HPCD Capital No. 2 Pty Ltd v Willoughby City Council

Texts Cited: NSW Government, Child Care Planning Guidelines, September 2021
NSW Government, Floodplain Development Manual, April 2005
Willoughby Development Control Plan 2023

Category: Principal judgment

Parties: HPCD Capital No. 2 Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
K Gerathy (Solicitor) (Respondent)
Solicitors:
Jaku Legal (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/135289

Publication restriction: Nil

JUDGMENT

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the respondent’s deemed refusal of the applicants’ development application DA-2024/12 (Development Application) which sought consent for alterations and additions to an existing building and change of use of land to create a 165 space centre based child care development on land legally described as Lot 11 in Deposited Plan 596489, known as 443 Willoughby Road, Willoughby 2068 NSW (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged by the applicant on 22 January 2024 with the consent of the owner of the Subject Land (see Class 1 Application, tab 1).

4. On 11 April 2024, the applicant commenced these proceedings against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

5. The matter was listed for a conciliation conference under s 34 of the LEC Act. The conciliation was unsuccessful and the conciliation conference terminated and the matter set down for hearing.

The Development Application is amended

6. The evolution of the Development Application is helpfully set out at pars 29 to 34 of the Further Amended Statement of Facts and Contentions filed 12 August 2025 (Amended SOFAC) (Ex 16).

7. It is sufficient to state the applicant was granted leave of the Court to amend its application on 13 December 2024 (December 2024 Amendments) and 22 April 2025 (April 2025 Amendments) prior to the commencement of the hearing on 20 May 2025.

8. During the hearing, the applicant was granted leave to amend its application to include:

9. Updated stormwater plans (Ex G);

10. Letter from Dr Martens dated 2 May 2025 regarding cl 5.21 of the Willoughby Local Environmental Plan 2012 (WLEP) (Ex F);

11. Letter from PMI Engineers dated 21 May 2025 (Ex J);

12. Letter from Tree Wise Men dated 21 May 2025 (Ex K);

13. Root Mapping Report prepared by Tree Wise Men dated 29 May 2025 (Ex M); and

14. Engineering drawings prepared by Stellen Consulting dated 27 May 2025 (Ex N).

15. The Class 1 Application, together with the December 2024 and April 2025 Amendments and those amendments made during the hearing on 22 May and 14 August 2025 (to the extent that documents are not superseded by later amendments) constitute the Amended Development Application.

16. By way of summary, the key elements of the Amended Development Application distinct from the Development Application as lodged include:

17. 130 spaces (reduced from 165);

18. reconfiguration of the lower ground, ground, first and parapet floors;

19. ground floor level raised to be above the probable maximum flood (PMF) level;

20. erection of a solid boundary wall with a minimum of 1.5m in height around the perimeter to protect against overland flow (in addition to other proposed fencing and retaining walls);

21. carrying out of upgrade works to stormwater infrastructure, by upgrading the size of a feeder pipe within Small Street (in the public domain) from 450mm to 600, and upgrading an existing stormwater pit located near the northwest corner of the Subject Land, in Nathan Lane, at the applicant’s cost;

22. retention of “Tree 1 Himalayan Cedar”;

23. works to the existing driveway to install a pop up flood gate, flood sensor and sensor pit, including excavation to an approximate depth of 1.2m; and

24. works to modify ground floor beams to increase height clearance in lower ground floor carpark to 2.3m at the entrance and in specified areas within the lower ground floor basement.

The Subject Land and its context

11. As set out in the Amended SOFAC and oral submissions, the Subject Land:

12. is an irregularly shaped corner lot with an area of 1296m2 with four frontages to Small Street, Tulloh Street, Willoughby Road (being a classified road) and a road reserve associated with an unformed section of Nathan Lane;

13. is zoned RE2 Private Recreation under the WLEP;

14. contains a three storey brick building, presently used as an indoor recreational facility, being the Willoughby Squash Club; and

15. is burdened by a 3.9m drainage easement.

16. The Subject Land is depicted on the following Figure (see Amended SOFAC, p 4);

The site view

13. The Court attended a site view on the morning of the hearing accompanied by the parties. The Court also traversed parts of Tulloh Street, Small Street and Nathan Lane.

Issues

14. The issues raised by the respondent in this matter evolved significantly over the course of the hearing, largely in response to the changing nature of the applicant’s proposal, which in turn attempted to respond to the respondent’s contentions.

15. Multiple iterations of the respondent’s Statement of Facts and Contentions have been filed with leave in these proceedings in response to the amendments to the Development Application. The Amended SOFAC generally identifies the issues remaining in dispute at the conclusion of the hearing (although these were further clarified and refined during the course of the hearing).

16. The issues remaining in dispute can be distilled as follows:

17. Should the Amended Development Application be approved having regard to flooding matters?

18. Should the Amended Development Application be approved having regard to the emergency management measures proposed?

19. Having regard to the facts and evidence in this case, I have determined to approve the Amended Development Application for the reasons set out in this judgment.

Public Submissions

18. The Development Application was publicly notified between 9 February to 1 March 2024. 23 written submissions were received (nine in support with no address provided and the rest in objection). The objections raised concerns including:

19. bulk and scale and inconsistency with adjoining low density residential developments;

20. privacy and acoustic impacts associated with the proposed land use;

21. traffic congestion on the nearby road network and impacts on street parking;

22. the appropriateness of the Subject Land for a child care centre and environmental amenity for children;

23. insufficient provision of car and motorbike parking, compliance of the car park design with the relevant Australian Standard and asserted misrepresentation of available parking on Willoughby Road;

24. potential structural damage to adjoining properties as a consequence of the required works; and

25. failure to make provision for EV charging.

26. The December 2024 Amendments were publicly notified from 23 December 2024 to 31 January 2025. One objection was received which raised concerns including:

27. breach of parking requirements in the Willoughby Development Control Plan 2023 (WDCP);

28. the traffic report accompanying the proposal being out of date and not accounting for the street parking requirements of recently approved residential apartment developments; and

29. nearby apartment development currently experiences parking shortfalls which will be exacerbated by the proposal.

30. The Court also heard from a number of residents at the site view at the commencement of the hearing. These residents generally reiterated the above concerns.

Expert evidence

21. The applicant relies on the expert evidence of Dr Martens (flooding and engineering), Mr Greg Muir (emergency management), Mr Thomas Steal (traffic), Mr Antoun Elias (waste management, Mr Johnathon Wood (town planning), and Mr Peter Castor (arboriculture).

22. The respondent relies on the expert evidence of Ms Collier (flooding and engineering), Mr Michael Lee-Jones (emergency management), Mr Scipio Tam (traffic), Mr Kevin Morgan (waste management), Mr Akshay Bishnoi (town planning), Mr Nicholas Kennedy (arboriculture) and Ms Ellen Hird (engineering).

23. The following joint reports were filed and subsequently tendered at the hearing:

24. Joint Emergency Management Report prepared by Mr Muir and Mr Lee-Joe filed 5 March 2025 (Joint EM Report) (Ex 2);

25. Joint Traffic Report prepared by Mr Steal and Mr Tam filed 6 March 2025 (Joint Traffic Report) (Ex 3);

26. Joint Waste Management Report prepared by Mr Elias and Mr Morgan filed 6 March 2025 (Joint Waste Report) (Ex 4);

27. Joint Flooding Report prepared by Dr Martens and Ms Collier, filed on 25 March 2025 (Joint Flooding Report) (Ex 5);

28. Joint Town Planning Report prepared by Mr Wood and Mr Bishnoi filed 11 March 2025 (Joint Planning Report) (Ex 6);

29. Supplementary Joint Town Planning Report prepared by Mr Wood and Mr Bishnoi filed 6 May 2025 (Supplementary Joint Planning Report) (Ex 7);

30. Joint Arboricultural Report prepared by Mr Castor and Mr Kennedy filed 2 June 2025 (Joint Arboricultural Report) (Ex 17);

31. Joint Engineering Report prepared by Dr Martens and Ms Hird filed 12 June 2025 (Joint Engineering Report) (Ex 18); and

32. Supplementary Joint Traffic and Waste Report prepared by Mr Steal, Mr Tam, Mr Elias and Mr Morgan filed 22 May 2025 (Supplementary Joint Traffic and Waste Report) (Ex H).

The role of the Court on appeal

24. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

…

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

25. Section 8.14(1) of the EPA Act similarly gives the Court broad powers on an appeal against the refusal or deemed refusal of a development application, as follows:

(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

26. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration as are of relevance by a consent authority in determining a development application as follows:

4.15 Evaluation

(cf previous s 79C)

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iv) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(v) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(vi) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

27. Section 4.16 of the EPA Act relevantly provides that:

(1) General A consent authority is to determine a development application by –

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

Legislative and planning framework

28. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Amended Development Application. Pursuant to s 4.6(1) of the RH SEPP, a consent authority must not consent to the carrying out of any development on land unless –

29. it has considered whether the land is contaminated, and

30. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

31. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

32. The parties agree that s 4.6 of the RH SEPP has been appropriately addressed by the Amended Development Application (with contamination being removed as a contention in the Amended SOFAC). In determining the Amended Development Application, I confirm that I have considered the matters listed in s 4.6(1) and (2) of the RH SEPP and am satisfied that the Subject Land will be suitable for the proposed development before the land is used for that purpose having regard to the:

33. Phase 1 Preliminary Site Investigation prepared by Waratah Environmental Consulting dated 7 December 2023 (PSI);

34. Phase 2 Detailed Site Investigation prepared by Waratah Environmental Consulting dated 15 February 2024 (DSI);

35. Hazardous Materials Survey prepared by Waratah Property Inspections dated 7 December 2023;

36. Remediation Action Plan prepared by Waratah Environmental Consulting dated 8 October 2024 (RAP); and

37. Agreed Conditions (see Conditions 1, 10, 39, 40, 57, 59, 61 and 80).

38. Division 17 of Pt 2.3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the Amended Development Application as the Subject Land has a frontage to a classified road. It was not disputed, and I accept that, there is no impediment to the grant of consent to the Amended Development Application having regard to the relevant provisions of the TI SEPP.

39. The applicant relies on the Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering dated 4 December 2024 (Traffic and Parking Assessment), Air Quality Assessment prepared by Benbow Environmental dated 11 October 2024 and Acoustic Report dated 18 December 2023 and letter dated 28 November 2024 both prepared by The Acoustic Group, to demonstrate that, for the purposes of s 2.119 of the TI SEPP:

40. vehicular access to the Subject Land is provided by a road other than Willoughby Road (being the classified road);

41. the safety, efficiency and ongoing operation of Willoughby Road will not be adversely affected by the development as a result of the:

(a) design of the vehicular access to the Subject Land; (b) emission of smoke or dust from the development; or (c) nature, volume or frequency of vehicles using Willoughby Road to gain access to the Subject Land;

3. the development is appropriately located and designed and includes measures to ameliorate potential traffic noise or vehicle emissions within the Subject Land arising from Willoughby Road; and

4. any guidelines issued by the Planning Secretary and published in the Gazette regarding road noise or vibration for the purposes of s 2.120 of the TI SEPP have been considered.

5. The Development Application was referred to Transport for NSW (TfNSW) under s 2.122 of the TI SEPP. TfNSW raised no objection to the proposed development but provided recommendations for requirements to be included in any development consent. These recommendations are incorporated in Condition 2 of the Agreed Conditions.

6. Chapter 3 of the TI SEPP also applies to the Amended Development Application as it seeks consent for a centre-based child care facility. Section 3.23 of TI SEPP relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (Guidelines) in relation to the proposed development.

7. The proposed development’s compliance with the Guidelines has been addressed in the Statement of Environmental Effects prepared by Think Planners dated 20 December 2023 (SEE) (see pp 42-64).

8. It is noted that s 3.1 of Pt 3 of the Guidelines requires consideration of the site selection and location for child care centres. In particular, Consideration C2 requires a consideration of the compatibility of the land use as a child care centre with matters of environmental safety. I note that the respondent has raised compatibility as an issue with respect to flooding and that this matter is dealt with later in this judgment and found to be acceptable.

9. Further, it is noted that s 4.8 of the Guidelines requires consideration of emergency and evacuation procedures. Similarly, the respondent has raised matters of emergency management as an issue that should lead to the refusal of the proposal. This matter is also dealt with later in this judgment and found to be acceptable.

10. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TI SEPP.

11. Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor and outdoor space.

12. The Amended Development Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations 2011 (Education Regulations).

13. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TI SEPP have been considered and addressed.

14. Finally, the Education Regulations provides extensive controls and requirements in addition to those set out in the TI SEPP and WLEP.

15. Compliance with the Education Regulations is assessed at pp 76-78 of the SEE.

16. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application as the Subject Land is located within the Sydney Harbour Catchment. It was not disputed, and I accept that, there is no impediment to the grant of consent to the Amended Development Application having regard to the relevant provisions of the BC SEPP.

17. The applicant submits, and I accept that:

18. For the purposes of s 6.6 of the BC SEPP, the applicant relies on the Stormwater Management Plans prepared by Stellan Consulting dated 3 December 2024 (Stormwater Plans), the Geotechnical report prepared by White Geotechnical Group dated 13 February 2024 (Geotech Report) and the Agreed Conditions (see Conditions 1, 11, 14, 15, 16, 17, 18, 53, 72, 87, 88, 92, 93, 94, 98, 107, 109, 112, 125 and 126) to demonstrate that:

(a) appropriate stormwater management devices will be installed to improve stormwater management within the Subject Land and direct runoff to the existing/upgraded stormwater network; (b) there will be no changes to stormwater quality or quantity and the minor extent to which the proposed development will encounter groundwater (a small area and depth of the lift pit) will have an insignificant impact on the water table; and (c) the development ensures the effect on the quality of water entering a natural waterbody will be as close to possible to neutral or beneficial and the impact on water flow in a natural water body will be minimised.

2. For the purposes of s 6.7 of the BC SEPP, the proposed development relevantly:

(a) keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; and (b) will not have a direct, indirect or cumulative adverse impact on aquatic reserves.

3. For the purposes of s 6.8 of the BC SEPP, the proposed development will not result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody or have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

4. For the purposes of s 6.9 of the BC SEPP, the proposed development will not relevantly affect public access to and from natural waterbodies.

5. For the purposes of s 6.10 of the BC SEPP, the proposed development will not have an adverse environmental impact on any adjacent local government areas.

6. The relevant requirements of Pt 6.2 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.

7. The Subject Land zoned is zoned RE2 Private Recreation under the WLEP. Centre-based child care facilities are permissible in the RE2 zone with consent. The objectives of the RE2 zone to which I have had regard are set out below:

• To enable land to be used for private open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

• To minimise the potential for adverse effects from new development on the amenity of the locality.

47. There are no building height or floor space ratio standards applying to the Subject Land.

48. For the purposes of cl 5.21 of the WLEP relating to flood planning, the parties agree that the Subject Land is within the flood planning area, and the provision therefore applies. Clause 5.21 of the WLEP is extracted below:

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 Flood Risk Management Manual.

Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023.

49. “Flood planning area” (FPA) is relevantly defined in the Flood Risk Management Manual by reference to numerous acronyms and other defined terms. The relevant terms and their definitions and context are extracted below:

| Term | Shortened form | Definition | Context for use/additional information | | Annual exceedance probability | AEP | The chance of a flood of a given or larger size occurring in any one year, usually expressed as a percentage | AEP is generally the preferred terminology. ARI is the historical way of describing a flood event, for example, a 1% AEP flood has a 1% or 1 in 100 chance of being reached or exceeded in any given year | | Defined flood event | DFE | The flood event selected as a general standard for the management of flooding to development | Aims to reduce the frequency of flooding but does not remove all flood risk, for example, in selecting a 1% AEP flood as a DFE you are accepting that there is a 1 in 100 chance that a larger event will occur in any year. This risk is being built into the decision | | Flood planning area | FPA | The area of land below the FPL | The FPA is generally developed based on the FPL for typical residential development. Different types of development may have different FPLs applied within the FPA. In addition development controls will vary across the FPA due to varying flood constraints | | Flood planning level | FPL | The combination of the flood level from the DFE and freeboard selected for FRM purposes | Different FPLs may apply to different types of development Determining the FPL for typical residential development should generally start with a DFE of the 1% AEP flood plus an appropriate freeboard (typically 0.5 m). This assists in determining the FPA | | Flood risk management | FRM | The management od flood risk to communities | |

50. The parties disagree as to whether the proposal can be approved having regard to cl 5.21 of the WLEP which is considered in detail below.

51. For completeness, I note that it was ultimately agreed in the hearing that cl 5.22 relating to special flood considerations does not apply to the Amended Development Application as the Subject Land is within the flood planning area, and therefore not located “between the flood planning area and probably maximum flood” (T 20 May 2025 p 14 line 43-47).

52. Pursuant to cl 6.2 of the WLEP relating to earthworks, the consent authority must consider the matters set out at cl 6.2(3). In determining the Amended Development Application, I confirm that the matters in cl 6.2(3) of the WLEP have been considered having regard to the:

53. Martens Flood Study;

54. Expert evidence provided by the flooding experts;

55. Stormwater Plans;

56. Geotech Report;

57. the PSI;

58. the DSI;

59. the RAP; and

60. the Agreed Conditions.

61. The WDCP applies to the Subject Land. Particularly relevant to the issues in contention at hearing is “Attachment 2 – Technical Standard 2 – floodplain management” (Technical Standard 2) attached to Part I: Stormwater Management in the WDCP. Particularly salient sections of Technical Standard 2 are extracted below and considered in detail later in this judgment:

1.2 Floodplain risk management studies

Willoughby City Council has completed these flood studies and floodplain risk management plans:

Floodplain risk management studies and plan

• Flat Rock Creek

• Sugarloaf Creek

….

Lyall & Associates also assessed local overland flooding in the City of Willoughby area using TUFLOW, a two-dimensional hydraulic computer model. Together with site assessments of the affected properties, areas of local overland flooding were identified. Recommendations from this study are used in the Scotts Creek catchment. All flood studies are available at willoughby.nsw.gov.au.

4 Applications of this technical standard

This technical standard applies to all development that involves construction works on the site and located on private or public flood affected land in the Willoughby local government area. It applies to development where approval is needed and development that is exempt from approval.

Flood affected lands are categorised into main stream flooding and local overland flooding (see Section 2).

If there is insufficient information within Willoughby City Council to determine the flood planning level or the minimum habitable floor level of a flood affected property, development on flood affected land must submit a flood study or overland flow assessment.

The study/assessment should determine the pre and post maximum water levels, depths at critical locations, velocity and extent of the flooding at the property. An experienced civil or hydrological engineer should be consulted.

The development application is also subject to:

Environmental Planning and Assessment Act 1979, Section 79c

NSW Government Floodplain Development Manual 2005

Willoughby Local Environmental Plan

Other applicable planning instruments adopted by Willoughby City Council or NSW Government

The 2005 floodplain development manual defines floodprone lands as lands affected by the Probable Maximum Flood (PMF) – the largest flood that could physically occur in a location. From the perspective of an urban council, it is not feasible or economically desirable to alienate land in these areas from development. However, basement car parking must take this into account due to the risk present.

The flood planning levels adopted for this policy is generally the 1% annual exceedance probability (AEP) event, sometimes known as the 1 in 100 year average recurrence interval (ARI) flood plus a freeboard. This freeboard depends on the type of development, location, land usage and continuing risk.

5 Controls

5.1 General controls

For all development that is flood affected, a flood impact statement as a minimum must be provided to Willoughby City Council. This must be prepared by a suitably qualified engineer in line with the NSW Government’s Floodplain Development Manual and address the various controls.

A detailed flood study is required for sites where Council has no detailed flood study, the footprint of the building is changing or overland flow paths are being altered. All major developments (works other than single dwellings and dual occupancy developments) will require a site specific flood study if the site is a flood affected lot or if the site is adjacent to a major drainage path or mainstream flooding.

To assist in preparing a flood impact statement or a flood study, a flood information certificate is available from Willoughby City Council for most flood affected properties. Details of the fees and application process are available at willoughby.nsw.gov.au.

Willoughby City Council has flood related planning controls for various categories of development within flood affected properties.

…

5.1.5 Alterations and additions in areas subject to local drainage or overland flow

a. minimum floor level for buildings = 1% AEP water level + 300mm or 500mm above existing natural ground

b. minimum floor level for buildings with sensitive use, including hospitals, aged care, childcare and seniors living = 1% AEP water level + 500mm

c. minimum garage floor level including parking spaces within buildings = 1% AEP water level + 100mm

d. construct works on high side of property e. flood proof existing habitable areas where practical

f. flood evacuation route for new works at 1% AEP +300mm level

g. flood impact assessment required

9 Special requirements

Applicants of a development affected by main stream or major drainage flooding must provide satisfactory environmental, hydrological, hydraulics information including on mitigating adverse impacts to Willoughby City Council. It is highly unlikely we will consider structures in areas of high hazard, where depth, velocity and nature of the flow contribute risks to human lives and property damages without satisfactory mitigating measures.

Willoughby City Council will require supporting evidence to show that the development will not increase the hazards or risks to future owners or occupants and to adjoining properties.

For some developments, we may require additional flood planning control such as safe evacuation from the site and flood proofing of the existing structure. We will also consider the cumulative impact and effects of the development to adjoining properties.

Willoughby City Council has adopted the 1% AEP event as the standard flood in this policy. The largest flood that could conceivably occur is known as the probable maximum flood (PMF). The PMF is estimated from the probably maximum precipitation. Some developments may need to consider the effects of the PMF especially if the development may house young children, older people and people who are frail, and if the development is on or near the major drainage system.

Additionally, the effect of climate change has not been included in this standard.

Climate change relates to the generation of greenhouse gases due generally to the activities of humans. An accumulation of such gases in the atmosphere is understood to cause the planet to gradually warm up and bring about changes to the climate. These climatic changes are predicted to have significant impacts on temperature, air quality, sea levels, water temperature, evaporation rates and rainfall intensities.

In the Sydney metropolitan region, current modelling shows a trend towards an increase in both extreme rainfall frequencies and storm events, which increase the severity of the main stream and local overland flow and/or flood.

This means what is currently the 1% AEP (1 in 100 year ARI) rainfall event may become more frequent to say the 1.1% AEP (1 in 90.91 year ARI). This has serious implications for flooding frequencies.

Willoughby City Council may consider imposing a higher flood level than the current flood planning level if the nature and circumstances affecting the development warrants such consideration in the future.

54. I note that compliance with the provisions of the WDCP as they relate to the proposed development generally are set out at pp 68-76 of the SEE.

Should the Amended Development Application be approved having regard to flooding matters?

55. A central matter in dispute between the parties in this matter is whether the proposal is acceptable having regard to flooding matters. This involves both a consideration of cl 5.21 of the WLEP and matters of site suitability generally.

56. In terms of site suitability generally, I accept that the agreed evidence of the town planners that “if the flooding affectation and design response to that affectation (including evacuation strategies and flood warning systems) is acceptable then the site is suitable, and if the flooding affectation and the design response to that flooding is not acceptable, then the site is not suitable for the proposed child care centre” (see Supplementary Joint Planning Report at par 1.13). Therefore, the key issue in this matter in regards to site suitability is whether the proposal is acceptable having regard to flooding and evacuation matters.

57. Starting with flooding considerations in the WLEP, it is important to note that cl 5.21 of the WLEP only applies to “land the consent authority considers to be within the food planning area”.

58. As per the definitions extracted at [49] above, the parties’ flooding experts agree that the FPA for the Subject Land can be derived from the WDCP. Section 4 of Technical Standard 2 – flood plain management (Technical Standard 2) in the WDCP relevantly states that:

The flood planning levels adopted for this policy is generally the 1% annual exceedance probability (AEP) event sometimes known as the 1 in 100 year average recurrence interval (ARI) flood plus a freeboard. The freeboard depends on the type of development, location, land usage and continuing risk.

59. I accept the undisputed agreement of the parties’ flooding experts (see T 22 May 2025 p 206 line 22 – p 207 line 24) that the Subject Land is located within the relevant FPA and that cl 5.21 of the WLEP therefore applies on the basis that:

60. 5.1.5 of Technical Standard 2 relevantly provides that the flood related planning controls for “Alterations and additions in areas subject to local drainage or overland flow” include:

(a) minimum floor level for buildings with sensitive use, including hospitals, aged care, childcare and seniors living = 1% AEP water level + 500mm; and (b) minimum garage floor level = 1% AEP water level + 100mm.

2. The Subject Land has been mapped by Dr Martens in the Supplementary Flood Model prepared by Martens dated 11 March 2025 which is attached to the Joint Flooding Report (Martens Flood Study) at Map 13 as being affected by the 1% AEP without a freeboard (and therefore necessarily falls below the FPL of 1% AEP + freeboard).

3. I will now consider the matters for consideration and satisfaction under cl 5.21 of the WLEP.

Is the development compatible with the flood function and behaviour on the land?

Respondent’s position

61. The respondent relies on the evidence of Ms Collier that the flood function of the Subject Land is a “floodway” and that a childcare centre is not compatible with a floodway. Ms Collier states (Joint Flooding Report par 29), “[i]n this regard, there are very little, if any, compatible land uses with the flood function of a floodway. However, sensitive uses, such as child care, are the very least compatible uses with this flood function”. Ms Collier sets out her reasons for the “floodway” characterisation in the Joint Flooding Report at par 27. The reasons pressed at hearing include:

62. The Subject Land is a former creek that was piped.

63. A relatively large pipe was installed to perform part of the former creek conveyance function (a 1650mm diameter reinforced concrete pipe) in 1976.

64. A drainage easement bisects the site in favour of Willoughby City Council of 3.96m width (shown on the Deposited Plan) and is the subject of a Section 88B instrument dated 5 July 1978.

65. The approved plans for the existing basement carpark… show that it was intended to be left open for both ventilation and flow conveyance. The breeze blocks currently present on the western face of the building appear to have been installed at a later time (possibly to retain ventilation and allow for the passage of flows in larger flood events).

66. The culverts proposed to be placed through the building to address the PMF are “an uncommon solution to a problem that presents itself because it’s a floodway” (T 22 May 2025 p 193 line 36-39).

67. The Flat Rock Creek Catchment Flood Study and Overland Flow Mapping dated August 2018 (2018 Council Flood Study) shows portions of the Subject Land as being mapped as floodway for both the 1% AEP flood and the PMF (see Figure 6.16 Sheet 1 and Figure 6.17 Sheet 1).

68. Ms Collier’s primary concern relates to the flooding of the basement car park where there is a potential for children to be present (for example at drop off and pick up time) and in the outdoor play area on the eastern side of the development if the proposed culverts were to discharge in a flood event. In Ms Collier’s view, there is no safe depth velocity (DV) for young children and infants (see par 31 of the Joint Flooding Report). Further, Ms Collier is of the view that if you were in the car park at the time of flood, the water would come from multiple directions through the gaps in the breezeblocks and down the driveway if the flood barrier was overtopped, resulting in the pathway towards the stairs “being not as straight forward” and “confusing” for a small child (T 21 May 2025 p 112 line 25-44).

69. In Ms Collier’s view, you could have as little as five minutes to evacuate the carpark in a PMF event and five to ten minutes for the 1% AEP event (T22 May 2025 p 263). This is because, in Ms Collier’s opinion, the critical duration for the PMF and 1% AEP events, as expressed in the 2018 Council Flood Study and the 2020 Council Flood Study, are 15 minutes and around 25 minutes respectively. So, in respect of the PMF, “the time from the onset of rain, to the… most amount of rainfall appearing in this location… is about 15 minutes” (T 22 May 2025 p 263 at 22-24). Ms Collier goes on to state that (T 22 May 2025 p 263 line 27-33):

“.. so you might have maybe five minutes in that 15 minute period where you would have a point at which you would have to make a decision as to whether these systems need to be activated manually or they would activate of their own accord, and then as the barrier goes up, if it’s a PMF event, the water is going to be coming in the car park over the breeze blocks that are left open as well as over the basement, so you’ve got water coming through there and it will start to fill up at that particular point, and I so I would say, you know, minutes, like five minutes”.

64. In respect of the 1% AEP event, Ms Collier was of the view you would have five to ten minutes to make some decisions about what to do in the carpark and that people do not behave in a rational manner when there’s an emergency.

65. In this regard, the respondent submits that the proposed development is incompatible with the floodway function of the Subject Land and the Court cannot form the necessary state of satisfaction required by cl 5.21(2)(a) of the WLEP.

Applicant’s position

66. The applicant relies on the evidence of Dr Martens who is of the view that the flood function of the Subject Land should be characterised as “flood storage”, being the hydraulic categorisation in the 1% AEP as per the Flat Rock Creek Floodplain Risk Management Study and Plan TUFLOW model for flood modelling (2020 Council Flood Study) (see Figure B3C, Ex 9 p 1141). In Dr Martens’ view, the flood function of the Subject Land is not a floodway as mapping that indicated a floodway categorisation in the 2018 Flood Study has been superseded by the 2020 Council Flood Study, and further, the appropriate flood event for consideration is the 1% AEP as per the WDCP. Dr Martens further notes that the PMF hydraulic category mapping relied on by Ms Collier was not included in the 2020 Council Flood Study.

67. In respect of the proposed culverts through the building, Dr Martens gave evidence that they will require a “very very significant event to occur before they even operate at all and they’re there for an opportunity which presented itself to pass water between the old floor level and the new floor level” (T 22 May 2025 p 194 line 47-50), and do not therefore indicate the existence of a flood way in and of themselves. Further, Dr Martens gave evidence that it is not reasonable to expect that children will be outside in a flooding event and that “kids are taken inside immediately” at child care centres when it rains. Dr Martens further gave evidence that on a worst case scenario of ten minutes, children would have to be outside for ten minutes in “torrential rainfall… absolutely the worst rain you could ever imagine” to be affected by water discharging from the culverts and there is “no way a child care centre is going to have any kids outside, it’s ridiculous” (T 22 May 2025 p 197 line 32-36).

68. The applicant also relies on the Martens Flood Study which relevantly adopts the 2020 Council Flood Study and concludes (see sections 3 and 4):

69. The proposed flood characteristics are largely consistent with existing conditions, and differences due to the proposed development are negligible.

70. Evacuation is possible through the northeastern exit on the ground floor level in a PMF event.

71. The proposed design renders the ground floor level flood free in the PMF event (with flood proof walls and fencing preventing waters from the rear of the site inundating the floor).

72. The proposed development would have acceptable offsite flood impacts. In the 1% AEP event, Small Street would experience approximately 21mm of flood level increase which will have no material effect on flood hazards over the road and is considered acceptable. In the PMF event, neighbouring property, 6 Tulloh Street, Willoughby, will experience minor increases which will not materially affect the flood affectation of that property as it presently lies below the existing PMF level and will not result in the upper floor becoming newly inundated as a result of the proposal.

73. The proposed development is compatible with the existing floodplain environment.

74. In respect of the basement carpark, the applicant relies on the fact that the proposal has been designed such that the carpark is protected to the 1% AEP + 0.1m flood level via a flood gate at the driveway entrance and waterproofing the carpark to that level (see Joint Flooding Report at par 24). Dr Martens gives evidence in the Joint Flooding Report (par 38(b)) that:

i. There will be ample time to orderly move persons from the carpark to the ground floor should this be required. If the alarm is manually activated after floodwaters are observed to start ponding on the road during extreme rainfall, there would be at least around 30-40 minutes to evacuate if flood water continued to rise. If the alarm is triggered by the flood sensor, then there would be at least 15 minutes to move upstairs if flood waters continued to rise. In a real flood event, these times would be considerably longer given that flooding in Small Street is volume sensitive as it accumulates behind the earthen embankment [at] Hallstrom Park.

ii. No persons moving upstairs would need to enter floodwater, and no children would be exposed to flood water.

70. In oral evidence, Dr Martens clarified that in his view, the warning time before “a flood wave arrive(s) at the Small Street low point is probably about 30 minutes, and that’s the absolute extreme event”, however, accepted that the Flood Evacuation Response Plan (FERP) which forms part of the Amended Development Application, states 15 minutes and that this is because the FERP is a “conservative document to make people make sure they take action” (T 21 May 2025 p 138 line 13-28). Dr Martens further gave evidence that the velocity of these flood waters would be “nearly zero, because the water ponds essentially in Small Street” (T 21 May 2025 p 138 line 42-45). Dr Martens also gave evidence (T 22 May 2025 p 261 29-41) that his timeframes have been derived from the modelling carried out and that while the critical duration is short:

“it takes time for the rainfall to run off and collect, get collected through the catchment and make its way down to the bottom of Small Street… the water then accumulates slowly cause it’s quite a large storage area, is it’s rising reasonably slowly… something like 30 minutes or so before it gets to the crest and the.. barrier then comes up. When the barrier comes up, the flood’s still rising if it’s an extreme flood, there’s still additional time of course at that point.

But in any case, to evacuate the car park in ten minutes is, is a trivial exercise, it’s, it’s a confined space, you can see all the cars, you can get tow or three people down there if you wanted to and you can just assist them up the steps.”

71. The applicant further relies on the mitigation and management measures in the FERP (explored in more detail at [88]-[97]) to demonstrate the development is compatible with the flood function and behaviour of the land.

72. Therefore, the applicant submits that the development, being both the design of the development and the conditions of consent governing its operation, is compatible with the flood function and behaviour of the land, being, relevantly flood storage.

The development is compatible with the flood function of the Subject Land

73. Having regard to the facts and evidence in this case, I am satisfied that the proposed development is compatible with the flood function and behaviour on the Subject Land.

74. In respect of flood function and behaviour, I accept the evidence of Dr Martens that having regard to the most recent flood study commissioned and adopted by the Council, being the 2020 Council Flood Study, the Subject Land is mapped as being part “flood storage” in addition to other areas that are not mapped at all. It is reasonable to rely on the Council’s most recent flood study in preference to the older 2018 Flood Study.

75. Further, this categorisation is consistent with Dr Martens view that the Subject Land is part of the local flood storage, and water flows in very shallow depths down the roadway, at Small Street, and then accumulates at the low point at the intersection of Tulloh and Small Street and it is only in very extreme events like the PMF that the embankment overtops (T 22 May 2025 p 169 16 -27). I note that this view is shared by Ms Collier who gave evidence that the site generally acts as flood storage until events greater than the 1% AEP (T 22 May 2025 p 176 line 9-14).

76. To this end, I accept that the applicant’s submission that the 1% AEP is the appropriate flood event from which to determine flood function, having regard to the agreed view of the flooding experts in this case that the WDCP is the document which sets the flood planning area for this site and the WDCP sets the 1% AEP plus freeboard as the relevant flood planning level.

77. Although I accept Ms Collier’s view that the PMF and other flood events beyond the 1% AEP are relevant and important considerations in assessing whether the proposal should be approved, I am satisfied that the development remains compatible with the flood function of the Subject Land even if the relevant flood event was determined to be the PMF. This is because the PMF has been considered in the Martens Flood Study and the development has been designed to withstand such an event. Further, I accept the evidence of Dr Martens, who has structural engineering expertise, that the building will be able to withstand a PMF event without sustaining structural damage (T 21 May 2025 p 150 line 1-24).

78. In respect of compatibility, I note that it is the “development” which must be compatible under cl 5.21(2) of the WLEP and not merely the land at first instance. The development necessarily includes its siting and design, but also the conditions of consent which will govern its operation, including for example, the requirement to comply with the FERP. The Subject Land is zoned RE2 in which centre based child care facilities are permissible with consent. The proposal for a permissible use cannot be dismissed out of hand and must be considered on its merits. As submitted by the applicant, “the Court must assess the impacts of the development (with all relevant mitigation measures incorporated) to determine whether the development is compatible with flood function and behaviour” (AWS at par 44).

79. I have placed significant weight on the fact that both flooding experts agree that the relevant requirements in section 5.1.5 in Technical Standard 2 have been complied with by this proposal (Joint Flooding Report at par 67). Although I note Ms Collier is of the view that notwithstanding compliance with Technical Standard 2, there remains a risk to life associated with the basement that should be considered under cl 5.21 of the WLEP (Joint Flooding Report at par 67), Technical Standard 2 specifically contemplates sensitive land uses, including childcare, and has set its requirements (including for garage floor levels) with such land uses in mind. It is accepted that this proposal meets those requirements.

80. Whilst compliance with the WDCP is expressly stated in the WDCP itself not to guarantee development consent, I am of the view that compliance with Technical Standard 2 in this case is an appropriate and useful measure, albeit not the only measure, of whether the development is acceptable from a flooding perspective. I have therefore placed material weight on the proposal’s compliance with the WDCP.

81. With respect to the basement specifically, I accept the evidence of Dr Martens that, based on the modelling carried out, there is sufficient time to move persons from the carpark to the ground floor in an orderly fashion should this be required in the event of a significant flood event. This is primarily based on the storage function of the surrounding land that provides additional time before the carpark would flood, in addition to the time provided by the flood barrier following the rise of flood waters. I accept that the measures contained within the FERP (considered further at [88]-[97]) are reasonable to manage the risks in the carpark in the event of a flood event greater than the 1% AEP.

82. Finally with respect to potential impacts from the potential discharge of flood water from the proposed culverts in flood events greater than the 1% AEP in the outdoor play area on the eastern side of the development, I accept the evidence of Dr Martens that children would not be left outside in the torrential rain that would be required to give rise to a flood event beyond the 1% AEP. Ms Collier accepted this position in oral evidence, stating “I think it would be reasonable that you would move children inside in a rainfall event” (see T 22 May 2025 p 260 line 29-39). I am therefore satisfied that the risk in the outdoor play area is sufficiently low that it does not render the proposal incompatible with the flood function and behaviour of the land.

83. I am satisfied that the design of the proposal, which includes the ground floor being located above the PMF level and the carpark being protected to the 1% AEP + 0.1m flood level via a flood gate at the driveway entrance and waterproofing the carpark to that level, in conjunction with the mitigation measures contained within the FERP (compliance with which will be a condition of consent), constitute a development which is compatible with the flood function and behaviour on the land for the purposes of cl 5.21(2)(a) of the WLEP.

Will the development adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties?

84. I accept the agreed position of the flooding experts that the Martens Flood Study demonstrates that although there may be some increases in flood affection on neighbouring properties, these affectations are either limited to the road and not considered to be unreasonable, do not affect structures, or do not result in new flood affectation (for example 6 Tulloh Street is already subject to flooding in the PMF event) (see par 25 of the Joint Flooding Report).

85. I further note that this provision was not expressly pleaded by the respondent in its Amended SOFAC as a reason for refusing the proposal other than to say that adequate evaluation had not yet occurred. The flooding experts then went on to expressly consider offsite impacts having regard to the Martens Flood Study in the Joint Flooding Report, however the Amended SOFAC was not subsequently amended to plead any detrimental increases in flood affectation.

86. Therefore, having regard to the evidence before me in this case and the fact that this provision was not positively pleaded by the respondent as a matter for refusal, I am satisfied that the proposed 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 for the purposes of cl 5.21(2)(b) of the WLEP.

Will the development 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?

87. This provision (found in cl 5.21(2)(c) of the WLEP) has two component parts. The parties’ flooding experts agreed that the second limb, being exceeding the capacity of existing evacuation routes for the surrounding area in the event of a flood, was not a matter for concern with this proposal (T 22 May 2025 p 268 line 13-38). I accept the parties’ flooding evidence on this matter and will therefore only consider the first limb in detail.

88. Central to the consideration of the first limb of cl 5.21(2)(c) of the WLEP, is whether the FERP proposed by the Amended Development Application is adequate to allow the safe occupation and efficient evacuation of people in a flood event. It is useful to extract the agreed position of the flooding experts in respect of the FERP (see par 48 of the Joint Flooding Report), namely that it documents the following key responses during a flood:

89. The carpark flood barrier and alarm system are activated if floodwater is likely to enter the carpark. It is anticipated that the flood barrier would activate on average approximately every ten years (par 55 of the Joint Flooding Report).

90. The carpark is evacuated to the ground floor and access to the carpark is prevented if the flood barrier is raised or floodwater enters the carpark. No cars can enter or exit the carpark at this time.

91. The lift car is moved to the ground floor and deactivated if floodwater enters the carpark of the flood barrier is raised.

92. Parents are notified via the Kidsoft bulk SMS messaging system about flood and access conditions.

93. Alternative access/egress is provided via the Tulloh Street entry if there is water over Small Street preventing access to the carpark.

Respondent’s position

89. The respondent relies on the evidence of Ms Collier whose primary concerns with the FERP include:

90. Although the bulk SMS messaging approach appears to have merit in assisting with advising parents of conditions, the rapid onset of flooding and the nature of flash flooding is such that messages will necessarily be issued after an evacuation has occurred and children and staff are accounted for. It is anticipated that it would be challenging to communicate during an actual emergency (Joint Flooding Report at par 52). This is particularly in circumstances where, when dealing with children at pick up time for example, it is not a straightforward environment to be asking people to take a lot of complex information and then issue that and manage that (T 22 May 2025 p 260 line 6-15).

91. The FERP is an effort to mitigate a risk intentionally created by the development, rather than reducing an existing risk (Joint Flooding Report at par 53).

92. There is no comparative regulation like fire regulations to test the proposed mechanisms (ie the flood sensor and barrier) so maintenance is left in the hands of the operator subject only to conditions of consent (T 22 May 2025 p 246 line 30 – 42). This is inappropriate for a sensitive land use such as a child care centre.

93. Having regard to these concerns, the respondent submits that the Court cannot be satisfied that the proposal will not adversely affect the safe occupation and efficient evacuation of people for the purposes of cl 5.21(2)(c) of the WLEP.

Applicant’s position

91. Conversely, the applicant submits that the proposed management and mitigation measures proposed by the Amended Development Application and set out in the FERP will ensure the safe occupation and efficient evacuation of people in the event of a flood for the purposes of cl 5.21(2)(c) of the WLEP. The applicant relies on the evidence of Dr Martens that:

92. The bulk SMS messaging system is straight forward and simple, taking less than a minute for a message to be issued. It ensures that reliable advice is issued to persons off-site as soon as a flood risk emerges. Further, it would be concurrent with any evacuation of the carpark and would not be challenging because of the automation built into the system, staff training, ready access from the carpark to the ground floor, and the more than likely advanced warning of an extreme weather event (Joint Flooding Report at par 54).

93. The FERP has been prepared in accordance with current industry practice for any development potentially exposed to flood risks. Those risks, low as they may be, are not created by the proposal, but have existed at the current facility without mitigation for nearly half a century (Joint Flooding Report at par 54).

94. Flood barriers are an increasingly common engineering solution to providing protection to carparks, commercial property and basements in NSW (Joint Flooding Report at par 71).

95. The FERP does not propose a traditional “shelter in place” approach as it is not required. There is permanent egress available from the site so you’re not actually sheltering from a flood hazard, you would just be sheltering inside from the rain (T 22 May 2025 p 253 line 35 - p 254 line 1 -7).

96. Child care centres are very controlled environments. Adults picking up children must be registered to collect those children. Registered adults would receive the bulk SMS messages advising them of flooding events and directions for picking up their children in those events (T 22 May 2025 p 257 line 16 to p 258 line 50).

97. Ten minutes to evacuate the car park is a trivially short amount of time and easily undertaken. There will be a PA system blaring out “Evacuate the car park. Evacuate the car park. Leave your car”. You’ll have lights flashing. You’ll have staff going down there. As soon as the alarm is triggered, that all happens automatically, and it can happen earlier if the staff see torrential rain and they see water accumulating in Small Street. They can operate the flood barrier at a much earlier level if them deem it a reasonable thing to do to close the carpark (T 22 May 2025 p 262 line 20-28).

The development will not adversely effect the safe occupation and efficient evacuation of people

92. I accept the evidence of Dr Martens that the design of the proposed development, in conjunction with the management measures set out in the FERP, constitute an appropriate response to manage flood risks at this site.

93. Firstly, I have placed material weight on the fact that the siting of the ground floor level will effectively be above the PMF with access and egress available during any flood event, including the PMF. This means that children and staff are able to enter and leave the centre regardless of a flooding event, and there is no necessity or requirement to “shelter in place” (T 21 May 2025 p 148 line 1-13) other than to shelter inside from the rain. This element of the proposal is a key distinguishing factor from the circumstances in Pankhurst v City of Parramatta Council [2024] NSWLEC 1777. Further, it is not reasonable to refuse the proposal on the assumption that, as was put to Dr Martens, some adults will become hysterical and drive into flood waters in an effort to pick up their children in circumstances where they have been advised of where to pick up their children via automated SMS, and access will remain open at all times of operation (via Tulloh Street).

94. Secondly, I have also placed material weight on:

95. the extensive measures proposed in the FERP, including the:

(a) automated SMS system which will send pre-formulated automatic messages to registered parents and carers who have authority to drop off or collect a child from the centre; (b) operation of the flood barrier; (c) alarm system which will be activated either manually or automatically by the flood level sensors and will include flashing lights and automated messages over the public address system; (d) training of staff; and (e) evacuation drills for staff and children, and

2. the Agreed Conditions which relevantly require compliance with the FERP (Condition 1), compliance with Technical Standard 2 (Condition 19), certification of the flood barrier system prior to Occupation Certificate (OC) (Condition 91), updating of the FERP prior to OC (Condition 111), and the ongoing six monthly testing and maintenance of the stormwater and flood system including six monthly evacuation drills (Condition 125).

3. In my view, the measures set out in the FERP are reasonable and appropriate having regard to the principles in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (Renaldo) and the Agreed Conditions are adequate to ensure insofar as is reasonable, the safe occupation and efficient evacuation of people from the development (noting that evacuation is only required from the carpark in a flooding event).

4. Finally, the primary risk of flooding with this development is flood waters entering the carpark. I have already determined that the timeframes for evacuating the carpark and the proposed measures to achieve this evacuation as set out in the FERP, are adequate in the circumstances. I accept that the flood barrier is a reasonable measure having regard to the facts of this case for the reasons given by Dr Martens and note that it was agreed between the experts that the flood barrier will operate even in a power outage (T 22 May 2025 p 245 line 32-50). Further, the proposed development is for a child care centre. I accept the applicant’s evidence that it is reasonable to assume that children will be supervised by an adult/s at all times in the carpark of a childcare centre such that a child will not be required to navigate a flooding event on their own.

5. Therefore I am satisfied that the proposed development will not adversely affect the safe occupation and efficient evacuation of people for the purposes of cl 5.21(2)(c) of the WLEP.

Does the development incorporate appropriate measures to manage risk to life in the event of a flood?

98. I am satisfied that the proposed development incorporates appropriate measures to manage risk to life in the event of a flood for the purposes of cl 5.21(2)(d) of the WLEP for the same reasons I have set out in relation to cl 5.21(2)(c) above.

Will the development adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses?

99. I accept the evidence of the flooding experts that there are no anticipated adverse effects to the environment or erosion or siltation that would be caused by the development (T 22 May 2025 p 267 line 10-27). Therefore, I am satisfied that 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 for the purposes of cl 5.21(2)(e) of the WLEP.

100. In addition to the matters of satisfaction listed in cl 5.21(2) of the WLEP, subs (3) requires the consideration of specified matters. These matters are considered below.

The impact of the development on projected changes to flood behaviour as a result of climate change

Respondent’s position

101. The projected impacts of climate change and whether the design and proposed operation of the child care centre is adequate to deal with projected climate change was a contested matter between the parties.

102. The respondent relies on the evidence of Ms Collier that:

103. The Martens Flood Study does not explicitly consider the more contemporary recommendations in Australian Rainfall and Runoff (ARR2019) for the consideration of climate change (being those in Version 4.2). Instead, a surrogate allowance for climate change is incorporated in the analysis, using a 30% increase on the 1% AEP rainfall (Joint Flooding Report at par 32).

104. She has concerns regarding the reliability and currency of the analysis done in the 2020 Council Flood Study (which shows lower rainfall than the 2018 Council Flood Study) and that one should add 20% to that data just to bring the figures to the present day. Best practice would dictate picking a higher value or a different design event other than the 1% AEP to make sure you’ve got that design baked in for the future so that it will provide the immunity you’re assuming (T 22 May 2025 p 213 to 214).

105. The assessed 30% might be reasonable to represent a medium term scenario 2060 (ie a 35 year period). However, a 30% addition would not be adequate to represent 1% AEP flood flows for periods beyond a 35 year life and up to a long term scenario to 2100 (ie for a 75 year period, assuming the site becomes operable in 2025) (Joint Flooding Report at par 34).

106. The implications of the rainfall intensity changes associate with climate change are that the high flow bypass culverts will activate in more frequent events (including the 1% AEP event) (Joint Flooding Report at par 35).

107. Climate change projections are also applicable to the estimation of the PMF. To date, there has been limited application in practice of this as up until as recently as August 2024, there had been no guidance in any industry documents to do so (and previous thinking was that the PMF would not be affected by climate change). The implications of increasing the magnitude of the PMF are such that it is possible that the proposed features to manage this risk may be inadequate. Whilst the probability of the PMF occurring is view low, the consequences may be material for children (Joint Flooding Report at par 36).

108. The respondent submits that although the WDCP states that “the effect of climate change has not been included in this standard” (at p 311 of Ex 9), the LEP expressly requires a consideration of the effect of climate change both in the objectives of that clause (cl 5.21(1)(b)) and the consideration provisions (cl 5.21(3)(a)). The WDCP cannot override the WLEP and therefore, it is not enough for the applicant to say it has complied with the WDCP and that is the end of the matter. Further, the respondent does not concede that the WDCP actually does ignores climate change when that the sentence at p 311 is read in context.

109. The respondent further submits that development consent for this proposal, if granted, will operate in perpetuity and it is therefore appropriate to adopt a long-term view when calculating climate change, as Ms Collier has done.

Applicant’s position

105. The applicant relies on the evidence of Dr Martens that:

106. The adopted 30% was taken out of the 2020 Council Flood Study where they considered climate change and had a low range of 10% rainfall intensity and a high range of 30% rainfall intensity. For the purpose of being conservate and being consistent with the 2020 Council Flood Study, the applicant adopted 30% (T 22 May 2025 p 209 at 26-32). It is reasonable to rely on the 2020 Council Flood Study to determine projected rainfall increases from climate change as this is the study Council has adopted as its guide for determining flood planning levels. Further, the imposition of rainfall intensity increases to the PMF is not adopted industry practice and not required by the WDCP. Raising the ground floor to the PMF already significant exceeds the requirement of the WDCP which requires a floor level of 1% AEP + 500mm for alterations and additions.

107. In any case, the only material consequence of any climate change related rainfall intensity, should these become apparent in the coming 40-50 years, which would be around the working life of the child care centre, is that activation of the flood alarm system may become more frequent (Joint Flooding Report at par 38(c)).

108. The primary difference between the flooding experts relates to the time period in which to calculate the effects of climate change. The respondent adopts the long term (say between 2081 and 2100) and applicant adopts a medium term (a period before that) (T 22 May 2025 p 209 line 13-19).

109. The applicant submits that although the WDCP is a document which provides guidance and does not and cannot override the WLEP, the WDCP does inform the WLEP. Chapter 6 of the ARR2019 relied on by Ms Collier states that it provides guidance only and the respondent has not formally adopted this new methodology in the WDCP, noting that the latest amendment of the WDCP was July 2025 (being almost 12 months after the introduction of Ch 6) (see Ex P). In any event, the applicant submits that the Martens Flood Study does include a consideration of climate change based on the 1% AEP plus a 30% increase in rainfall intensity, being consistent with the 2020 Council Flood Study. This modelling demonstrates that there will be no adverse flood impacts on adjoining property under this scenario. Ms Collier is endeavouring to change the flood planning levels specified by the respondent in the 2020 Council Flood Study.

110. Finally, the applicant submits that the assessment required by the new Ch 6 of the ARR2019 is “highly qualitative” and “requires selection of shared socio economic pathways which depend upon how the world is reacting to climate change and the consequential rise in global temperature” and “then requires selection of a period over which that reaction will occur and the application of a formula” (AWS at par 54). Dr Martens gave evidence that his adopted 30% increase is equivalent to applying the formula in the new Ch 6 of the ARR2019 using a medium term scenario which in his view, was appropriate for the likely development of life of a child care centre. The applicant argues that the proposal meets to the requirements of Technical Standard 2, is appropriately designed to withstand a 30% increase in rainfall on top of the 1% AEP to accommodate climate change, and should be approved on its merits.

The impact of the development on projected changes to flood behaviour as a result of climate change has been considered

108. Having regard to the considerable evidence before me in this case, I am satisfied that the impact of the development on projected changes to flood behaviour as a result of climate change has been considered and should not preclude the grant of development consent in this case.

109. I accept the submissions of the applicant that it is reasonable to rely on, and apply, the 2020 Council Flood Study modelled increases in rainfall intensity (see “Figure B5: Impact on Flood Extent of Rainfall Increases, 1% AEP Event, ARR 2019”) to determine the projected changes to flood behaviour as a result of climate change. This is because the 2020 Council Flood Study is the most recent flood study adopted by Council and provides appropriate guidance to determine flood planning levels.

110. The 2020 Council Flood Study expressly states that “flood planning levels are an important tool in floodplain risk management” and goes on to explain the importance of adding a freeboard to “provide reasonable certainty that the reduced flood risk exposure provided by selection of particular flood as the basis of the FPL, is actually provided given the… potential changes due to climate change” (Ex 9, p 1073). Therefore, the flood planning levels adopted, which incorporate freeboards, are expressly derived to provide additional protection for changes due to climate change.

111. I note that the definition of “freeboard” in the WDCP similarly states that a freeboard is “a factor of safety typically used when setting floor levels… to compensate for uncertainties in the estimate of flood levels across the floodplain, such as …and other effects such as “greenhouse” and “climate change” (Ex 9, p 315). As stated above, both experts agree that the proposal meets the relevant requirements of Technical Standard 2.

112. I note that the WDCP does somewhat confusingly state, “the effect of climate change has not been included in this standard”, however, it appears that it must have been to some extent, given the use of freeboards in setting flood planning levels and the 2020 Council Flood Study modelling projected increases in rainfall to account for climate change.

113. In any event, it is not disputed that the effects of climate change have been considered and modelled by the applicant. Rather, the extent of disagreement is to whether sufficient effects from climate change have been calculated.

114. I accept the evidence of Dr Martens that 30% projected increases in rainfall over the 1% AEP event is reasonable in the circumstances. This is because 30% is the maximum increase modelled in the 2020 Council Flood Study and it is, as stated previously, reasonable for an applicant to rely on the most recent studies and guidance adopted by the relevant Council. Further, the 1% AEP event is the defined flood event utilised by the respondent to derive the relevant flood planning level. I accept Dr Martens evidence that it is not reasonable to require applicants to design to rainfall intensity increases to the PMF as this is not adopted industry practice and not required by the WDCP. I note that Ms Collier’s appeared to concede that this is not industry practice, stating that “there has been limited application in practice of this” (Joint Flooding Report at par 36). I also accept that the ground floor has already been designed to the PMF so it is really only the car park where this would be a relevant factor.

115. Although I accept that development consent, if granted, will operate in perpetuity, I also accept that buildings and projects have a design life and it is reasonable to design to a period of approximately 50 years as the applicant has done in this case. This is in circumstances where the ground floor of the development is already at the PMF, the WDCP requirements for this development have been met, and the 2020 Council Flood Study only models the 1% AEP plus up to 30% increases in rainfall. Whilst I accept that Ms Collier would want a development of this nature to meet higher standards and thresholds, it is ultimately not reasonable to require the applicant to go beyond the standards and guidance set by the respondent for this development.

116. Ultimately, having regard to the facts before me, the projected changes to flood behaviour as a result of climate change have been considered by this proposal to an acceptable level, and I am satisfied that the proposal is compatible with the flood function and behaviour of the land and will not adversely affect the safe occupation and efficient evacuation of people having regard to those projected increases in rainfall arising from climate change.

The intended design and scale of buildings resulting from the development

117. The Amended Development Application proposes to generally retain the existing building footprint with modifications and additional outdoor areas. I accept the evidence of Dr Martens that the proposed building design and scale has been incorporated into the flood modelling provided in support of the development (Ex F, p 4).

Whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood

118. I confirm that this matter has been considered having regard to my findings in relation to cl 5.21(2)(c) of the WLEP.

The potential to modify, relocate or remove buildings resulting from the development if the surrounding area is impacted by flooding or coastal erosion

119. The Amended Development Application proposes the modification of an existing building and is considered acceptable having regard to the facts and evidence in this case.

120. Therefore, having regard to the matters above, I am satisfied that the Amended Development Application should be approved having regard to matters of flooding and site suitability under s 4.15(1)(c) of the EPA Act, cl 5.21 of the WLEP, relevant provisions of the Guidelines, and relevant provisions of the WDCP.

Should the Amended Development Application be approved having regard to the emergency management measures proposed?

121. Another matter in dispute between the parties was in relation to emergency management measures. As is clear from the Joint EM Report and oral evidence, the only issue in dispute was whether the secondary emergency safe assembly point requiring those being evacuated to traverse Tulloh Street and the Amended Emergency Management Plan (EMP) are adequate.

Respondent’s position

122. The respondent relies on the evidence of Mr Lee-Joe who states in the Joint EM Report (p 6):

Disagreement:

Council maintain concerns with respect to the nominated safe assembly points with specific regard to the suggested safe assembly point in Tulloh Street due to the location of the safe assembly area itself, the topography to Tulloh Street and in part the use of the public roadway as the safe assembly area.

123. Mr Lee-Joe clarified during oral evidence that:

124. The reference to “Council’s concerns” are in fact, his concerns.

125. The distance from the muster point up to the crest of the hill at the top of Tulloh Street is approximately 200m and the gradient is approximately one in eight. The constant uphill grade of one in eight for approximately 200 metres to reach the crest is going to be difficult when you’re trying to navigate prams and cots up that hill (T 20 May 2025 p 46 line 28-30 and 37-44).

126. The respondent submits that:

127. Mr Muir’s opinion as to the adequacy of the secondary evacuation route is predicated on the incorrect assumption that it is intended to be a secondary action, when in fact the evacuation diagrams indicate this is not the case.

128. The applicant hasn’t grappled with the internal navigation through the stairways to the point where you reach the muster point.

129. The fact that the secondary evacuation route is not intended to be used very often is not the way one approaches emergency management and adopting a conservative and precautionary approach (as Mr Muir concedes is required) the Court would not accept that the EMP and evacuation arrangements are adequate.

Applicants’ position

125. The applicant relies on the following:

126. This is the nominated secondary evacuation route which, pursuant to the EMP, is only to be used when the primary evacuation route to Hallstrom Park cannot be used. This would include, for example, if there was a significant flooding event and a secondary emergency event which meant evacuation was required but could not be achieved via Small Street or there was an emergency event closer to the Small Street entrance/exit such that it was appropriate to evacuate to Tulloh Street.

127. Both experts agreed that the muster point for the secondary evacuation route, being just outside the child care centre on Tulloh Street, was adequate. The only issue in dispute is travelling up Tulloh Street to the safe assembly area from the muster point.

128. There is adequate room up Tulloh Street before you get to Nathan Lane (being the safe assembly area) to stop and assemble if required (T 20 May 2025 p 46 line 9-18).

129. If the circumstances are serious enough to warrant evacuation, emergency services will necessarily be involved (T 20 May 2025 p 44 line 44-50) and emergency services will assist with traversing Tulloh Street from the muster point to the safe assembly area, as was accepted by Mr Lee-Joe (T 20 May 2025 p 47 line 21-29).

130. Mr Muir’s evidence that emergency services would take charge of the evacuations as soon as they arrived and would close traffic on Tulloh Street and Mr Lee Joe’s acceptance that if emergency services have closed the road, there is no safety issue with moving to the safe assembly point (T 20 May 2025 p 49 line 7-30).

131. Mr Lee-Joe was otherwise satisfied that the EMP, in conjunction with the Agreed Conditions, was adequate in the circumstances (T 20 May 2025 p 43 line 5-19).

The emergency management measures proposed are adequate

126. I accept that Tulloh Street is a secondary emergency evacuation route/action as stated in the EMP (Ex 2 p 36) and that the Chief Warden will determine the exit to be used for the evacuation and notify all staff which exit to use (Ex 2, p 38). Given that evacuation to Hallstrom Park is clearly the superior evacuation option due to distance, topography and open space, I accept the applicant’s submission that Tulloh Street will only be used if there is a significant flooding event in conjunction with a secondary emergency which necessitates evacuation, or if the nature of the emergency (in the absence of a flood) necessitates evacuation through Tulloh Street and not Small Street (for example, a chemical spill near access/egress to Small Street).

127. However, I also accept the applicant’s submission that if the emergency meant the centre must evacuate to Tulloh Street, it would be possible and pragmatic to then walk back down to Small Street and Hallstrom Park (unless the emergency meant it was unsafe to traverse Small Street and travel in that direction). This was accepted by Mr Lee-Joe (T 20 May 2025 p 65 line 30-34).

128. In the event that emergency evacuation is required to Tulloh Street and up to Nathan Lane, I accept that this route is inferior to Small Street and Hallstrom Park. However, I accept, as was conceded by Mr Lee-Joe, that it is doable, even if not ideal. I further note that I accept Mr Muir’s evidence and his practical experience dealing with evacuations of child care centres in real emergencies, that it is likely that emergency services would attend in a timely manner and assist with the evacuation process, including, if necessary, closing Tulloh Street so that there was additional room for travelling to the safe assembly area.

129. I note that Mr Lee-Joe did not raise any concerns regarding the internal navigation to gain access to muster points. I am satisfied that those measures are reasonable having regard to the extensive provisions and guidance provided in the EMP, which I find to be reasonable and appropriate having regard to the principles in Renaldo, and noting Condition 35 of the Agreed Conditions requiring the updating of the evacuation diagrams, and Condition 116 which requires the EMP to be regularly reviewed and a copy provided to emergency services.

130. Having regard to the evidence before me in this case, I accept that the emergency management measures proposed, and encapsulated by the EMP, are adequate and reasonable in the circumstances.

Remaining matters

131. One final matter raised by Ms Collier which was not specifically plead by the respondent was in relation to the:

132. structural impacts of the development on the sewer line and drainage line under the existing building on the Subject Land; and

133. condition of the stormwater drainage pipe.

134. Given that this issue was not squarely pleaded by the respondent, Ms Collier candidly accepted that this issue was outside her area of expertise, Dr Martens gave evidence that he did not have any structural concerns as an engineer with this expertise (see Joint Flooding Report par 20), and having regard to Conditions 14-16 and 87), I am satisfied that the Amended Development Application should not be refused having regard to these matters.

135. No merit issues other than those considered above were raised by the respondent in the hearing.

136. I rely on the documents comprising the Amended Development Application and the views of the relevant experts in the Joint EM Report, Joint Traffic Report, Joint Waste Report, Joint Planning Report, Supplementary Joint Planning Report, Joint Arboricultural Report, Joint Engineering Report and Supplementary Joint Traffic and Waste Report. I also rely on the fact that contentions relating to contamination, odour/air quality, pedestrian safety, traffic and parking, traffic generation, waste management, and TfNSW considerations, have all been resolved subject to the Agreed Conditions.

137. The matters listed in s 4.15(1) subs (b), (c) and (e) are considered generally in the SEE.

138. In respect of s 4.15(1)(d) of the EPA Act, as set out at [18]-[20], there were several objections to the proposed development.

139. In respect of the primary concerns raised by residents regarding traffic and parking, I note that I accept that the agreement of the parties that:

140. the proposal is compliant with relevant WDCP parking requirements for child care centres (see Traffic and Parking Assessment at p 12);

141. the measures outlined in the proposed plan of management will be sufficient to ensure that the operation of the site will not result in a overflow of staff car parking onto the surrounding streets (Ex 3, par 3.3.2); and

142. the traffic anticipated to be generated by the proposal has been considered in the Traffic and Parking Assessment and deemed acceptable (see Traffic and Parking Assessment at p 23).

143. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

144. I am further satisfied that all relevant jurisdictional and merit issues have been addressed and there is no impediment to the grant of consent to the Amended Development Application.

Conditions

140. As set out above, the parties have provided Agreed Conditions in the event that development consent is granted to the Amended Development Application. I am satisfied that the Amended Development Application should be approved subject to the Agreed Conditions.

Conclusion

141. Ultimately, I have considered the matters that are required to be considered under s 4.15(1) of the EPA Act (to the extent they are of relevance) and have determined, for the reasons set out above, that the Amended Development Application should be approved.

142. The Court orders that:

143. The appeal is upheld.

144. Development consent is granted to Development Application DA-2024/12, as amended, for alterations and additions to an existing building and change of use to a child care centre for 130 children, on land legally identified as Lot 11 in Deposited Plan 596489, known as 443 Willoughby Road, Willoughby, subject to the conditions in Annexure A.

145. The exhibits are returned, except for Ex 2, 5 and 9.

N Targett

Commissioner of the Court

Annexure A (496 KB, pdf)

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Amendments

19 December 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), as agreed by the Parties, Annexure A is amended at page 4 for the correction of a date for Stormwater Drawing DR-007.