Kenoss Pty Ltd v Palerang Council

Judgment 1These proceedings are a Class 1 appeal against the respondent Council's refusal of a development application for subdivision of land near Bungendore intended for future residential development. The application did not seek consent for residential development. The land is located in Zone No 2(v) (Village Zone) under the Yarrowlumla Local Environmental Plan 2002 (LEP). The land is "floodplain land" as defined in the LEP. 2The following preliminary and separate question is before the Court for determination: On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, in considering the condition precedent therein to the grant of consent for subdivision of land in Zone No 2(v) where the subdivision takes in floodplain land: (a) is the only question whether the consent authority is satisfied that the subdivision takes in floodplain land? or (b) is there a further question whether the consent authority is satisfied that that floodplain land is an unsuitable area? 3In my opinion, for the following reasons, the answers to the question are: (a)Yes; and (b)No

The LEP 4The separate question is concerned with the construction of cl 21(b) of the LEP. Clause 21 is only concerned with consent to subdivision in the Village Zone and provides: 21 What must be considered before consent is granted to subdivision in the Village Zone? Consent must not be granted to a subdivision of land within Zone No 2 (v) unless the consent authority is satisfied: (a) that the subdivision is consistent with the character of the area in which it is proposed having regard to existing density, landscape and nearby development, and (b) that the subdivision does not take in unsuitable areas such as floodplain land, and (c) that the development achieves the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets, and (d) that, where connection of a proposed allotment to a sewer is not possible, the allotment will be suitable for on-site effluent disposal without adverse effect on ground or surface water quality. (emphasis added) 5The subject land is "floodplain land" within paragraph (a) of the definition of that expression in cl 39 of the LEP. Clause 39 defines certain references to flood levels as follows: 39 What are floodplain land and flood planning area? For the purposes of this plan: floodplain land means: (a) land that is susceptible to inundation by a probable maximum flood (PMF) event, being the largest flood that could conceivably occur at a location based on current knowledge, or (b) land considered by the Council to be subject to local stormwater flooding whether or not it is recorded as such on maps held by the Council. flood planning area means land below the flood planning level (FPL) mapped for the purposes of defining a flood standard that has been adopted by the Council and is identified on the map marked "Bungendore Flood Map". flood planning level means the annual exceedance probability (AEP) level of a 1% (1 in 100 year) flood. 6Clause 10(5) states the objectives of the Village Zone: (5) Zone No 2 (v) (Village Zone) The objectives of this zone are as follows: (a) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community, (b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land, (c) to control village development so as to achieve the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets. (emphasis added) 7The Village Zone is the only urban zone under the LEP. The other zones are rural, rural residential, state forest, rural small holdings, water catchments, recreation, environmental protection and national parks: cl 9. 8Clause 11 stipulates, by reference to a lengthy table of land uses, developments that may be carried out in the various zones without development consent or with development consent or which are prohibited. It does not refer to subdivision, however subdivision is a type of "development" defined in s 4 of the Environmental Planning and Assessment Act 1979. 9Part 3 Division 1 of the LEP comprises cl 16, which mandates matters that a consent authority must be satisfied about or consider before granting consent to development of land: 16 What must be considered before granting consent to development? (1) Before consenting to development of land, the consent authority must be satisfied that the carrying out of the development is consistent with the objectives of this plan and the objectives of the zone in which the land is situated. (2) Before consenting to development of land, the consent authority must also consider: (a) the present use of the land and the potential of the land as productive agriculture land, and (b) the vegetation cover, land capability (including soil resources and soil stability) and water resources (including the quality and stability of watercourses and ground water storage and riparian rights), and (c) the future recovery, from known or prospective areas, of valuable deposits of minerals, sand, gravel or other extractive materials, and (d) the protection of areas of significance for nature conservation or areas of high scenic or recreational value, and places and buildings of archaeological or heritage significance (including Aboriginal relics and places), and the conservation of native flora and fauna, and (e) the cost of providing, extending and maintaining public amenities and services to any buildings or works that will result from carrying out the development, and (f) future expansion of urban areas in the locality and the impact on any existing village, and (g) vulnerability and exposure to natural disasters such as bush fires and floods, and (h) in the case of subdivision, whether each allotment to be created has a practical building precinct. (3) This clause does not apply to development that is complying development under clause 14. 10Part 3 Division 2 comprises cll 17-23 and is entitled "Subdivision". Clause 17 mandates that consent must be obtained for all subdivisions (with two irrelevant exceptions). Clause 21 has been set out earlier. It is the focus of this judgment. 11Part 4 is concerned with special controls for localities. Part 4 Division 1 is entitled "Flood hazard" and comprises cll 39-41. Clause 39 defines certain references to flood levels including "floodplain land", and has been set out earlier. As I have said, the subject land is "floodplain land" as defined. Clause 40 mandates matters that a consent authority must consider before granting consent to development of floodplain land: 40 What special controls apply to development of floodplain land? (1) Before granting consent to development of floodplain land, the consent authority must consider the following: (a) the extent and nature of the flooding or inundation hazard affecting the land, (b) whether or not the proposed development would increase the risk or severity of flooding or inundation affecting other land or buildings, works or other land uses in the vicinity, (c) whether the risk of flooding or inundation affecting the proposed development could be reasonably mitigated and whether conditions should be imposed on any consent to further the objectives of this plan, (d) the social impact of flooding on occupants, including the ability of emergency and support services to access, rescue and support residents of flood prone areas, (e) the provision of any floodplain management plan, interim local flood policy or relevant development control plan adopted by the Council. (2) Despite any other provision of this plan, development which includes the erection of a building is prohibited on land within a floodway area identified on the map marked "Bungendore Flood Map". 12The "Bungendore Flood Map" referred to in cl 40(2) is at the back of the LEP. It shows "floodplain land (PMF)" and, within its perimeter, "floodway" and "flood planning level (AEP = 1 %)".