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[2026] NSWLEC 1150
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-26
Walsh C
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Medium Neutral Citation: Garrard Building Pty Ltd v Clarence Valley Council [2026] NSWLEC 1150
Hearing dates: 5-7 August, 14 November 2025
Date of orders: 26 March 2026
Decision date: 26 March 2026
Jurisdiction: Class 1
Before: Walsh C
Decision: The Court directs that:
(1) By 10 April 2026, the parties are to confer and, if possible, agree on the particulars of conditions of consent, which are to reflect the findings of this judgment, and file the agreed conditions.
(2) If the parties are not able to agree on the particulars of conditions of consent by 10 April 2026, each party is to file in Court and serve the party's version of the appropriate conditions with brief notes in support by this date.
(3) Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.
Catchwords: APPEAL — development application — urban release area — land subdivision — community title — flood planning — impacts of landfill on flooding of other land — impacts of climate change on localised flooding with respect to intensity of local rainfall events, wider Clarence River catchment rainfall and sea level rise — reasonableness of adoption of nominated shared socio-economic pathways (SSP) as climate change modelling scenarios — risks to life and safety — reasonableness of reliance on SES for evacuation — implications of and weight to site specific flood emergency response plan — relationship of land filling to local flooding during 2022 flood event — security relating to timely provision of shelter in place flood refuge
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 6.12, 7.2, 7.7, 7.13, 7.16
Environmental Planning and Assessment Act 1979 (NSW), ss 4.46, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Rural Fires Act 1997 (NSW), s 100B
State Emergency and Rescue Management Act 1989 (NSW)
State Emergency Service Act 1989 (NSW)
Water Management Act 2000 (NSW), s 91
Biodiversity Conservation Regulation 2017, cl 7.2
Clarence Valley Local Environmental Plan 2011, cll 5.21, 6.1, 6.2, 7.1, 7.2, 7.8
Maclean Local Environmental Plan 2001
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.9
State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.6
State Environmental Planning Policy (Planning Systems) 2021, Sch 6, s 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.122
Uniform Civil Procedure Rules 2005, Sch 7
Cases Cited: Clifton Yamba Land Pty Ltd v Clarence Valley Council [2025] NSWLEC 1406
New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 113
Texts Cited: Department of Planning, Industry and Environment, Planning Circular PS 21-006 Considering flooding in land use planning: guidance and statutory requirements (14 July 2021)
Department of Planning, Industry and Environment, Planning Circular PS 24-001 Update on addressing flood risk in planning decisions (1 March 2024)
NSW Department of Justice, New South Wales State Emergency Management Plan (December 2018)
Department of Planning, Housing and Infrastructure, Shelter in place guideline for flash flooding (January 2025)
NSW State Emergency Service, Clarence Valley Flood Emergency Sub Plan (17 July 2023)
Category: Principal judgment
Parties: Garrard Building Pty Ltd (Applicant)
Clarence Valley Council (Respondent)
Representation: Counsel:
N Eastman SC (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsden Law Group (Respondent)
File Number(s): 2024/279910
Publication restriction: Nil
COMMISSIONER: These proceedings, brought by Garrard Building Pty Ltd (applicant) under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application number SUB2023/0001 (DA) seeking consent for land subdivision and associated development at 52-54 Miles Street, Yamba (site).
The proposed development is regionally significant development within the meaning of s 2 of Sch 6 to State Environmental Planning Policy (Planning Systems) 2021 as it comprises general development with a capital investment value of more than $30 million. Accordingly, the Northern Regional Planning Panel (NRPP) is the consent authority for the DA. However, under s 8.15(4) of the EPA Act, Clarence Valley Council (Council) is the respondent to the appeal subject to the control and direction of the NRPP.
Yamba is a coastal town located on the southern shore of the Clarence River near its Pacific Ocean mouth. The site sits to the south of Yamba Road, the main through road for Yamba township and main connector road to the west, and the nearby Pacific Motorway access ramps, and the township of Maclean.
The CBD and older part of Yamba are to the east, nearest to the ocean and beaches. A western area of the town has been developing over more recent years which now includes a considerable mall-style shopping precinct (Yamba Fair). The site sits in residentially zoned, although low-lying and flood prone, land between the established eastern and western areas of town.
The site has an area of about 42.5 ha, is rectangular in shape, and involves the following parcels: Lots 46 and 47 DP 751395 and Lot 18 DP 1090409. The site’s northern boundary is Miles Street and it sits between Carrs Drive and Golding Street (which each run north-south towards Yamba Road).
As can be seen in part from the location plan (Figure 1), aligning with the local zoning (see below), residential subdivision approvals have been granted over much of the land to the west of Carrs Drive in the site environs. Moving from north to south, the nominated subdivisions comprise (Council’s statement of facts and contentions Ex 3 par 24):
SUB2014/0016 was approved 24 July 2015 as a 161-lot subdivision at 33 Carrs Drive.
DA2018/0373 was approved on 30 April 2019 as a manufactured home estate comprising 197 dwelling sites at 90 Carrs Drive, immediately west of the site across Carrs Drive.
DA2023/0241 was approved on 6 June 2025, as a manufactured home estate comprising 216 dwelling sites at 120 Cars Drive (also west of the site). This development application was approved by the Land and Environment Court on 6 June 2025 in the course of appeal proceedings, however, after the parties had reached a conciliated agreement under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act): Clifton Yamba Land Pty Ltd as Trustee for Yamba Land Trust v Clarence Valley Council [2025] NSWLEC 1406.
The subdivision developments referenced above as SUB2014/0016 and DA2018/0373 were both well advanced at the time of the hearing’s site inspection.
Other local development of note includes St James Catholic Primary School, which sits at the north-eastern intersection of Carrs Drive and Miles Street, and Grevillea Waters estate to the east of Golding Street. There are also a small number of residences on large lot residential parcels in the site environs.
Figure 1 – Location*, site outlined in red*
The site and its surrounds are located within the West Yamba Urban Release Area (WYURA). WYURA is “currently transitioning from a greenfield area into a residential area consistent with local planning instruments dating back to Maclean Local Environmental Plan 2001 (Amendment No 20) (Ex 3 par 20).
The location of the WYURA, as identified in the Clarence Valley Local Environmental Plan 2011 (CVLEP), is indicated in yellow below, with the site outlined in red.
Figure 2 West Yamba Urban Release Area, site outlined in red (source: Ex p 9)
The strategic merit for residential development on the site, and West Yamba, has previously been tested and determined appropriate via rezoning the West Yamba Area to R1 General Residential, R5 Large Lot Residential and C3 Environmental Management. The rezoning application was considered consistent with the Maclean Local Growth Management Strategy and the Maclean Local Environmental Plan 2001 amendment No.20 was subsequently published in April 2010. The site remains as land identified within the Clarence Valley Urban Growth Area in the NSW Government Department of Planning, Housing and Infrastructure – North Coast Regional Plan 2041. The West Yamba area remains a key part to the Clarence Valley meeting its housing targets to meet the needs of the population provided it is sustainable and responds to natural hazards that apply to the site
Figure 3 - Zoning (source: Ex 3 p 10)
14. Under the Lower Clarence Flood Model Update 2013, the site was mapped as being flood prone, with a 1:100 year flood level (“1% AEP”) of 2.1 m AHD and under Part X of the DCP a corresponding Flood Planning Level (“FPL”) of 3.0 m AHD, including 900 mm freeboard is assigned to the WYURA. The Extreme Flood level (an approximation of the Probable Maximum Flood (“PMF”)) was reported as 3.8 m AHD for the site.
15. Under the Lower Clarence Flood Study Update 2022, adopted by the Respondent in September 2023, the site is mapped as being flood prone with the following flood levels and estimated duration of inundation:
a) 1% AEP (1 in 100 AEP) flood level of 2.1 m AHD (duration of inundation approximately 94 hours);
b) 1% AEP flood level with climate change scenario 1 (“CC1”) (being a rainfall intensity increase of 12.5% and a sea level rise of 0.76 m) of 2.9 m AHD (duration of inundation approximately 94 hours);
c) 1% AEP flood level with climate change scenario 2 (“CC2”) (being a rainfall intensity increase of 21.5% and a sea level rise of 1.09 m) of approximately 3.4 m AHD;
d) 0.2% AEP (1 in 500 AEP) flood level of 3.2 m AHD;
e) Extreme Flood level of 7.1 m AHD (duration of inundation approximately 80 hours).
The site is mapped as being wholly within the Proposed Clarence Valley Development Control flood planning area (exhibited between 16 August 2024 and 23 September 2024). This flood planning area accords with an Interim flood planning level for the site of approximately 3.4 m AHD (being the 1% AEP flood event CC1 event with a freeboard of 0.5 m). Interim flood planning levels commenced in the Respondent’s Development Control Plans on 1 January 2025. The interim flood planning levels will be in force until a new Flood Risk Management Plan is adopted.
The DA as amended seeks consent for community title subdivision to create 277 low density residential lots, one medium density lot (with an indicative yield of 24 dwellings), one commercial development lot (with an indicative layout showing five shops with flood refuge above), one open space reserve lot, one residue lot to be retained by the landowner (with further development potential), three lots for stormwater detention basins and an expanded floodway (to accord with modelling requirements) and one vegetated riparian lot.
The site would be filled to achieve finished building pad levels appropriate for flood planning purposes and to facilitate stormwater drainage (Ex 3 par 17):
Bulk fill to achieve finished pad levels ranging generally from 3.0m to 4.30m Australian Height Datum (“AHD”) to facilitate required floor levels for future residential development and to facilitate stormwater drainage.
A layout plan, also indicating staging, is shown in Figure 4, which also shows road alignments. All roads other than part of Roads 2 and 3 and parts of Miles Street and Carrs Drive would be within the community title subdivision.
Other aspects of the development include: numerous retaining walls, filling of three first order streams and removal of approximately 3 ha of native vegetation.
Figure 4 – Layout plan (source: Ex 3 p 4)
The contentions originally raised by the Council as warranting refusal of the DA reduced significantly with various amendments to the proposal and agreements in relation to conditions. By the time of the hearing, the determinative concerns related to flooding and stormwater related matters. Briefly here, in terms of matters other than flooding and stormwater, I note that lay submissions also raised concerns with regard to pollution, groundwater impacts and biodiversity loss, especially related to land filling and vegetation removal, along with urban design and landscaping concerns.
It is noteworthy that in its technical review of these particular lay submissions, Council generally finds itself in a position where requirements are satisfied either with further documentation provided by the applicant, amendments to the proposal or agreed conditions of consent. I also note that some contentions relating, particularly to potential amenity concerns, but also to urban design were addressed in a joint expert report prepared by town planning experts J Mead (called by the applicant) and G Turisi (called by the Council) and tendered into evidence in these proceedings (Ex 9). In Ex 9, agreement was reached that the amended proposal with agreed conditions was satisfactory in regard to contentions raised or, in the case of a spatial relationship question relating to the local centre configuration, an agreed amendment to the subdivision plan was required. These changes have been incorporated into the proposal now before the Court. I generally accept (here agreeing with Council’s position) that lay submissions in relation to matters (other than flooding and stormwater) have been satisfactorily addressed and require no further attention in this judgement.
As indicated, the key issue in this matter is flooding and related stormwater management. It can be thought of as comprising two somewhat interconnected threads. The first relates to the low-lying nature of the site and potential external impacts given, particularly, the extent of land fill and associated water management related works. An additional round of scrutiny arose, in regard to this topic, in consideration of lay (objector) submissions. A key point in these objections was that filling in the WYURA area was already causing flooding problems, and that more fill will exacerbate this. The concerns raised in lay submissions were based in part at least on significant impacts and damage to property caused by the 2022 flooding events and heightening risks having regard to climate change.
The second thread is that concerned with risk to life and safety associated, in particular, with the evacuation of occupants of the site in flood events (mindful of flooding characteristics and evacuation response settings). But also, as I understood it, the implications for the existing population having regard to the wider area’s capacity to cope.
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
5.21 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 flood function and behaviour on the land, taking into account projected changes as a result of climate change,
(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,
(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.
(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—
(a) is compatible with the flood function and behaviour on the land, and
(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and
(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and
(d) incorporates appropriate measures to manage risk to life in the event of a flood, and
(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—
(a) the impact of the development on projected changes to flood behaviour as a result of climate change,
(b) the intended design and scale of buildings resulting from the development,
(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,
(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.
(5) In this clause—
Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.
flood planning area has the same meaning as it has in the Floodplain Development , .
Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
In reference to the applicable version of cl 5.21(5)’s calling up of the Floodplain Development Manual 2005, I note that both this document and a related document, referenced in the current version of cl 5.21(5), each came into attention in the proceedings. The document called up in current version of cl 5.21(5) is called the Flood Risk Management Manual (June 2023).
Clarence Valley Development Control Plan 2011 (CVDCP) applies to the site. It does include provisions relating to flood planning including accommodation of climate change impacts into flood planning policy affecting the site. Parts D (relating to flood plain management) and Part X (relating to urban release areas) were considerations in the evidence.
There are a number of other policy documents or guidelines that are referenced in their context later in this judgement.
This proposal was subject to a large number of flooding-related objections from lay persons, some of very considerable detail. I heard oral submissions at the commencement of the site inspection and received extended written aids to the objectors’ speaking notes (Ex 2). There were also extended prior written submissions (Ex 7), with flood and stormwater related concerns most prominent in the volumes of documentation provided to the Court. It warrants mention that the submissions of one individual in particular, included highly detailed information, which demonstrated considerable effort and knowledge and warranted substantial technical scrutiny. It also warrants mention that a number of those making submissions had experienced significant hardship as a consequence of the relatively recent 2022 flood events, providing significant evidence of associated effects.
Lay submissions, as a factor in the evaluation of development applications, is a common consideration in this Court and a matter which has been well investigated in the case law. The essential point would be that lay objections of this kind can be supportive to the case being argued by objectors to the extent that the concerns raised are based on rational or justifiable foundations, rather than unjustified fears: Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192] – [195], and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 (New Century Developments).
New Century Developments at [61] points to a need for discernment in evaluation of lay evidence, and to seek objective substantiation (ie rather than “blindly accepting”) such evidence. A practical course to assist in verifying (or otherwise) the substance of lay submissions is through the calling up of assistance from those experts already giving sworn evidence, or otherwise bound, under the Expert Witness Code of Conduct (Schedule 7 - Uniform Civil Procedure Rules 2005 (NSW) (UCPR)). These experts have an overriding duty to assist the Court, impartially, under these rules.
With this in mind, I sought the input of experts already involved in the proceedings and bound by the Expert Witness Code of Conduct to assist in my evaluation of the lay submissions. Most particularly this was from L Collier (called by the Council) and D Martens (called by the applicant) who are civil engineers with specialist knowledge in flood analysis and flood planning, and who also have expertise in stormwater management concerns. I sought that these experts (who I will generally refer to as the flooding experts) attempt to disaggregate the flooding and certain stormwater related issues raised in the lay submissions. In addition to the flooding experts already involved in these proceedings, I sought input from experts from the Council with respect to certain topics that I explain later.
Essentially, a two-step process was followed by the flooding experts as they provided assistance to the Court in regard to synthesising and analysing lay submissions on flooding and related stormwater impacts. The first step provided for the identification of what I might call “outline topics”, as raised in lay submissions. Some of these outline topics were able to be evaluated by the experts based on already existing knowledge. The second involved a more detailed analysis of topics raised in lay submissions which required further modelling. The hearing’s adjournment in August and resumption in November 2025 was essentially to facilitate this second round analysis of lay submission topics.
In relation to the first step, four topics were identified, the first of which involved a number of subtopics. These topics and relevant responses from the experts are outlined below.
The first topic, of what I saw as a reasonable synthesis of flooding-related lay submissions, was essentially about the flood modelling upon which flood impact analysis for the DA was based. This was concerned with the particular assumptions upon which the flood modelling was founded. The subtopics queried how the pre-existing modelling attended to the following factors:
The river entrance conditions;
Storm surges;
Lake Wooleweyah implications (located to the near south of the site); and
Climate change.
While there was considerable explanatory material in relation to each topic, I will outline responses relevantly and only briefly here. In relation to river entrance conditions, the experts agreed that that the Council had sought advice from the relevant government agency, as to which type of river entrance condition they should use, and the principal coastal specialist from that State agency advised on the option to be adopted. In relation to storm surges, among other points, I understood the experts to agree that there would be no material consequential effect. The agreed reasoning was that a storm surge effect is more related to the immediate vicinity of breaking waves and normally located on the open coast rather than at river mouths. In relation to Lake Wooleweyah, there was good evidence that the lake characteristics had been effectively incorporated into the flood model based on observed data in the lake relating to actual flood events when compared with modelling outputs. I will deal with the topic of climate change later, as it is a matter of considerable relevance to the second (more detailed) step in the analysis. It will be seen that there is more to be said on this modelling topic below.
The second lay submissions topic was concerned with the actual impacts of the proposed filling in consideration of both regional flood behaviour and localised stormwater flows. Again, in the interest of (attempts at least of) brevity, I note that this particular topic was the one which was subject to considerable examination on the second day of the hearing (ie before an adjournment). Of most note was a disagreement between the experts in relation to the extent that pre-existing landfill had been factored into the landfill impact analysis in flood modelling.
Regarding the subject development application, the information provided by the applicant regarding stormwater modelling of overland flows across the WYURA included consideration of coincidental occurrence for local stormwater and regional flooding. This modelling indicated that the proposed development would not result in any significant worsening of the existing overland stormwater flooding conditions across the WYURA and was considered to satisfy the Objectives and Controls in Part X – Stormwater Management and Water Quality of the DCP.
I accept the expert evidence before me in relation to these topics. That is to say, I am satisfied that reasonable assumptions have been adopted in regard to river entrance conditions, storm surges, and Lake Wooleweyah implications; and that an appropriate strategic approach to planning for regional flooding and local stormwater management is in play in regard to WYURA. I note that in respect to lay submissions, there were remaining concerns relating to the flood modelling. The concerns can be summarised as:
How WYURA landfill generally was accounted for in modelling (of more direct relevance to lay submissions on the impacts of the 2022 flooding); and
How climate change was factored into the model.
These two concerns sat behind the topics examined in the second step of the analysis of flooding-related lay submissions, which I turn to now.
In accordance with my orders, and essentially under the briefing of the flooding experts, extended further flood modelling was undertaken and analysed by these experts. Their joint report on this additional modelling was marked Ex 13 and covered the following three topics, which for me satisfactorily captured the remaining flooding concerns:
In relation to the 2022 flooding event, to what extent was the flooding experienced by residents (and evident from photographic evidence and oral submissions), resultant from filling within the WYURA (ie the already existing landfill);
Will the proposal cause any detrimental impacts on local flood behaviour; and
What of long term cumulative effects.
I will note that while these concerns were raised in lay submissions, I should acknowledge that Ms Collier had already raised some modelling concerns in the initial joint report of the flooding experts (Ex 8). The material addressed below includes consideration of earlier concerns raised by Ms Collier.
While these questions are easy to document, the examination required considerable further flood and local overland flow modelling. This modelling was undertaken by flood modelling specialists BMT, consultants engaged by the applicant in these proceedings, but which had also done much of the work involved in Council’s own flood review work relating to the Lower Clarence under the NSW government’s Flood Risk Management Process. While I understand that the experts relied on this work of BMT, I note the flooding experts are themselves well regarded specialists, as expressed by both parties, and are well aware of their duty to the Court (Tcpt 07/08/25 95 (15)). I expect and believe they would advise the Court if they were other than satisfied that reasonable steps were taken in the work undertaken by BMT which they rely upon here.
To respond to the three queries identified above (see [44]), seven flood and landfill scenarios were modelled. In Ex 13, they are summarised as follows:
(a) Scenario 1 - Base Case: Representation of the study area conditions prior to any development in WYURA. Based on the 2010 Lidar survey.
(b) Scenario 2 - 2022 Flood Conditions: Approximation of the study area conditions present during the Feb-March 2022 flood. Generally based on the 2023 Lidar survey.
(c) Scenario 3 – Existing 2025 Conditions: Current (2025) conditions. Generally based on the 2023 Lidar survey.
(d) Scenario 4 – Existing 2025 + Recent Approvals: Current (2025) conditions as per Scenario 3 combined with the design of recent Approvals.
(e) Scenario 5 – Proposal: Current (2025) conditions as per Scenario 3 and 4 combined with any approved developments, and the proposed development at Yamba Gardens.
(f) Scenario 6 – Proposal + Carrs Drive Upgrade: As per Scenario 5 combined with the Council approved planned upgrades to Carrs Drive and associated drainage infrastructure.
(g) Scenario 7 – Future WYURA: The proposed future development of WYURA. Includes all approved and proposed developments and associated road and stormwater infrastructure upgrades. This includes a preliminary proposal design for 75 Carrs Drive Yamba located on the north side of Miles Street.
Before considering the expert evidence on flooding, I need to outline how some discretionary points relating to climate change adaptation have been factored into Council’s current modelling and in the analysis of development impacts. It is now common practice in relation to flood planning policy, that adaptation to ongoing climate change be accounted for. Here, I note the need for consideration of projected changes to flood behaviour as a result of climate change, as a requirement under cl 5.21(3)(a) of CVLEP (and other standard instrument local environmental plans).
Some of the relevant parameters were explained to me by the parties and, for example, reference was made to Council’s Lower Clarence Flood Model Update 2022 (prepared by BMT and tendered as Tab 9 to Ex 6). This work revised pre-existing modelling to account for the February/March 2022 flood event. There were also considerable assisting explanations of climate change implications provided by the flooding experts (Tcpt 7/8/25 87-94). I will attempt to outline the relevant points now.
Under State policy, local councils remain “primarily responsible” for flood planning decision making (Department of Planning Circular PS 24-001 Ex 10 p 1). This occurs under the State government’s flood risk management process, with various guidelines at hand, including the Flood Risk Management Manual, mentioned above. The approach to the consideration of flooding increases due to climate change has been informed by definitions adopted by the Intergovernmental Panel on Climate Change (IPCC) (reference Ex 6 folio 867). Today, local councils will elect a relevant “shared socio-economic pathway” (SSP) or climate change scenario, applicable (in this case) to its flooding policy, essentially mindful of IPCC framing commentary. The current terminology is SSP but in the recent past, different terminology was adopted and is at times referenced below. Here I particularly note the reference to CC1 and CC2 adopted in Council’s Lower Clarence Flood Model Update 2022, and referenced above at [13]-[14], and reference to CC-A and CC-B in some of the reporting below. It is possible to correlate the two naming systems. I will adopt the apparently current term SSP and note where different terminology is used.
Relevant to flood planning policy, SSPs need to be assigned individually in regard to rainfall intensity change and sea-level rise questions. These two topics are unrelated, in that sea-level rise is essentially a global phenomenon while rainfall is local context related. The State government does not direct councils on which SSP is to be adopted. However, Ms Collier indicated that the well-known policy guide Australian Rainfall and Runoff (ARR) references SSP2, SSP3 and SSP5 (unhelpfully for explanatory purposes, in this instance, the experts indicated that there is no-relevant SSP4 (Tcpt 7/8/2025 88 (48)). ARR suggests SSP5 be essentially reserved for critical or sensitive infrastructure, and the like, and that for less sensitive development Councils could elect either SSP2 or SSP3.
This first question can be responded to most directly, given it is a point in time query and, although still involving assumptions, is most reliant on historic evidence. Of particular relevance here is LIDAR data, a technology very familiar to these experts. I understand LIDAR (“light, detection and ranging”) as a somewhat recent technology which involves aerial laser-based remote sensing to enable determination of surface heights. The first question involves comparing the results from modelling of Scenarios 1, above (see [47]), the base case based on 2010 LIDAR survey; and Scenario 2 which is an approximation of conditions present in the site environs during the Feb-March 2022 flood.
BMT’s recent mapping for the purposes of expert analysis and consideration in Ex 13 (at Figure IM12.13), is presented by the flooding experts, which for the experts shows “the peak change in flood level arising from filling within the WYURA land release area that had occurred up to the time of the 2022 flood event”. This is a comparison of peak flood impact. The experts find (Ex 13 par 13):
In summary, no significant flood impacts appear to be attributable to filling present within the WYURA at the time of the [2022 flood] event.
The experts note a minor 10-20 mm increase at the intersection of Carrs Drive and Yamba Road. This would not be likely to have affected any residence (Ex 13 par 14). There were also small areas of flood level increase near the north-west corner of the intersection of Carrs Drive and Miles Street, but this was not significant because the location is within the development footprint of the final stage of Yamba Parklands residential housing estate. I assume this means it would be raised in any event as part of this project.
The localised flooding experienced and represented in lay submissions in Golding Street in the vicinity of Grevillea Waters estate was acknowledged by the experts. But there seemed to be no disagreement that this flooding was caused by the extreme local rainfall event which occurred prior to the (regional) river flooding, itself occurring between one and two days later (see also [87]).
The evidence, which I understand accounts fully for pre-existing landfill, indicates that the WYURA area (under then filling conditions) did not materially influence localised impacts of the 2022 floods.
There is further complexity in the analysis of this and the third question as it is concerned with the future and requires modelling to account for climate change-related change in rainfall patterns and sea-level rise. Certain climate change adaptation positions adopted by Council are outlined above (at [50]-[54]). As indicated, I see no reason not to consider these SSP positions adopted by the Council as reasonable applications of climate change risk for flood risk management policy. I now move to the particular views expressed by the experts.
This second question requires flooding-related overland flow modelling associated with the existing 2025 geospatial conditions but also factoring in recent approvals. It is then necessary to compare this with the additional works associated with current proposal development. That is, comparing above-nominated Scenarios 4 and 5.
The experts found that, in summary, the modelling results showed that the proposal is not expected to result in material off-site flood impacts (Ex 13 par 18). They referred to various assumptions and modelling output figures to demonstrate this (Ex 13 pars 19-21):
- Figure IM45.9 (reproduced below in Figure 2) shows the peak change in flood level arising from the proposal under 1%AEP and 1%AEP + CC-A (Council’s adopted climate change scenario for rainfall) conditions with a MHWS Clarence River tailwater. This shows that the proposal does not result in any material off-site impacts (noting where impact is present this is on lands to be set aside as floodway, with the exception of an increase in the flow path on the property to the south west), but rather, results in a minor reduction in flood levels (predominantly 10-20 mm) at properties to the north and south.
- Image IM45.1 (reproduced below in Figure 3) shows the peak change in flood level arising from the proposal under 1%AEP and 1%AEP + CC-A (Council’s adopted climate change scenario for rainfall) conditions with a 5% AEP (20 year ARI) Clarence River flood tailwater. This shows similar results to the MHWS Clarence River tailwater condition described at [19] although the extent of reduction is less.
- Image IM45.103 (reproduced below in Figure 4) shows the peak change in flood level arising from the proposal under 1%AEP + CC-B (most recent ARR 2024 guidance for a median shared socio-economic pathway SSP 2-4.5 and 2090 planning horizon). This shows similar outcomes to those described above at [19]-[20], with some minor increases at the intersection of Carrs Drive and Miles Street, and in the drainage channel at 120 Carrs drive to the west.
I accept the advice of the experts that no material off-site flood impacts can be expected under 1%AEP rainfall event plus the climate change effects on rainfall with Clarence River flooding assumptions, as indicated above.
In saying this, it was clear that there was a reasonable accounting for climate change effects on localised flooding associated with intense rainfall events. Factors exceeding current Council policy provisions were included in modelling. Council’s adopted climate change increase for the 1%AEP design storm is 9.1%. In accordance with a request from Ms Collier (and generally in accord with the most recent Australian Rainfall and Runoff guidance), modelling also provided for a 31% increase in rainfall to the current 1%AEP design storm (Ex 13 Attachment A p 6).
There was, however, an important point of dispute, at least initially, in this line of evidence. There was some disagreement between the experts in relation to how sea level rise was, and should be, factored into the modelling. Ms Collier noted that the new modelling did not directly refer to climate change related sea level rise. However, when the technical report behind the updated flood modelling (Attachment A to Ex 13) was interrogated more closely, Ms Collier came to the conclusion that an appropriate “surrogate” configuration had been factored in. It is documented that the Clarence River Mean High Water Spring (MHWS) tide is 0.654 m (Ex 13 Attachment A p 6). But the modelled events nominated as “concurrent regional” references adoption of a 5% AEP Clarence River regional flood level of 1.316 m AHD. According to Ms Collier this would account for a climate change related sea level rise of about 0.7 m on top of the existing spring tide level (Tcpt 14/11/2025 111 (21)):
So, that would allow for a sea level rise say, out to a period of something of the order, say, 2080 or 2090 under current projections, and that could be used as a surrogate for the sea level rise analysis.
Ms Collier then indicated that she was satisfied there has been an appropriate accounting for sea level rise in the modelling and Dr Martens agreed (Tcpt 14/11/2025 111 (30), (36)).
I accept the advice of the experts that there has been reasonable accounting for surface conditions and factoring in of climate change, both in terms of local rainfall events and regional flooding, and as well in regard to sea level rise, in the modelling outlined in Ex 13. I further accept the advice of the experts that the proposed development (including landfill and proposed approach to runoff management) would not cause detrimental impact on local flood behaviour.
(a) The analysis indicates that the ultimate WYURA should not result in material off-site impacts on residential land (for the scenarios considered). The effect of lifting Carrs Drive will improve road trafficability within Carrs Drive (but not make it completely flood free). The results indicate that peak flood levels within a small section of Golding Street and parts of nearby roads might be slightly lower by of the order of 10-20 mm.
(b) There are areas within the grounds of the St James Catholic Primary School, which is part of the WYURA, where increases of around 100 mm could occur based on the preliminary concept design for future development of 75 Carrs Drive (the property north of Miles Street and west of Carrs Drive). The future development application for 75 Carrs Drive will therefore need to be accompanied by a civil engineering / drainage design and supporting flood study that appropriately mitigates any potential flood impacts.
Guiding policy documents, aside from CVLEP and CVDCVP, which arose in evidence on this topic included the previously mentioned Floodplain Development Manual and Flood Risk Management Manual, along with:
NSW State Emergency Service (2023), Clarence Valley Flood Emergency Sub Plan, Volume 1 endorsed 17 July 2023, Volume 2 updated 5 December 2023, Volume 3 updated February 2024 (CV SES Sub Plan), tendered as Ex 6 Tab 6.
NSW State Emergency Service (2024), Clarence Valley Flood Emergency Sub Plan Vol 3 Chapter 2 Clarence Valley NSW SES Locality Response Arrangements Yamba Sector, updated 26 February 2024 (Yamba SES Response Arrangements), included in Ex 6 Tab 6.
NSW Department of Planning (14 July 2021) Considering Flooding in Land Use Planning: Guidance and Statutory Requirements, Planning circular PS 21-006 (PS 21-006).
NSW Department of Planning (1 March 2024) Update on Addressing Flood Risk in Planning Decisions, Planning circular PS 24-001 (Planning Circular PS 24-001), tendered as Ex 10.
NSW Department of Planning, Housing and Infrastructure (January 2025) Shelter in place guideline for flash flooding (SIP Guide), tendered as Ex 6 Tab 5.
The CV SES Sub Plan indicates its purpose it to set out the multi-agency arrangements for the emergency management of flooding in this Council area. Its auspices are at State government level, and it is written and issued under the authority of the State Emergency and Rescue Management Act 1989 (NSW), the State Emergency Service Act 1989 (NSW) and the NSW State Emergency Management Plan. Yamba SES Response Arrangements provides localised responses to the CV SES Sub Plan.
Planning circular PS 24-001, dated 1 March 2024, was issued following the 2022 NSW Flood Inquiry and recommended that planning authorities apply a risk-based approach to the assessment of flood-affected development applications, mindful of its “flood risk profile” and considering such things as the flood characteristics of the location, the nature and type of development, whether the proposal provides for safe occupation and efficient and effective evacuation in flood events and impacts on the existing community and surrounding properties (p3).
1. Dwellings will have finished floor levels (FFLs) ranging from 3.30 mAHD to 4.60 mAHD, all above the flood planning level (FPL) of 3.24 mAHD, and approximately between the 0.091% AEP (1 in 1,100 year ARI) flood and 0.017% (1 in 6,000 year ARI) extreme flood levels.
2. Residence FFLs will achieve a minimum flood freeboard of 0.56 m to the 1% AEP + climate change allowance for the year 2090.
3. The neighbourhood centre building will have a ground floor level of 3.60 mAHD, which is approximately the 0.056% AEP (1 in 1,800 year) extreme flood level.
4. The neighbourhood centre upper floor level is 7.2 mAHD which is above the PMF level of 7.13 mAHD.
Two evacuation routes are nominated as available for people at risk from flooding, in each case reliant on exit from the site along Carrs Drive. These are:
“ER1” heading westwards out of Yamba to Maclean or the M1; and
“ER2” is eastwards towards the Yamba Bowling Club (the identified Assembly Area/Evacuation Centre CV SES Sub Plan p 47), also noting higher ground in Clarence and Pilot Street in Yamba.
Among other things, the FRA in its evacuation capability assessments outlines time available for evacuation, time required for evacuation, duration of isolation, availability of evacuation triggers, evacuation capabilities during the 2022 flood and a capacity assessment of Yamba Bowling Club. In addition, a capability assessment of the local (site) evacuation facility is provided. A flood risk assessment is then documented, indicating risks and mitigation measures. The FRA then draws conclusions, suggesting alignment with the recommendations of Planning Circular PS 24-001. The FEMP then outlines the flood emergency management planning for the site, noting it as a proposed community title development, and that requirements would be relevantly built into a Community Management Plan.
For me, the key concerns came down to the following six topics which I address in turn below:
Evacuation warning times and triggers;
Reliability and resourcing of warnings;
Community response to warnings including for those with mobility or health concerns;
Carrs Drive as a trafficable emergency evacuation route in flood events;
The capacity for emergency sheltering as proposed; and
Shelter in place.
“…evacuation triggers on page 8 of the BMT West Yamba Flood Evacuation Plan are consistent with the Local Flood Emergency Sub Plan Yamba Sector,”
The reference BMT documentation is at Ex A Tab 21 p 8 and is brief. When the BMT documentation and Yamba Sector Plan are compared it is clear that they generally align, with respect to the evacuation triggers relating to the Clarence River Maclean Gauge. That is, key evacuation triggers are based on BoM flood height predictions on the Maclean Gauge and are correlated to road closures in Yamba. It is not entirely clear what was being asked of SES with this approach. Certainly, there is no approval or endorsement of the flood evacuation plan evident. It might be argued that if there was a position of resistance against the proposal on this site within a flood planning area on flood evacuation grounds it may have been raised by SES given the flood evacuation plan was circulated to it, but I do not in any way rely on this conception.
The FRA and FEMP as now relied upon by the applicant also recognise these Yamba Sector triggers (FRA p 15). In addition, a more detailed examination of “available” triggers, including reference to accommodating the needs of vulnerable residents is provided (FRA Table 9). The FRA also includes a detailed analysis of “time available” (evacuation warning times) and “time required” for evacuation under different scenarios. Triggers relate to Bureau of Meteorology (BoM) advice on target warnings for the trigger water levels at the Maclean Gauge (6 hrs before waters expected to exceed 2.2 mAHD and 24 hrs for flood waters expected to exceed 3.3 mAHD (FRA p 21)).
The particular worst case flood event relating to this topic calculated at a minimum warning times of 8.7 hours for ER1 (to Maclean or the M1) and 28.1 hours for ER2 (to the Yamba Bowling Club). A series of variables are assumed to arrive at required evacuation travel times (to such detail as “door knocking rates”). The calculations modelled both existing dwellings and dwellings with completion of WYURA. Calculated time available for evacuation from warning delivery using ER1 was 4.5 hours (for both existing Yamba dwelling numbers) and 4.9 hours (adding WYURA fully completed); and using ER2 was 18.1 hours (existing dwellings) and 22.2 hours (with WYURA complete). According to the applicant, this indicated sufficient time was available, under the calculated flood event, for evacuation with completion of WYURA.
I did not understand there to be great dispute about evacuation warning times, even including the extended series of triggers documented in the FRA (Table 9). The dispute went beyond time apparently available and focused more on the remaining topics.
The fundamental problem with this development though is it relies upon compliance with an early evacuation strategy that may or may not work and is largely dependent upon the proper and accurate functioning of warning systems that are received then and acted upon by residents in the terms of their human behaviour…
The Clarence Valley Council submission to the NSW Independent Flood Inquiry identified that response activities in the region during the February/March 2022 flood event were hindered by coordination and resourcing constraints at the local SES level.
Dr Martens referred to what would be understood to be the responsibilities of the SES to enact the local flood response system in accordance with the CV SES Sub Plan and Yamba SES Response Arrangements, which includes doorknocking under relevant evacuation triggers. He indicates that increases in volunteer numbers might be thought to increase with population. However, the applicant’s case also relies significantly on its community title aspect and associated attributes. This would provide for, essentially, any consent to the site to bring with it legal requirements for the eventual community management scheme to fund and bring into force, and maintain in perpetuity, the flood management arrangements documented in the FEMP. This includes appointment and training of fire wardens for the site, introduction of a physical PA system for rapid communication with local residents of the flood warning status and that the Local Emergency Facility would be equipped with satellite internet connection for use should there be a breakdown in other communications modes.
In my view, the CV SES Sub Plan and Yamba SES Response Arrangements should be understood as the NSW government response system for Yamba flooding. I think it is reasonable to assume a baseline position that this is applicable to the site and proposal recognising its residential zoning under the statutory scheme. It includes what is deemed as suitable warning arrangements including doorknocking (Yamba SES Response Arrangements (Ex 6 folio 592)). In reference to the 2022 floods, it is reasonable to note two points. First, the relative rarity of this event. Here I note that the Council’s assessment report to the NRPP indicated that the rainfall event in Yamba precipitating the event was “between a 0.2% and 0.5% event, with 522 mm recorded in 30 hours” (Ex 5 Tab 20 p 40). Second, is that while I don’t think evidence was presented to me on what findings the NSW Independent Flood Inquiry made in response to the Council's submissions mentioned above, under the CV SES Sub Plan (p 6) the flood emergency response is a multi-agency activity (eg Police, RFS and even on occasion the military) which should bring a capacity for adaptive response should volunteer numbers be low. The proposed site specific community management scheme based response provides a further safeguard in that respect. On the face of it, this local response system properly enacts a self-funding regime and takes up technical innovation opportunities to improve response capabilities.
There was an exchange of health-related demographic and statistical information between the flooding experts on this topic. Ms Collier found that Yamba was occupied by an “older demographic” (when compared to the State) which was “therefore more vulnerable and potentially at greater risk from suffering from a medical emergency, such as heart attack or stroke” (Ex 8 par 32). Ms Collier’s fear was that the additional population subject to flood risk may stretch medical response resources. Dr Martens correlated the risks of (1) a flood emergency and (2) a medical emergency, finding the likelihood of a coincidence of events as extremely low. Ms Collier’s evidence included reference to a newspaper article suggesting a flood event itself (Murwillumbah 2017) had triggered a fatal health emergency for one person (Ex 8 par 59).
I note the CV SES Sub Plan (p 18) indicates its research shows that most evacuees go to family, friends or commercial accommodation. This is an example of people taking practical responsibility for their individual or family welfare. Generally, in instances where people are aware of a health or mobility condition or a potential need for medical attention, it might be expected that they would naturally take responsibility for this and evacuate at the early trigger point. However, there will always be certain individuals within vulnerable groups who either do not heed warnings or are subject to unexpected health or related accessibility problems. It is self-evident that under the CV SES Sub Plan (and Yamba SES Response Arrangements) the multi-agency arrangements for emergency management would come particularly into play in such instances. The first of the primary goals of the CV SES Sub Plan is the protection and preservation of life. It is notable that, as far as this proposal is concerned, in an instance where road evacuation deadlines are missed and shelter in place is the only option, certain medical emergency equipment would be on hand (see FEMP Ex d Tab 25 p 29). This is considered further below.
As indicated earlier, the FEMP indicates two evacuation routes (ER1 - west towards Maclean, and ER2 - east towards Yamba Bowling Club), both of which rely on Carrs Drive. A concern was raised about vehicle passage across the low point along Carrs Drive during flood events. The low lying land of concern was a distance to the north of the site and outside the WYURA area (near Carrs Drive’s intersection with Harold Tory Drive) but undoubtedly on the evacuation route from the site.
This topic was addressed in the flooding experts’ second joint report (Ex 13), where Dr Martens provided long sectional profiles of Carrs Drive over time, including August 2025 civil works which raised the road in this low area (Ex 13 Fig 8). These 2025 roadworks seem to be significant in increasing the evacuation horizons for the site when compared to the information outlined in Table 8 to the applicant’s flood risk assessment (Ex D Tab 25).
Returning to Ex 13 Fig 8, a series of long sectional overlays are provided over the road centreline level depicting flood levels in different settings, including the full development for WYURA (Scenario 7). The flood event scenarios include, as referenced, both: (1) the “1% AEP + CC (9.1%)” (Council’s 9.1 % adopted climate change scenario), and (2) the “1% AEP + CC (31%)” (most recent ARR 2024 guidance for a shared socio-economic pathway SSP 2-4.5 and 2090 planning horizon, factoring in a 31% local rainfall increase for climate change); each including a concurrent 5% AEP (1 in 20 year AEP) Clarence River tailwater. In Ex 13 (par 30), the experts agree that Carrs Drive would still be trafficable under the more extreme of the two conditions with some shallow overland flows in the northern 130 m.
In her written evidence, Ms Collier raises two further points. The first point, relating to factoring in sea-level rise, I understand to have been addressed with the agreed “surrogate” factor, relating to river tailwater (see [66]). The second point was to recognise that the low area, near Harold Tory Drive, still represents a constraint on access to the subdivision with respect to flooding and that related improvements do not form part of any proposed upgrade works to support the land release (Ex 13 par 31). I further note, Council’s querying of whether centreline levels (along Carrs Drive, as indicated in Figure 8) were a satisfactory indicator of passenger car trafficability in flood events.
The 2025 raising of Carrs Drive in the identified low area near Harold Tory Drive considerably improves evacuation from the site. While, as indicated by Ms Collier, it remains a low area (as represented in the long section at Fig 8), the relevant levels provide for vehicle trafficability consistent with Council policy, and on the evidence exceeding this policy. I am not concerned that the carriageway crossfall away from the centreline would affect trafficability given that crossfalls would only involve a matter of centimetres and evacuating vehicles would naturally look to use the centre and highpoint of a road.
There were two main concerns raised on this topic. The first related to degradation of evacuation route access over time. The second related to the capacities of Yamba Bowling Club for sheltering of evacuees. In relation to the first topic, it seems to me reasonable to understand the Council and/or the State roads authority, depending on areas of responsibility, to take seriously such responsibilities in regard to addressing road degradation. This responsibility is supported by relevant income from rates and as relevant from State or Commonwealth funding should high risk emergency settings emerge.
Ms Collier was concerned about the capacities of the Yamba Bowling Club and its location (at risk from the 1 in 500 AEP flood event) (Ex 8 pars 75-77). Dr Martens indicates (Ex 8 par 83):
The Bowling Club has a capacity to shelter around 1,250 persons. If there are more evacuees than this or an extreme flood is expected to impact the Bowling Club, then the SES would co-ordinate evacuees to move to higher ground. In such circumstances the SES (or the Minister) may use if required, powers under the State Emergency and Rescue Management Act 1989 (NSW) to arrange any further necessary shelter.
As a concept, shelter in place provides for the occupants of, in this case, a residential estate to remain on site during a flood event (in a location above the PMF), as an alternative to evacuation. The policy documents referred to on this topic in the evidence included: NSW Department of Planning, Housing and Infrastructure (January 2025) Shelter in place guideline for flash flooding (SIP Guide). The Floodplain Development Manual also includes certain relevant provisions.
The SIP Guide indicates that “evacuation is the primary emergency management strategy for flooding in NSW”. The SIP Guide indicates that:
When considering shelter in place, consent authorities should take a risk based approach that is informed by the proposal’s scale and establishes controls and mitigation measures that reflect the duration and depth of modelled flooding up to the PMF.
I also note that the flooding experts agree, citing p 2 of the SIP Guide, that it applies to areas where “flash flooding is the only flood risk present at the site and where people can safely shelter above the PMF level” (Ex 8 par 20). I understand that the inference of the reference to the SIP Guide, adopting the position that it only applies where flash flooding is the only flood risk, is that flash flooding, as a shorter term event, would necessarily require only a very limited time for shelter in place to be needed.
Commentary in the Floodplain Development Manual, includes that (Ex Tab 1 folios 42, 59 with 148-9 providing supplementary commentary):
“Private or site specific flood plans or flood emergency response plans written for specific developments and separate from the local flood plan, are ineffectual and should not form the basis of development consent".
While it is the case that the applicant does not propose shelter in place, the proposal does include a considerable shelter in place facility. I generally understand the Council concern to be that the application does rely on a “private or site specific flood plans or flood emergency response plan”; and should it fail to be effective then the result could be shelter in place occurring on the site, including for large flood events, involving considerable time periods.
There are three points I would make in relation to this concern. First, is to note that by way of background, the application’s provision of the shelter in place facility on the site would seem to, in part at least, come forward as a consequence of the findings of the NRPP which would suggest it saw a need for a shelter in place facility on site, as indicated in the second reason for refusal of the DA (Ex 5 folio 219). Second, is to find that to undertake the suggested risk-based approach when addressing flooding in planning decision (as per Ex 10), and in planning decisions more generally, it would be inappropriate to rule out, in all instances, private or site specific flood plans. A risk-based approach would be expected to reasonably consider, along with the flood risk profile (including demographic profile), the characteristics of the proposed development. Third, is that I generally accept the evidence of Dr Martens that the characteristics of the development respond appropriately to the flood risk profile. My reasoning on this last point is as follows.
It is my view that the FEMP (Tab 25 to Ex D), itself, is well founded. It provides for site specific flood warning indicators in terms of early identification of on-ongoing flood risk information in the case of a flood event and general signage about flood risk. The FEMP provides for the triggering of physical alarms on site to inform site occupants of flood conditions. Such steps are concerned with taking practical on-site responsibility for evacuation (considered above), as a backup and support for SES in its emergency function. Further it seems to me that the development is of a scale where it can be reasonably expected that, in consideration of but also beyond the legal requirement, the likelihood of implementation of the FEMP by the community association is high. On this point, I am accepting the evidence of Dr Martens that the concerns in the Floodplain Development Manual relating to private flood emergency response plans can, in certain circumstances, relate less to larger scale residential development, particularly in land zoned for that purpose as part of the statutory scheme. Finally, and mindful of the NRPP findings, the proposed shelter in place facility provides an appropriate fallback should the need unexpectedly arise (again the particulars of the shelter in place arrangements are also well detailed, including arrangements for emergency health care such as defibrillator (Ex D Tab 25 p 28-29). Shelter in place associated risks do not weigh against the application in any significant way.
Section 6.12 of the BC Act: The BDAR sets out the measures that the Applicant proposes to take to avoid or minimise the impact of the proposal, having regard to the strategies and actions set out in s7.1 of the BAM (see pages 42 & 43). The BDAR also specifies a number of biodiversity credits required to offset biodiversity impacts (See Appendix H). 28 b.
Section 7.13(2) of the BC Act: The BDAR assesses the likely impact of the proposal on biodiversity values and concludes it is acceptable (see page 43 and Appendix G). The Respondent has previously taken into consideration those likely impacts as required under s 7.13(2) of the BC Act and also concludes is acceptable.80
Section 7.16(2) of the BC Act. The BDAR identifies the proposal as not likely to have a serious and irreversible impact (SAII) to the identified threated Rotala tripartita species (Rotala) (see from page 36). To assist the consent authority, an independent report prepared by Dr Andrew Benwell, an expert in wetland biology and ecology, was also prepared and is included at Annexure I of the BDAR. This report concludes that it is not likely that the residential development will have a SAII on the Rotala population and that implementation of the habitat management regime will increase the likelihood of the species to persist (page 190).
Pursuant to s 2.48(2) of the TI SEPP, before determining a development application, the consent authority must give written notice to the electricity supply authority and take into consideration any response to that notice. I am advised that due notice has been given and the response from, in this case, Essential Energy has been reflected in proposed consent conditions.
Under s 2.122, the DA is considered ‘traffic generating development’. I am advised that Transport for NSW has been consulted in accordance with requirements and comments factored into the various traffic reports undertaken for the site and in proposed consent conditions.
Clause 5.21 of the CVLEP relates to flood planning and has been introduced above. Clause 5.21(2) provides a series of points with which a consent authority must be satisfied if power to grant consent is to be open to it. A series of matters for consideration in coming to decisions on satisfaction are outlined at cl 5.21(3), which I have duly considered. While these points have been analysed in more detail above, here I confirm I am satisfied with respect to each of these points:
The development is compatible with the flood function and behaviour on the land. This is essentially because the development involves the filling of land to above the flood planning level, which factors in future climate change, to protect future on-site buildings and people. Other aspects of the proposal demonstrate that this land filling does not itself bring unreasonable effects.
The development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties. This topic has been examined extensively in various technical reports, but was examined, particularly, in the second joint report from flooding experts (Ex 13) where up-to-date topographic data was factored into flood modelling. The criteria adopted in this modelling went beyond current Council policy to demonstrate that under more conservative climate change related scenarios no detrimental increases in external flood affectation were expected.
The development will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood. The SES can reasonably be seen as the key agency to coordinate evacuation during flood events on this land which is zoned for residential use under the statutory scheme. In this instance, I also rely on the implementation of the proposed FEMP which presents to me to be of a high standard and would be reasonably expected to be implemented in the circumstances of this case, including the fact of its tenure arrangements as community title development. It has been demonstrated that Carrs Drive provides an efficient evacuation route to Yamba Drive, and as outlined above, I am satisfied that traffic routes and emergency gathering places can accommodate this proposal.
The development incorporates appropriate measures to manage risk to life in the event of a flood. The FEMP includes various systematic commitments to promote site evacuation in reasonable timeframes. There is also capacity to shelter in place within the elevated area of the shelter in place building, which is protected from the PMF event.
The development will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. This is primarily through the proposed plans for construction stage and ongoing stormwater management. Conditions of consent provide for the finalisation of erosion and sediment controls which accord with Council policy, prior to commencement of construction. The proposed stormwater management scheme and floodway area, supplemented by proposed consent conditions address both runoff quality and quantity concerns.
Once the subdivision certificate is released and the lots are created, they are able to be on sold and then the people who are carrying out development on the those lots are not subject to this consent.
It has order making power, it has injunctive sanctions in this Court through a breach of condition 80, it's got even criminal enforcement proceedings it can bring.
This proposal is generally in accordance with the statutory scheme for the site and strategic planning in the region, relating to the provision of additional housing supply and thus aligned with the zone objective of providing for the housing needs of the community.
It seems to me that the flood hazard question has been investigated in a thorough manner by well-regarded experts here, with climate change risk well factored into modelling. I am satisfied that there are reasonable responses to the flooding questions with this proposal. This is in respect to both the flooding-related impacts of the proposed development and in terms of life and safety risks to future residents, and others, during flood events. The considerable and well put concerns raised by numerous objectors, having felt the consequences of the serious 2021 flooding event in Yamba and the lower Clarence, have been considered closely I believe and adequately addressed.
Mindful of various amendments to the proposal and (so far) agreed conditions of consent, the contentions raised by Council as to why the proposal should not warrant the grant of consent have been adequately addressed. The appeal should be upheld, and development consent should be granted to the applications before me, subject to finalised conditions.
It is now my intention to direct that the parties confer and provide to the Court conditions of consent that reflect my findings. This allows for the refinement of the draft conditions provided to the Court by the parties. As soon as the position is clear to me, I will then uphold the appeal and grant development consent subject to the conditions.
The Court directs that:
By 10 April 2026, the parties are to confer and, if possible, agree on the particulars of conditions of consent, which are to reflect the findings of this judgment, and file the agreed conditions.
If the parties are not able to agree on the particulars of conditions of consent by 10 April 2026, each party is to file in Court and serve the party’s version of the appropriate conditions with brief notes in support by this date.
Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.
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Garrard Building Pty Ltd
Clarence Valley Council [2026] NSWLEC 1150
(2003) 127 LGERA 303
(2006) 67 NSWLR 256
Ms Collier in particular assisted the Court in her advice that the work currently before the Court at the time had not satisfactorily dealt with the cumulative impact of all the recent local land filling on stormwater behaviour. The point seemed to be directly related to the concerns raised in lay submissions that pre-existing landfill was already causing impacts on neighbours.
Relevantly, it was agreed that a better understanding of proposed impacts could be gained through more recent ground surveys and additional flood modelling. Subsequently I made orders for this further work to be undertaken and for the experts to review and report back in regard to it. I will turn to this when I examine the second “step” in this analysis of the flooding impact topic.
The third lay submissions topic was concerned with WYURA masterplanning. The concerns included whether there was a WYURA masterplan and in particular whether there was a stormwater masterplan and the question of the adequacy of any such plans. Behind these concerns was again the experience of the 2022 flood event and a sense from objectors that overall planning, including stormwater management planning, was demonstrably inadequate.
It is clear that CVDCP is intended to provide the masterplanning context for WYURA. Part X of CVDCP is entitled Urban Release Area controls. Its nominated purpose is to give guidance on development in release areas under CVLEP (see Part X.4). Schedule X1 is concerned with WYURA and presents as perhaps a typical plan for a release area (Ex 5 folio 419-432). The flooding experts were familiar with the flood planning history but had limited knowledge of the background flooding and stormwater related masterplanning. For this topic, I sought further advice and received an expert report (Ex 12) from B Bancroft and C Dear of Council, each of whom formally agreed to be bound by the expert witness code of conduct under Sch 7 of the Uniform Civil Procedures Rules 2005 bringing, again, an overriding duty to assist the Court impartially under these rules.
For me, Ex 12 provided a useful snapshot of the relevant background and the established provisions. The Northern Rivers Development & Design Manual (NRDC) and CVDCP are relied upon, including sustainable water objectives specified in Part H – Sustainable Water Controls and Part X – Stormwater Management and Water Quality – Objectives and Controls. Generally, a merit based approach to decision making is to be applied, founded on these policies. There is no strategic plan that identified stormwater infrastructure upgrades external to development sites. But a “strategic approach” (Ex 12 par 16) is nonetheless adopted. In reference to the western side of Carrs Drive this has been to not provide onsite detention and to instead allow flows directly to the west and the Oyster Channel. But a different approach was adopted for the subject site, which included onsite detention systems to reduce downstream impacts. The experts advised that it was their view that the modelling accompanying the subject application did factor in coincidental occurrences of local stormwater and regional flooding to demonstrate no significant effects (Ex 12 par 18):
For modelling purposes, in relation to rainfall intensity, here the Council has adopted SSP2 (which has an alignment with CC1). I am aware that there were lay objections suggesting that this was an inappropriate standard to adopt. I understand SSP3 to be more conservative than SSP2. But I see no reason to contest this position adopted by the Council, nor was any expert evidence given to this effect. While Dr Martens suggested that SSP2 was the middle ground (Tcpt 7/8/25 89 (1)), I do not rely on this point. I am more of the view, that unless there are strong and coherent arguments to the contrary, it seems fair that a local council should be able to adopt its own positions in regard to SSPs.
In relation to modelling for sea-level rise (notable in this setting close to the river mouth), the experts agreed that in relevant modelling a more conservative position was adopted than for rainfall intensity. While the direct reasoning as to why it was done so are unclear, the experts agreed that the sea-level rise scenario adopted in the BMT larger scale flood modelling, adopted a sea-level rise figure of 0.76 m, which eventuated to what is now equivalent to SSP5 (Tcpt 7/8/25 94 (23-30)).
I will now move into the three, more detailed, flooding related topics, which flow from the lay submissions.
Clause 6.1 is concerned with arrangements for designated State public infrastructure. In this instance, the Planning Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure. There is no dispute that the Secretary’s certificate has been issued to indicate satisfactory arrangements (Ex B Tab 14). I am satisfied with respect to cl 6.1(2).
Clause 6.2 provides that development consent must not be granted over land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. It is clear that there is a considerable framework for infrastructure provision across various services relating to this land release (JS par 16). There is no dispute raised from Council on this front. I am satisfied with respect to cl 6.2(1). On similar grounds, I am satisfied with respect to cl 7.8.
Clause 7.1 relates to acid sulfate soils and in this instance an Acid Soil Management Plan has been prepared compliance with which would be required as a consent condition.
Clause 7.2 relates to earthworks, which brings a number of matters for consideration before any consent is issued. I have considered these matters and note the suite of reports prepared by the applicant on that front (JS par 17).