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[2012] NSWLEC 1167
Land and Environment Court (NSW)
2012-05-02
Original judgment source is linked above.
a room or suite of rooms occupied or used as a separate domicile, or
a room or suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile 40Lloyd J summarised some of the relevant cases which conclude that a building will not fit into the second limb of the definition of "dwelling" in the absence of a kitchen, bathroom and laundry facilities. 41His Honour then dealt with the first limb of the definition and found that "the place that a person uses as his domicile does not necessarily have to contain the facilities that one would normally find in a house". 42In Wollongong City Council v Vic Vellar Nominees Pty Ltd (2010) 178 LGERA 445, Biscoe J considered whether a partially constructed dwelling met the definition of an "existing dwelling house". 43His Honour found at [31] that in considering the authorities a dwelling-house has to have not only accommodation for sleeping but kitchen, bathroom and lavatory facilities, if not also laundry facilities. Further at [50] he states that the word "existing" before "dwelling-house" means or emphasises that the dwelling house must be constructed with those facilities, not partially constructed with some of those facilities missing. 44His Honour held at [51] and [52] that "the present state of the building is the relevant state by reason of the use of the word "existing" to describe the dwelling-house .... a de minimus exception that minor things that still need to be done may be no impediment to a conclusion that rooms are a "dwelling" and that the building is an "existing dwelling-house". To that extent the fact for determination involves a question of degree". 45Ms Pearman submits that the "current state the building is not an existing dwelling and has not been a dwelling for some time". 46Mr McCall submits that Vic Vellar is distinguishable from the current case as it involved a different provision for a different purpose in a different planning instrument with different circumstances. The building has been used as a dwelling for a number of years and with "restoration" this use will continue. 47Although Mr Catalano's evidence relies heavily on the building being an "existing dwelling", the agreed position of the structural experts is that the building has no functioning kitchen, bathroom or laundry and is not habitable and considerable works are required for the building to once again be "capable of being used as a separate domicile". The building therefore does not meet the second limb of the definition of "dwelling". While the building has been occupied and used as a separate domicile in the past, this has not occurred since at least 2005. The building therefore does not meet the first limb of the definition of "dwelling". On its facts, I accept Ms Pearman's submission that the building is not an existing dwelling. 48However, other than clarifying the description of the development for which consent is sought, very little turns on the distinction of whether the proposal is "restoration", "repair", "rebuilding" or a "new dwelling". Clause 29(3) of LEP 1992 applies equally to the erection of a building and to the carrying out of work on flood liable land and requires satisfaction of certain criteria. The criteria are relevant to any building or work independent of its use, although clearly residential use of flood liable land is more sensitive due to the issues of safety to people not just to property. It is these criteria that must be satisfied for consent to be granted, which is discussed below.
Flooding 49The flooding experts agree that the site is subject to flooding from the Richmond River and the designated flood hazard across the entire site is HFH. Mr Catalano does not dispute the predicted flood levels at the site, which include a peak flood level of RL3.3 m for the 20 year event, RL 4.4 m for the 100 year event and a Probable Maximum Flood (PMF) of RL8.6 m. 50Flooding at the site can reach depths of up to 1.1 m over the existing floor level in a 100 year ARI and up to 5.3m in extreme (PMF) flood events. Velocities in parts of the site are in excess of 2m/s for both these floods. 51While the experts agree that the floor level requirement for a dwelling is based on a 100 year event plus 500 mm freeboard (RL 4.9m), they disagree on the relevance of the PMF. Mr Collins stated that the site is located at the junction and near a constriction in the Richmond River which results in a significant difference between the 1 in 100 level and the PMF as well a high velocities. He noted that in a PMF the depth of flood would be 5.3m above the existing floor level of the house. He recognised that the 100 year event is the minimum standard but that current best practice requires a consideration of risk to life in all flood events, including the PMF. Due to the deep and fast flowing waters the site is extremely unsafe and dangerous for residential development. 52Mr Catalano stated that the PMF event has an extremely rare occurrence normally considered to have a probability of less than one in one million years. The normal requirement is for houses to be set above the 100 year event with freeboard and it is not uncommon that a PMF would cause over floor flooding. Due to the rarity of such an event, he considered the risks associated with a PMF to be low. 53The experts disagree on the utility of house raising in this location. Mr Collins considered that it may be impractical due to the velocities and large depth of flood possible. He notes that SCARM 2000 (sB.3.4) states that "house raising is a suitable mitigation measure usually only for low hazard areas". In his opinion, any house raising proposal should be supported by a risk assessment and a workable emergency management plan. He held similar opinions about any waterproofing proposal. 54Mr Collins noted that even if the floor level were raised to RL4.9 m to be above the 100 year floor level, there would remain issues with debris and velocity of flow causing structural damage to the house. He did not consider that the wire mesh safety fence proposed by Mr Griffiths to "catch debris" before it hits the house would withstand the debris load or that an alternate construction involving "major engineering works" would normally be used with a house. 55Mr Catalano relies on the house being an "existing dwelling". In which case, there is no requirement that its "restoration" comply with contemporary flood standards. However, he supports voluntary improvements to the house to lesson the flood risk, such as flood proof construction, raising the floor level and the provision of a safety fence. 56Mr Collins and Mr Catalano agree that the Richmond River is not a flash flood event and there is sufficient time to evacuate. However, Mr Collins was concerned that the escape route along the highway north and south of the site is cut off as frequently as 1 in 5 years. The closest higher safe ground is 2 km to the south in Broadwater. Evacuation would be difficult and dangerous and because the highway is cut off early it is likely that every time there was the possibility of a moderate flood event evacuation would be necessary. This would lead to "false alarm" evacuations and ignoring warnings. 57Both experts agree that there is little utility in evacuation plans for individual houses and that these should be prepared on a wider scale to ensure a consistent approach between council, emergency services and the community. However, Mr Collins considered that in the absence of an evacuation plan for Broadwater, if the proposal were to be approved, a requirement for a evacuation plan should be included as a condition. 58Mr Catalano considers that because the house is existing, its "restoration" would not increase the burden on emergency services. Improvement to its structural integrity, waterproofing and house raising would reduce the burden. Mr Collins considered that because the house had been uninhabited for at least seven years there would be an increased burden on emergency services.
Structural 59Mr Spinaze and Mr Griffiths agree that the building is not habitable and that it has no functioning kitchen, bathroom and laundry. 60Mr Spinaze stated that the development application did not provide sufficient detail to understand the extent of the works proposed to "restore" the building to a habitable condition. He had therefore visited the site and prepared a schedule of works which include:
Findings 68The parties agree that development consent is required for the proposed works. The structural experts agree that the house is not habitable and on the extent of works required for it to be capable of being used as a dwelling. These works are extensive and the experts agree that the simplest, most economical and best option to meet Australian standards would be to demolish the structure and to rebuild it. The flooding experts agree on the flood hazard of the site, including the predicted flood levels and velocities. 69The key question before the Court is whether the proposed works satisfy the criteria in cl 29(3) of LEP 1992. Clause 29(3) applies to the carrying out of work and the erection of a building. Whether the works for which consent is sought are classified as "restoration", "rebuild" or a "new building", clause 29(3) is a relevant consideration. 70In assessing the proposal, Mr Catalano relies heavily on the premise that the building is an existing dwelling and that its restoration will maintain or, through works such as raising the floor level, reduce the risk posed by the flood hazard. Mr Collins focuses on the extent of works that are required for the building to once again be used as a dwelling and concludes that, despite these works, a habitable building cannot mitigate the flood hazard of the site. 71In Mr Collins' assessment of the criteria in cl 29(3)(a) and (b), he accepts that the proposed works would not unduly restrict or increase flood waters beyond what the original house would have done. His principle concern is that the proposal will not meet the criteria in cl 29(3)(c) and (d). In his opinion, even with the works, including raising the floor level, the dwelling would not withstand flooding or be adequately flood proofed, even in the 1 in 100 year event. 72Mr Spinaze and Mr Griffiths agree that the "restored dwelling", whether at its original level or at a raised level, is likely to suffer significant damage and possibly collapse in a 100 year flood event. They agree that a barrier may be able to be designed that could withstand the forces and collect or divert debris and logs from the house. However, the final design of such a structure and the implications for the flow characteristics of floodwaters or the level of floodwater have not been assessed and the flooding experts did not consider this option. Furthermore, the wall would not address the impacts of any flood above the 1 in 100 year level, which I accept should also be considered given the characteristics of flooding on the site. Even if the site has no history of significant flooding the potential and consequences of such an event should be assessed. 73Mr Collins is further concerned that as the building has not been habitable for a number of years, if it once again becomes a habitable dwelling it will place increased demands on emergency services. Again, Mr Catalano relies on the premise that the building is an existing dwelling and would have been included in any emergency planning that has occurred. This would appear not to be the case as the Flood Information Enquiry, in the Statements of Evidence of Mr Spinaze and Mr Catalano notes "Existing Site Information Original January 1998 survey - house has not been occupied for a number of years." The evidence of Mr Ison is that he has not lived in the house on a permanent basis since about 1998. 74I therefore accept Mr Collins' evidence. The works proposed in the application, and agreed to by the structural engineers, do not satisfy the criteria in cl 29(c) and (d) of LEP 1992 that the structural characteristics of any building or works..... are capable of withstanding flooding, or that the building is adequately flood proofed. The proposed works would also not be consistent with the objectives of LEP 2012. While the floor level can be conditioned to meet the requirements of the DCP, I am not satisfied that this would ensure adequate safety for the future occupants of a dwelling or protection for the dwelling itself. In considering the FRMP and the amendments resulting from the Study, I find that the site is unsuitable for the proposed development. 75The extent of works proposed and required by conditions, including raising the house, a safety barrier to the road for traffic hazards and a safety barrier for flood hazards, as well as the significant cost likely to be involved are further indication that the site is unsuited to the proposed development.
Order 1.The appeal is dismissed. 2.The development application for proposed restoration works to an existing rural dwelling at 237 Pacific Highway, Broadwater, is refused. 3.The exhibits, except Exhibit 11, may be returned Annelise Tuor Commissioner of the Court
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2012
Ison
Richmond Valley Council
(2010) 178 LGERA 445
(2000) 112 LGERA 85