Kavanagh v Hawkesbury City Council

Land and Environment Court (NSW)|2019-11-21

Judgment

COMMISSIONER: Stephen Kavanagh (the Applicant) has appealed the refusal by Hawkesbury City Council (the Respondent) of his development application DA0187/17 seeking consent for the construction of a two storey dwelling house with associated works (the Proposed Development) at 30 Bulga Street (also identified as Lot 10 in DP 758924) in St Albans (the Subject Site).
The Applicant's Proposed Development includes the following: 1. construction of a two storey dwelling house; 2. construction of an in-ground swimming pool associated with the dwelling; 3. landscaping and driveway works; 4. an in-ground water tank with a capacity of 10,000 litres; 5. a new septic tank with an associated sewage disposal trench.
The Applicant also seeks retrospective consent for certain unauthorised works to a shed, referred to at the hearing as the "use aspects" of the appeal.
The Subject Site is: 1. Approximately 2,023m² in area; 2. located within the village of St Albans, approximately 100km northwest of Sydney's CBD, on the banks of the Macdonald River, and is zoned RU5 Village under the provisions of Hawkesbury Local Environmental Plan 2012 (HLEP); 3. located on land identified as being bushfire prone; 4. a flood control lot, located in the middle of a floodway; 5. located within the Heritage Conservation Area of St Albans village, and the village itself is identified as being of local heritage significance under HLEP.
It was uncontested that: 1. the existing ground level of the location of the Proposed Development on the Subject Site was 11.9m Australian Height Datum (AHD); 2. the 1 in 100 year Australian Recurrence Interval (ARI) flood level for that location is 14.6m AHD; and 3. during the 1 in 100 ARI flood event, flood water at the location of the Proposed Development would have a depth of 2.7m and a velocity of approximately 1.17m/s.
The appeal comes to the Court pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

Environmental Planning and Assessment Act 1979

Section 4.15(1) of the EP&A Act requires that, 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 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 (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph). 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.

Hawkesbury Local Environmental Plan 2012

Development on the Subject Site is subject to the provisions of Hawkesbury Local Environmental Plan 2012 (HLEP). The following provisions of HLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of HLEP. The Subject Site is zoned RU5 Village, and under the provisions of cl 2.3 of HLEP, the objectives of this zone are to: provide for a range of land uses, services and facilities that are associated with a rural village;. maintain the rural character of the village and ensure buildings and works are designed to be in sympathy with the character of the village; protect hilltops, ridge lines, river valleys, rural landscape and other local features of scenic significance; ensure that development does not detract from the existing rural character or create unreasonable demands for the provision or extension of public amenities and services. 1. Dwelling houses are a permitted use within the Subject Site's RU5 zoning. 1. Clause 6.3, concerning flood planning, which applies to land at or below the flood planning level within the Hawkesbury Local Government Area (LGA), and which: 1. has the following objectives: (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 land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. 1. provides under subcl (3), and following, as follows: (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause - flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event. 1. Clause 6.7, concerning essential services and which provides as follows: Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required - (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access

Sydney Regional Environment Plan No. 20 - Hawkesbury-Nepean River (No.2 - 1997)

Sydney Regional Environment Plan No. 20 - Hawkesbury-Nepean River (No.2 - 1997) (SREP 20) aims to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.
From 1 July 2009 SREP 20 is taken to be a state environmental planning policy (SEPP) (see cl 120 of Schedule 6 to the EPA&A Act)
Clause 4 of SREP 20 concerns the application of general planning considerations, specific planning policies and recommended strategies, and, relevant to this appeal, provides: (1) The general planning considerations set out in clause 5, and the specific planning policies and related recommended strategies set out in clause 6 which are applicable to the proposed development, must be taken into consideration: (a) by a consent authority determining an application for consent to the carrying out of development on land to which this plan applies ….
Clause 6 within Part 2 of SREP 20 concerns specific planning policies and recommended strategies, and provides under cl 6(3), and specifically cl 6(3)(d), as follows: Policy: Future development must not prejudice the achievement of the goals of use of the river for primary contact recreation (being recreational activities involving direct water contact, such as swimming) and aquatic ecosystem protection in the river system. If the quality of the receiving waters does not currently allow these uses, the current water quality must be maintained, or improved, so as not to jeopardise the achievement of the goals in the future. When water quality goals are set by the Government these are to be the goals to be achieved under this policy. Note. Aquatic ecosystems and primary contact recreation have the same meanings as in the document entitled Australian Water Quality Guidelines for Fresh and Marine Waters, published in 1992 by the Australian and New Zealand Environment and Conservation Council. Strategies: … (d) Do not carry out development involving on-site disposal of sewage effluent if it will adversely affect the water quality of the river or groundwater. Have due regard to the nature and size of the site. …
Clause 8 within Part 3 of SREP 20 concerns development controls, and provides under scl 8(5) that: (5) Development requiring certain matters to be considered The consent authority must not grant consent to the carrying out of any such development if the words Additional matters for consideration by the consent authority appear in the item until it has considered those matters in addition to the matters specified in section 90 of the Act.
Clause 11 of Part 3 of SREP 20, sets out particulars for development controls imposed under Part 3, and includes the following relevant provisions under subcl 11(17) in relation to sewerage systems or works: Definition: Development for the purpose of any sewerage system or work which stores, treats or disposes of sewage (including domestic on-site disposal systems that are ancillary to development which requires consent) but not including a public utility undertaking. Consent required. Additional matters for consideration by the consent authority: (a) Whether the proposed development will be capable of connection to a Sydney Water Corporation Limited or council sewerage system either now or in the future. (b) The suitability of the site for on-site disposal of effluent or sludge and the ability of the sewerage systems or works to operate over the long-term without causing significant adverse effects on adjoining property. (c) The likely effect of any on-site disposal area required by the proposed development on: any water bodies in the vicinity (including dams, streams and rivers), or any mapped wetlands, or any groundwater, or the floodplain.

Hawkesbury Development Control Plan 2002

The Hawkesbury Development Control Plan 2002 (HDCP) at section 1.4, has the following aims: "a) To provide a comprehensive document that contains detailed development controls for development which meets community expectations and addresses the key environmental planning issues of the Hawkesbury LGA; b) To promote economically, socially and environmentally sustainable development within the City of Hawkesbury; c) To enable an aesthetically pleasing and functional development that sympathetically relates to adjoining and nearby development; d) To maintain and enhance the environmental and cultural heritage of the Hawkesbury LGA; e) To involve the local community in the planning process by ensuring openness, accountability and transparency in the decision-making process; f) To set out clear processes, procedures and requirements to facilitate an integrated and consistent framework for dealing with development assessment; g) To ensure that development will respond to its context and not detrimentally affect the surrounding development ; and h) To promote the Ecologically Sustainable Development (ESD) principles including water sensitive urban design, climate responsive building design, energy efficiency, and selection/use of recycled materials."
The following clause of HDCP is of particular relevance in this appeal: 1. Section 1.18 of Part D of HDCP, concerning effluent disposal, which aims to ensure that there is adequate land for onsite effluent where land is not services by reticulated sewer, and which provides: "Connection to reticulated sewerage is required for all forms of residential development, apart from single dwellings and rural dual occupancies. Where reticulated sewerage is not available, single lots created on or before 10 August 1999 may be connected to pump out. For all other development a minimum area of 4,000sqm is required and it is demonstrated that there is adequate area for onsite effluent disposal."

Contentions

As discussed earlier in this judgment (see above at [9(1)]), the Subject Site is zoned RU5, and the Applicant's Proposed Development is permissible within this zone.
The Applicant submitted that he had received confirmation from the Respondent Council in 2015, around the time of his purchase of the land, that the land had an entitlement to a dwelling, and this was confirmed in a letter tendered by the Applicant within Exhibit A from Hawkesbury City Council dated 22 July 2015.
The letter from Hawkesbury Council in 2015 had also stated that: "Development consent would be required to be obtained for any proposed development of the land. The land is prone to limitations which may impact the location, design and style of dwelling and the choice of building materials. These limitations include (but are not limited to) Bushfire, Effluent Disposal, Heritage and Flooding."
Notwithstanding the Applicant's submissions in relation to the existence of an dwelling entitlement associated with the Subject Site, as a consequence of the limitations identified above at [21], the contentions in this appeal concerned, whether the specifics of the Applicant's Proposed Development merited the grant of consent in the context of broader statutory controls that apply to the Subject Site.
More specifically the principal questions addressed at the hearing were: 1. are the Applicant's proposals for evacuation of the Proposed Development during a flood such that the Court could be satisfied that the risk to life from a flood was adequately managed as required under cl 6.3(3)(c) of HLEP? 2. does the Applicant's design for its proposed dwelling provide structural integrity such that the dwelling would be compatible with the flood hazard of the land, as required under cl 6.3(3)(a) of HLEP? 3. is the Applicant's proposed sewage management system, including a septic tank, with trench for disposal of sewage, such that it satisfies the relevant provisions of cl 6.7 of HLEP, cll 6(3)(d), 8(5) and 11(17) of SREP 20, and section 1.18 of Part D of HDCP?
The Court's consideration of these questions was assisted by the evidence of the expert engineers: 1. Mr David England, for the Applicant, and 2. Dr Daniel Martens, for the Respondent.

Are the Applicant's proposals for evacuation of the Proposed Development during a flood such that the Court could be satisfied that the risk to life from a flood was adequately managed as required under cl 6.3(3)(c) of HLEP?

The Parties and their experts agreed during the hearing that in the event of a flood, the evacuation of any occupants from the proposed dwelling on the Subject Site would need to occur by those occupants moving from the dwelling across the Subject Site towards Bulga Street, and then proceeding along Wharf St to cross the bridge over the Macdonald River using Wollombi Rd.
The experts also agreed that it was not appropriate to anticipate that evacuation from the Subject Site might be possible using the embankment at the rear of the Subject Site adjacent to the bridge over the Macdonald River.
The Applicant had proposed that a flood warning alarm would be installed at the boundary of the Subject Land to alert any future occupant of the proposed dwelling of the need to evacuate.
In response to questions from the Respondent, Mr England agreed that: 1. occupants of the proposed dwelling would need to leave the Subject Site before flood waters crossed the middle of the Subject Site at its low point; 2. the alarm would particularly be required in circumstances where flood waters were approaching the Subject Site at night and occupants were asleep; 3. if the proposed alarm system were to break down, this would pose a risk to the occupants of the Applicant's proposed dwelling.
In response to a question from the Applicant: 1. Mr England said that he did not have the experience to attest to whether the provision of three separate power sources for the alarm and the provision of an annual service check would be adequate to ensure that the alarm system remained reliable. He said that if it were reliable then the use of the alarm to initiate occupant evacuation should be acceptable; 2. Dr Martens said that he did have experience with flood alarm systems, and he provided evidence as to their operating mechanisms. Dr Martens also said that: 1. in order to assess whether a flood alarm would work on the Subject Site it would be necessary to examine the design of the proposed alarm. He noted that no design had been provided for the proposed alarm; 2. any flood alarm would need to avoid being triggered during storm events in order for occupants to be assured that, if the alarm was activated, it did, in fact, indicate that a flood risk had arisen and that evacuation was required; 3. the topography of the Subject Site and its susceptibility to stormwater, as distinct from flood waters, would present challenges for the design of an effective flood alarm; 4. he was unable to say whether the installation of a flood alarm on the Subject Site would mitigate the risks associated with a flood to any future occupants of the Subject Site.
To illustrate his evidence provided above at [28(2)(d)], Dr Martens played a video of a hydraulic model of the 1 in 100 ARI flood event in the area of the Subject Site and surrounds, and in response to which Dr Martens said that: 1. there were three sources of flood water that would affect the Subject Site which he described as waters from the main channel, waters from a backwater, and a secondary flow of water from the north west; 2. at a point in time 19 hours following the commencement of flood level rain in the catchment, it would not be possible to see any approaching flood waters from the Applicant's proposed dwelling; 3. at 23 hours and 15 minutes after the commencement of flood level rain the in catchment, there would be no flood water on the Subject Site; 4. at 23 hours and 30 minutes after the commencement of flood level rain in catchment, flood waters would enter the Subject Site and any flood alarm would be triggered; 5. at 23 hours and 45 minutes after the commencement of flood rain the in catchment the flood waters would extend across the Subject Site to Bulga Street and evacuation would no longer be possible; 6. by his estimate, any future occupants of the proposed dwelling would have between five and seven minutes to effect their evacuation from the Subject Site following the flood alarm being triggered in the event of a 1 in 100 ARI flood event. He noted that such an evacuation may be difficult to effect at night, and in the dark.
In response to the evidence of Dr Martens, Mr England said that, in his opinion, and based on Dr Martens' model, any future occupant of the proposed dwelling would have around 15 minutes to effect their evacuation from the Subject Site in the event of a 1 in 100 ARI flood event.
Having considered the evidence of the experts, I am not satisfied that the Applicant's proposals for evacuation of occupants from the Proposed Development during a 1 in 100 ARI flood event are such that that the risk to life from such a flood would be adequately managed, as required under cl 6.43(3)(c) of HLEP, because: 1. I accept the uncontested expert evidence of Dr Martens that 1. the Applicant has not provided a design for his proposed flood alarm; 2. to assess whether a flood alarm would work on the Subject Site it would be necessary to examine the design of the proposed alarm; 3. in the absence of a design for the proposed flood alarm, and given the nature of the Subject Site, it is not possible to establish whether the Applicant's proposed alarm would work.
Based on the evidence above at [31(1)], I conclude that it is not possible to be satisfied that the risk to life from a flood would be adequately managed, as required under cl 6.3(3)(c) of HLEP.
In reaching this conclusion I have not had to rely on the further evidence provided by Dr Martens in respect to the time that would be available to a future resident of the Applicant's proposed dwelling to evacuate the Subject Site.
However, in my assessment, the relatively short timeframes of between either six to seven minutes, as suggested by Dr Martens, or even the more generous 15 minutes, as suggested by Mr English, would be an inadequate basis upon which the Court could be satisfied that evacuation would be possible in the event of a 1 in 100 ARI flood event at night.
In summary, I do not accept that the Applicant's proposed flood alarm system is such that I can be satisfied that his proposed development incorporates appropriate measures to manage risk to life from flood. As a consequence I find that the Applicant's Proposed Development does not satisfy the provisions of cl 6.3(3)(c) of HLEP.

Does the Applicant's design for its proposed dwelling provide structural integrity such that the dwelling would be compatible with the flood hazard of the land, as required under cl 6.3(3)(a) of HLEP?

At the hearing, the Applicant tendered as evidence a single page of plans for the dwelling he proposed to construct on the Subject Site, along with correspondence from Mr Brian Pratt of Pratt Engineers Pty Ltd that addressed certain matters pertaining to the structural integrity of the Applicant's proposed plans for a dwelling on the Subject Site.
The letter from Mr Pratt concerned the Applicant's proposed use of a brand of structural materials referred to as Duragal, and it stated: "Duragal columns and substructures or a product of an equivalent manufacturer are considered to be structurally adequate immersed in flood waters to a depth of 3.0m flowing at a maximum of 1.0m/s. Any cladding system attached to the columns will be subject to final structural approval along with the final column size and bracing arrangement. Impact from large flood debris is excluded from this approval."
In response to questions from the Respondent, Dr Martens said that, in his expert opinion: 1. the letter did not provide certification as to the structural integrity of any element of the proposed dwelling; 2. the statement in the final sentence of the letter that "Impact from large flood debris is excluded from this approval" negates the relevance of the letter for the purpose of addressing the structural integrity of the Applicant's proposed dwelling since it was likely that the dwelling would be subjected to large flood debris in the event of a 1 in 100 ARI flood event; 3. flood debris could create two types of impact on the dwelling that he described as a "point load' force, arising from the impact of debris, and a "flow" force, arising from the effect of flood water banking up behind debris, and it was likely that the Applicant's proposed development would need to withstand forces of both types in the event of a 1 in 100 ARI flood event..
Mr England said that he was unable to provide any evidence in relation to the structural integrity of the Applicant's proposed dwelling as it would require him to complete some additional analyses that he had not undertaken.
Based on the evidence above at [38] and [39], I conclude that it is not possible to be satisfied that the Applicant's design for its proposed dwelling would be of sufficient structural integrity such that the dwelling would be compatible with the flood hazard of the land, as required under cl 6.3(3)(a) of HLEP.

Is the Applicant's proposed sewage management system, including a septic tank, with trench for disposal of sewage, such that it satisfies the relevant provisions of cl 6.7 of HLEP, cll 6(3)(d), 8(5) and 11(17) of SREP 20, and section 1.18 of Part D of HDCP?

The Applicant has proposed that sewage generated by his proposed development would be captured in an on-site septic tank, with disposal via an on-site trench system.
A letter from Blue Mountains Geological and Environmental Services Pty Ltd was tendered as evidence by the Applicant in support of his Proposed Development. The letter noted that it provided a desk top assessment in relation to the potential to have an on-site effluent management for a future dwelling on the Subject Site. The letter concluded that: "Pending provision on a detailed effluent management report, it is considered that an effluent management system as described in this desk top assessment could be readily installed at the subject site and that Council approval would be gained for this."
In response to a question from the Respondent, Dr Martens stated that the letter could not be used for the purpose of certification of the Applicant's proposed sewage management system under either the Australian Standard AS 1547-2012 concerning on-site domestic wastewater management, nor under the NSW Department of Local Government's Environmental Health Protection Guidelines - On-site Sewage Management for Single Households, because it did not include. 1. information concerning soils testing on the Subject Site; 2. information relating to groundwater testing on the Subject Site; 3. information on the status of nutrients currently generated on the Subject Site and that might be generated by the Proposed Development; 4. information on water balance on the Subject Site; 5. a site plan; 6. any consideration of the requirements of SREP 20.
Dr Martens added that the size of the Subject Site was close to half of that required under the provisions of HDCP section 1.18 (see above at [17(1)]), for an on-site effluent disposal system. He concluded that it was not possible based on the information provided by the Applicant to determine whether an on-site sewage disposal system could be accommodated on the Subject Site. He also noted that: 1. the Subject Site was sensitive with respect to effluent disposal because it was close to the Macdonald River and any inadequate effluent disposal on the land could result in effluent and associated pathogens travelling from the Subject Site to sensitive receptors; 2. because there was no information available from bore testing of groundwater in the local area, it was not possible to assess whether the Proposed Development would pose a risk to the quality of bore water extracted in the area; 3. some the same reasons, there was no basis for assessing the potential cumulative impact of the Proposed Development on groundwater in the local area, and beyond.
The Applicant provided no evidence in contradiction to the evidence of Dr Martens.
Based on the evidence above at [43] and [44], I conclude that the Applicant's proposed sewage management system, including a septic tank, with trench for disposal of sewage, cannot satisfy the relevant provisions of cl 6.7 of HLEP, cll 6(3)(d), 8(5) and 11(17) of SREP 20, and section 1.18 of Part D of HDCP.
On the basis of my conclusions at [46], I find that, 1. The Applicant's Proposed Development is not compliant with the provisions of cl 6.7 of HLEP and section 1.18 of Part D of HDCP; and 2. the information contained within the Applicant's development application, and the evidence at the hearing, does not permit me to consider the matters that I am required to consider under the provisions cll 6(3)(d) and 11(17) of SREP 20, in particular the matters in cll 17(b) and 17(c), and as required by the provisions of cl 8(5) of SREP 20, I must not grant consent to the Applicant's Proposed development.

Conclusion

As a consequence of my conclusions, and the reasons provided, above at [32], [40] and [47], I conclude that: 1. I am unable to be satisfied that the Applicant's proposals for evacuation of the Proposed Development during a flood such that the Court could be satisfied that the risk to life from a flood was adequately managed as required under cl 6.43(3)(c) of HLEP; 2. I am not satisfied that the Applicant's design for its proposed dwelling provide structural integrity such that the dwelling is compatible with the flood hazard of the land, as required under cl 6.3(3)(a) of HELP; and 3. the Applicant's proposed sewage management system, including a septic tank, with trench for disposal of sewage, is not compliant with the relevant provisions of cl 6.7 of HLEP and section 1.18 of Part D of HDCP, and in the absence of any information in relation to the nature of groundwater on the Subject Site, the provisions of cll 6(3)(d), and 11(17) of SREP 20 cannot be satisfied. Consequently, and required by cl 8(5) of SREP 20, consent must not be granted to the Applicant's Proposed Development.
For the same reasons provided above at [48(1)] on which I base my conclusions in relation to the adequate management of risks to life in the event of a flood, and because I have not been provided any further evidence in relation to the matter, the Applicant's application for retrospective approval of unauthorised works to a shed on the Subject Site (see above at [3]), cannot be approved.
Based on my findings at [48] and [49] I find that the Applicant's Proposed Development is not in the public interest and his appeal should be dismissed.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA0187/17 for the construction of a two storey dwelling house, and associated works, is determined by refusal. 3. The exhibits are returned, with the exception of Exhibits A and 1.

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: 08 January 2020

At a glance

Court

Decision date

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Judgment (12 paragraphs)

Parties

Cited By (2)