.
9. The Wyong Development Control Plan 2013 (DCP) does contain controls that relate to flooding, in particular Chapter 3.3 Floodplain Management. The objectives of the Chapter are: "To minimise the risk to human life and damage to property by controlling development on flood prone land  To apply a performance and merit based approach to all development decisions taking into account ecological, social, engineering safety and environmental considerations to ensure development is appropriate and sustainable  To ensure that the development or use of floodplains waterways and riparian corridors does not adversely impact upon aesthetic, recreational and ecological values  To ensure that all land uses and essential services are appropriately sited and designed in recognition of all potential floods  To promote flood compatible building design that considers requirements for the development of flood prone land and does not adversely impact on adjoining properties  To establish guidelines for the development of flood prone land that are consistent with the NSW Flood Policy and NSW Floodplain Development Manual (2005) and as updated by the associated Floodplain Risk Management Guides."
10. The chapter contains what are said to be prescriptive provisions and, in the case of subdivision of the site, the land is within Precinct 2 which states "If the proposal is to be pursued further, a performance based assessment is to be provided demonstrating that the proposed development is compatible with the flooding characteristics of the site (refer to Section 3.2 and Appendix C)".
11. The terms of section 3.2 require a performance based assessment that addresses the following: "a. is compatible with the established flood hazard of the land. In areas where flood hazard has not been established through previous studies or reports, the flood hazard must be established in accordance with the Floodplain Development Manual. b. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; c. incorporates appropriate measures to manage risk to life and property from flood; d. will not 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; e. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. f. is consistent with the principles of Ecologically Sustainable Development. g. adequately considers the impact of climate change. i. It is to be noted that with regard to climate change, appropriate benchmarks based on the best available current information have been used in producing the flood risk management studies and plans that inform this document. ii. Some prescriptive requirements such as flood planning level requirements may be relaxed if Council can be satisfied that the projected life of the proposed development is for a relatively short-term and therefore does not warrant the imposition of controls that consider impacts beyond the cessation of the proposed development. This will only be considered for uses where the residual risk to the occupation of the development is considered to be low. This may include certain temporary or demountable structures but would not include residential developments. Note 1: The information listed above can be used to justify minor variations to the prescriptive provisions. Appendix C provides further detail with regard to applying the Performance Criteria mentioned above and will need to be addresses in full for large scale proposals and/or significant variations. Note 2: The prescriptive controls have been developed to ensure that proposals that meet the requirements of the relevant Prescriptive Control Schedule will meet the objectives of this Plan. A performance based assessment is likely to involve the submission of independent studies and reports. It is recommended that you should discuss the level of detail required and the likelihood of achieving a successful outcome using a performance based assessment with Council staff using the pre-application process prior to making any decision to purchase and/or develop flood prone land."
12. Appendix C provides Detailed Assessment Criteria for development within the floodplain and whilst the LEP does not contain specific provisions, the provisions contained within the DCP do guide determination of the application. Of particular relevance are: "a Compatibility with established Flood Hazard/Flooding Impacts and Behaviour: …. ii flood behaviour (for example flood depths reached, flood flow velocities, flood hazard, rate of rise of flood water); iii duration of flooding for a full range of events;…. v freeboard;… vii depth and velocity of flood waters for relative flood event; c Manage Risk to Life: i the proposed development should not result in any increased risk to human life; ii controls for risk to life up to the Flood Planning Level; iii controls for risk to life for floods greater than the Flood Planning Level;….. vii effective flood access and evacuation issues; viii flood readiness - Methods to ensure relative flood information is available to current and future occupants and visitors; d Warning and Evacuation: i available effective warning time and reliable access for the evacuation of an area potentially affected by floods; ii evacuation should be consistent with any relevant or flood evacuation strategy where in existence; iii depth and velocity of flood waters for relative flood event;…. vi effective flood access and evacuation issues; vii flood readiness - methods to ensure relative flood information in available to current and future occupants and visitors. f The cost i the additional economic and social costs that may arise from damage to property from flooding should not be greater than that which can be reasonably be managed by the property owner and general community;… vi servicing the development safely in flood e.g. potable water, sewer, etc. g Ecological Sustainable Development: Proposed development must be consistent with ESD principles including but not limited to: h Climate Change: i the proposal adequately consider the impact of climate change. It is to be noted that with regard to climate change appropriate benchmarks based on the best available current information have been used in producing the flood risk management studies and plans that inform this document. I Emergency Services i development will not unduly increase dependency on emergency services."
13. The Coastal Management Act 2016 and State Environmental Planning Policy (Coastal Management) 2018 apply to the site however there are no contentions that relate to these provisions. I accept the agreed position of the parties that there are no issues which I must have regard to under such legislation.
14. State Environmental Planning Policy No 55 - Remediation of Land (SEPP55) applies to the site and it is the agreed position of the parties that the investigations conducted satisfy the provisions of the policy and, as required under cl 7, the site is suitable for the proposed development. I accept that proposition.
15. The Council has exhibited a planning proposal for the Draft Central Coast Local Environmental Plan 2018. The purpose of the plan is to consolidate the planning controls contained within the environmental planning instruments for the former Gosford and Wyong Councils into one instrument. There are no changes that affect the site for the purposes of this application. The Council advises the same minimum lot size will apply. When exhibited, the plan contained the former cl 7.2 Flood Planning provisions and, in accordance with the provisions of Order 2006, the new plan, when made will contain the new provisions of cl 5.21.
16. Other documents relevant to determination of the application are the Council's Wyong River Catchment Floodplain Risk Management Study and Plan, the NSW State Emergency Service Wyong Shire Local Flood Plan, NSW State Emergency Service Home Emergency Plan 2021, and the NSW Floodplain Development Manual 2005.

The contentions

1. The contentions in the case are that the site is not suitable for the proposed development due to the risks associated with flooding and the proposal is not compatible with the constraints of the site, and is therefore not in the public interest.
2. Whilst the Council does not object to the principle of the land being subdivided, it submits that it should only be allowed with the provision of a right of footway across adjoining land that would allow for evacuation of the site when the proposed driveway access to the site makes it unsafe to enter Marathon Street.
3. This is consistent with an earlier decision in this Court in Gardiner v Central Coast Council [2020] NSWLEC 1077 which granted consent to a similar subdivision with a deferred commencement condition as follows: "Prior to the consent being operational the applicant is required to submit to Council documentary evidence confirming, to the satisfaction of the Council, the registration of the 0.9m Emergency Right of Footway Easement over Lot 341 DP 557761 No. 15 Leppington Street Wyong to benefit proposed lots 1 and 2 in the two lot subdivision of Lot 14 Section 2 DP 4361 No 16 Marathon Street Wyong under Development Application No. 1511/2018 - Two Lot Subdivision, Demolition and Associated Works with NSW Land Registry Services. Documentary evidence as requested or the above information must be submitted within twenty four (24) months of the granting of this deferred commencement consent. Commencement of the Consent cannot occur until written approval of the submitted information has been given by Council."
4. The applicant has lodged the subject application with an alternate flood strategy and, rather than provide for any evacuation from the site, other than an early evacuation before the flood waters cut off the site, the application proposes that the residents of any proposed dwelling stay in place during a flood event and wait until the flood waters recede. The Council contends this is not satisfactory and unless the easement is obtained in accordance with the earlier consent, consent should not be granted.

The evidence

1. Expert planning evidence was provided by Ms N Moring for the applicant and Ms T Sharp for the Council.
2. These experts rely on the evidence of flood engineers in relation to suitability and type of essential services, however disagree as to whether or not shelter in place is an appropriate option in a flood event. Ms Moring says it is and Ms Sharp says it is not.
3. Whilst Ms Moring acknowledges that essential services may be impacted to some extent during a significant flood event, she says any dwelling proposed on the new lot can adequately provide for alternative additional services essential to the shelter in place strategy. The creation of one additional residential lot is a minor intensification and does not result in a mass population increase. The use of flood education by way of a site specific flood of evacuation strategy would assist residents and emergency services in a flood event where it is safe to egress the site.
4. Ms Moring says the implementation of flood evacuation and shelter in place strategies, such as safe refuge and established time dependent evacuation route and education of occupants and residents with respect to the flood risk of the area and appropriate response to the risk, is considered to be in the public interest and will improve flood awareness in the community.
5. Ms Sharp says essential services are highly likely to be unavailable during a significant flood event and the creation of the additional allotment in a flood prone area will increase the demand on emergency services and potentially create an undesirable precedent for additional subdivisions within a flood prone area. The new allotment will become isolated during a flood event with no low hazard safe evacuation route. The shelter in place option is not supported by Ms Sharp who believes the demand on emergency services during a flood event will increase putting unreasonable social and economic impost on the community. The intensification of the site has potential to increase the risk of life and damage to property. She says this is likely when people attempt to evacuate the site who are not familiar with the depth and circumstances beyond the site.
6. Ms Sharp acknowledges the DCP does contain controls for the construction of buildings within the floodplain and, if a dwelling was to be constructed on the lots which complied with those controls, she would be satisfied the risk to property could be minimised.
7. Expert engineering evidence was provided by Mr M Dawson for the applicant and Mr A Dewar for the Council. There are not areas of agreement in relation to the proposed development.
8. Mr Dawson says the Wyong Flood Risk Management Plan (FRMP) has a focus of reducing flood hazard and risk, and the proposed application allows for additional protection measures to occupants for shelter in place. He says a strategy, which allows for early evacuation from the site which would cease when the property is inundated, is appropriate. As the site and Marathon Street is subject to a quick increase in flood depth, evacuation while Marathon Street is inundated is not appropriate without additional measures such as flood gauges. Shelter in place should only occur where evacuation cannot be undertaken, except under instruction from the SES or emergency services. Shelter in place would be for a period of approximately 12 hours, where the cut off is approximately 28 hours. He says there is sufficient warning time to evacuate prior to inundation of the site, either self-motivated or assisted by the SES, however evacuation prior to inundation on the site is not part of the strategy.
9. Mr Dewar references numerous examples in previous flood events where residents do not evacuate when requested by emergency services with much historical evidence to suggest that early evacuation by residents cannot be relied on. Whilst he agrees that shelter in place would be for approximately 12 hours, he says the effective warning time would be less than 28 hours as the warning will only be issued once the rainfall gauges reach the trigger values. It would be possible that this time is further reduced if the flooding were to occur in the middle of the night and occupants were sleeping. He considers 12 hours in isolation is unacceptable as, during this time occupants are likely to be under stress and be without essential services such as sewer, power and water. They may not have sufficient food and may be separated from a family. These factors over a sustained period increase the risk of occupants making dangerous decisions such as entering flood waters. Medical emergencies are also of concern.
10. Mr Dewar says that shelter in place is an option in some circumstances, however only in the case of areas that are subject to flash flooding as identified in the Council's documents. This does not apply to the site and as there is no safe evacuation route on Marathon Street away from the site during the peak flood event, he says this will increase the risk to people in a flood event. It may also place a burden on emergency services as a greater number of people will be isolated by floodwater over a sustained period compared to the existing situation. Simile, a greater number of people may require rescue by the emergency services in a flood event. Whilst he agrees that the flood signage proposed along the driveway on the site may be helpful, it cannot be relied on as a guarantee that occupants will not enter flood water when subject to isolation.
11. During cross examination, the merits or otherwise of a proposed right of way at the rear of the site, similar to that previously approved by this Court, was discussed. As the applicant does not except a condition that would impose such a requirement, and, there is an existing consent in place for the subdivision of land in that form, I do not intend to explore that option. It is the position of the Council that unless such an easement was in place, consent should be refused. The applicant continues to rely on its shelter in place option.
12. Mr Dawson recommends that the following services be provided on site to reduce the risk for the shelter in place option. This includes solar panels and battery backup, on-site sewer services should the community system fail, drinking water and rainwater storage, and medical supplies including a defibrillator if deemed necessary by the Council. He says this can be managed through positive covenants and maintenance schedules should be implemented so that all emergency systems would be operational in a flood event.
13. Mr Dewar did not support these strategies and says they are highly reliant on occupants firstly being aware of the need to provide the services and secondly, being vigilant in servicing them. He says there are no studies that support the proposal and for that reason he cannot say it would be best practice in a flood event.

Conclusion and findings

1. Having regard to the evidence and the Council planning documents, I am not satisfied that in the circumstances of the case the site is suitable for subdivision on the basis of a stay in place strategy.
2. Whilst the Council's planning controls do contemplate stay in place in some circumstances, those circumstances do not apply to the site. The proposed conditions proffered by the applicant do not provide a sufficient level of certainty that they can be implemented when a flood event occurs. The success or failure of the draft conditions need to be assessed against the possible risk to life.
3. In considering the strategy, it is necessary to consider similar questions to those raised by Brown C in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315. Whilst that case considered the efficacy of a Plan of Management, some of the questions considered are relevant to this case.
4. Do the requirements of the strategy require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? Can the people the subject of the strategy be reasonably expected to know of its requirements?
5. The strategy relies on too many systems and processes being in place to minimise risk and I have not been convinced that these can and will be successfully implemented, that future occupants of the site will be aware of the requirements or that the education relied on will occur. Who will provide this education? It is not for the Council or the SES. It relies on either a person being aware of the original development consent for subdivision, the restriction to users in place on the title or some other mechanism. I have no answer to this question. Of particular concern is the possibility of a dwelling on the proposed lot being rented and the turnover of tenure increased. There is no evidence that future occupants of the building would be aware of the need to maintain essential services. They are likely to see the signs proposed along the driveway, however may choose to ignore them if, as Mr Dewar says, they are stressed. They may also not understand the risk.
6. Of greatest concern is that the proposal relies on early evacuation and then shelter in place. I am not convinced the strategies suggested by the applicant will not pose risk to life in a flood event.
7. It is common ground that evacuation to Marathon Street cannot be achieved in a safe manner once the roadway is inundated and for that reason, I agree with the Council's submissions that the site is not suitable for the proposed development. The conditions proffered by the applicant are complex and provide no guarantee that when various essential services are required to support the shelter in place option or that occupants will have those services available. Similarly, there is no guarantee that the occupants will be aware of the complex and costly requirements. Nothing in the conditions will ensure the continued maintenance will occur and that factor alone demonstrates the potential risk to life.
8. There are no details of who would be responsible for the ongoing maintenance of the equipment in the event the property was rented, would it be the responsibility of the landlord or the tenant? These are not usual requirements for a resident to undertake and, given that flood events are not a regular event, the likelihood of persons becoming complacent must also be considered.
9. Do the requirements in the strategy require absolute compliance to achieve an acceptable outcome? The stay in place option would require absolute compliance and, as the circumstances of this case relate to risk to life, I am not satisfied that absolute compliance with the strategy would occur during a flood event.
10. Is the strategy enforced as a condition of consent? This application is an application for subdivision of land and, once subdivided, the Council should not have to ensure ongoing compliance with a strategy that safeguards the occupants of the land. The strategy should be self enforcing and I am not satisfied that it is or could be.
11. For these reasons, I cannot be satisfied that the site is suitable for the proposed development and consent should not be granted.
12. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No DA/94/2021 for a two-lot residential subdivision, demolition of a garden shed and removal of one tree is refused. 3. The exhibits, other than exhibit 1 and C, are returned.

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: 10 January 2022