Lensing v Snowy Valley Council

The Site

1. The total area of the site is 5.8 hectares (Ha). The site is an irregular, triangular shape, located adjacent to the Tumut River, which forms the south-western boundary, along a frontage of 415m.
2. The village of Tumut is located on the adjacent side of the River, south and west of the site, and is connected to the riverbank near the site via a (pedestrian) footbridge.
3. The eastern boundary of the site is Bombowlee Avenue for a length of 260m, and the northern boundary is a length of 439m, adjoining rural land. To the north and east of the site is farmland, with scatterings of isolated dwellings.
4. The site is generally vacant of structures except a shed, predominantly grassed with fragmented pockets of trees.

Relevant Planning Controls

1. The site is identified in Council's mapping as being on bushfire prone land, therefore the requirements of s 4.14 of the EPA Act are relevant for the Courts consideration. The application relies on a bush fire assessment report, and the Court is satisfied the requirements of s 4.14 are addressed.
2. The requirements of s 4.15 of the EPA Act are also relevant for the Court's consideration to grant consent to the DA under appeal, as described below: 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 (iiia) 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7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the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.
3. The south-western boundary of the site is identified on the Biodiversity Values Map as belonging to the Plant Community Type (PCT) 79 - River Red Gum, pursuant to 7.3 of the Biodiversity Conservation Regulation 2017 (BC Reg). The BC Reg supports the implementation of the Biodiversity Conservation Act 2016 (BC Act). An ecological assessment of the site (Exhibit L), undertaken in August 2022, indicates that the site does not currently contain species that belong to PCT 79, including the area of proposed clearing for the dwelling or shed. The Court is satisfied that the provisions of the BC Act or BC Reg are not further engaged by the proposed development.
4. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from the landowner for works proposed by the DA.
5. Pursuant to cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), with respect to contamination, the site must be deemed or capable to be made suitable for the proposed (residential) use, prior to grant of consent. Based on the history of the site and supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, together with the agreed draft conditions of consent, to address the relevant requirements of cl 4.6.
6. The proposed development is situated over land zoned RU1 Primary Production, pursuant to cl 2.3 of the Tumut Local Environmental Plan 2012 (TLEP). The proposed residential dwelling and shed with associated works is permissible with consent in the zone, and the relevant objectives of the zone are satisfied. The parties agree that the lot is described as an 'existing holding', pursuant to cl 4.2B(3)(d), and that the DA does not propose earthworks (including to a driveway) that would trigger consideration of cl 6.1. The parties agree that the site is mapped as: 1. being flood prone, pursuant to (cl 6.2 of the former TLEP and) cl 5.21 of the current TLEP, 2. having a ground water vulnerability, pursuant to cl 6.4, and 3. having (a portion of) land that is riparian land, pursuant to cl 6.5.
7. The parties agree, and the Court accepts that the proposed design/location of the wastewater system together with the agreed draft conditions of consent (Exhibit 6) address the requirements of cll 6.4 and 6.5 of the TLEP.
8. The Snowy Valley Development Control Plan 2019 (SVDCP) is relevant in consideration of the amended DA, with specific reference made to Chapter 3, clause 3.2.10 (flooding) and clause 3.2.13 (wastewater management).
9. In consideration of the amended DA under appeal, the parties draw the Court's attention to the following policy documents and guidance for reference and assessment:

• NSW Floodplain Development Manual, 2005. Department of infrastructure, Planning and natural Resources. (hereafter the FDM)
• Tumut Shire Local Flood Plan. Volume 1, 2013. NSW State Emergency Services (SES). (hereafter the SES Local Plan)
• Australian Disaster Resilience Handbook 7 Managing the floodplain: A Guide to Best Practice in Flood Risk Management in Australia, 2017. Commonwealth of Australia. (hereafter the ADR Handbook), with guidelines.
• 2022 Flood Inquiry Volume One and Two: Summary and Full report. State of New South Wales 2022 (the Inquiry).

Experts

1. The Court was provided with joint expert reporting from the following experts: 1. Planning - Mr David Hunter and Mr Jeremy Swan. 2. Wastewater - Mr David McMahon and Dr Daniel Martens. 3. Flooding - Mr Mark Colegate and Dr Daniel Martens.
2. Oral expert evidence was provided in the hearing by the flooding experts. By agreement of the parties and concurrence of the Court, the other listed experts were not called to give oral evidence because the contentions relevant to their expertise had been resolved prior to (by amendments to the DA) and/or during the hearing, and the Court had no questions based on their joint expert reports, supporting documents to the amended DA and agreed draft conditions of consent.

Resident submissions

1. In response to notification of the original DA, consistent with the requirements of the SVDCP, the Council received no (resident) submissions.

Is there sufficient information to assess flooding on the site and be satisfied that there is an acceptable (mitigated) risk to life from the proposed development?

1. The contention as raised by Council is that the amended application before the Court is not supported by sufficient information to assess and/or be satisfied that the potential and likely impacts to future residents on the site due to flooding are sufficiently addressed nor acceptable.
2. The experts agree that the site is flood prone. The site is mapped as being below the flood planning level (FPL), as defined in the TLEP. The NSW Flood Plain Development Manual (FPM) 2005 provides policy guidance on managing risk on flood prone lands.
3. It is accepted by the experts that the site is affected by significant areal flooding in a flood event described as a 1:100 year average recurrent interval (ARI), also known as 1% annual exceedance probability (AEP), and above, including a probable maximum flood (PMF). The FPL mapped across the site is established at the 1% AEP level plus 0.5m freeboard.
4. However, the experts disagree as to the extent/depth of flooding likely across the site, potential risk to future residents from a high hazard flood event and the likelihood that residents can appropriately respond in the event of an evacuation.
5. With regards to evacuation, the issue in dispute relates to the ability of future residents on the site to leave in a timely and safe manner, primarily by vehicle along Bombowlee Avenue, and also via the footbridge across the Tumut River.
6. To assess the issue of flooding affecting the site, the applicant relies on the Stage 1 Flood Report and the (Stage 2) Strategy, prepared by WMA Water. The flood study has focused on the 1% AEP flood event, to assess the flood impact to the site pre and post development. The applicant also relies on the SES Local Plan and an 'individual' resident focused evacuation plan in the Strategy.
7. The dwelling is proposed to be located within 4m of the (Tumut) Riverbank, within the riparian corridor, and 6m from the (south-western) property boundary. The proposed dwelling is designed on piers, to elevate the lowest habitable floor level above the designated FPL.
8. It understood that the flooding context for the site and the proposed development, as agreed by the experts can be described as follows:

• The site is located on the floodplain of the Tumut River and is within a defined floodway, subject to riverine flooding. Floodwaters are directed through the site in a (north) westerly direction, first impacting the (eastern) adjoining properties, then flows across Bombowlee Avenue, through the site, and towards Wee Jasper Road.
• There is a river level gauge (identified as 410006) on the Tumut River, located 700 m upstream of the site, measured in meters and operated by the Bureau of Meteorology (BoM). The hydrograph for this gauge indicates that March 2012 was a major floor event above the 1% AEP, although there have been other flood events also recorded in October 2010, August 1970 and January 1984. Major flood events at the site are recurrent and irregular in interval.
• The 1% AEP flood level across the site is defined and modelled at 263.6 m AHD. This equates to flood levels across the site of up to 2m depth, which are deepest in the former paleochannels that transect the site. The habitable floor level as designed is at 264.1 m AHD (the FPL), and the dwelling is located where flood levels are likely shallowest across the site. The pre and post development flooding impacts assessed across the site are not significantly different in depth, velocity or hazard categorisation when considered without the (modelled) driveway.
• The site and proposed (vehicular) evacuation route are described as being subject to a (flood) hydraulic hazard class of between 'H2' to H4' in a 1% AEP event, with H2 being 'unsafe for small vehicles' and H4 being 'unsafe for people and vehicles', as described in the ADR Handbook. When the site is flooded in an 1% AEP event (or above), vehicular access to/from the site is restricted due to (H4 hazard) high hazard flooding along parts of Bombowlee Avenue, Dowells Lane and Wee Jasper Road. Pedestrian access from the site is limited to the footbridge across Tumut River, and persons must traverse through waters of H4 hazard category in a 1% AEP event or above.
• The Tuflow flood model relied on by the applicant has not calculated flood levels other than a 1% AEP event, as well as potential blockages along the driveway or potential climate change impact. The time it will take for a (1% AEP) flood to reach/traverse/remain on the site (after breaking the banks of the River) has not been addressed in this application.
• The site is also affected by a probable maximum flood (PMF), which will inundate the site and inundate the habitable level of the proposed dwelling, although the extent/time of inundation is unknown, because the actual level of the PMF on the site is not defined nor modelled.

1. The experts agree they do not have sufficient information to assess whether more frequent flood events (less than a 1% AEP) could impact the site, including how frequent, deep or duration. They agree that the applicants flood study considers the 'October 2010' flood event as covering the site, which is likely to be a 2 to 5% AEP flood event, a more frequent event than the 1% AEP event.
2. They also agree there is uncertainty as to how long a (1% AEP) flood event would take to reach/remain on the site after breaching the banks of the Tumut River or after reaching the designated gauge level, with Dr Martens suggesting 1-2 hours, and Mr Colegate suggesting 'several hours' lead time for residents to evacuate. There is also an agreed uncertainty on the potential flood (depth) levels along Bombowlee Avenue and the proposed evacuation route, which could potentially be higher (and possibly arrive earlier) at the site, due to elevation differences not assessed in the model.
3. The experts do not agree whether the model has been correctly designed to accurately assess the likely 1% AEP or other flood conditions that would be experienced on the site. This assessment informs the evacuation approach required to mitigate risk to life.
4. Appendix L of the FDM describes a 'floodway' as being capable of conveying significant volumes of water, often at higher depth and velocity than other flood systems, which is generally aligned along natural channels (including paleochannels). Investigation of the full range of potential flooding is 'essential' in the flood risk management process.
5. Chapter 4 in Guideline 7.3 of the ADR handbook describes the hydraulic (flood) hazard vulnerability curves and categories, which are adopted in the flood study/Strategy and described by the experts in evidence. The experts agree that the flood hazard category across parts of the site and along the evacuation route varies are up to 'H4' category in a 1% AEP or greater flood event, both pre and post development.
6. Dr Martens assesses that the adopted downstream model boundary conditions (for the Tumut River), the 1% AEP flow (velocity) rate, channel bed levels and blockage coefficients on bridges/culverts around the site are not accurate, and therefore the modelled (flood) water levels are underpredicted and provide insufficient information to make an accurate assessment. Further to this, Dr Martens in his own assessment, attached to the joint flooding expert report (Exhibit 3), suggests that the flood impact in the 'H4' category is likely more (aerially) extensive across and around the site in a 1% AEP event.
7. The experts agree that if the driveway (elevation) levels as modelled were reduced, the potential (post development) flood impact in a 1% AEP to surrounding areas would be reduced. However, Ms Reid confirmed that the driveway is not part of the application before the Court.
8. The experts do not agree that reliance on the SES Local Plan to mitigate risk to life (for residents of the site) is appropriate nor that the (individual site) evacuation plan as described in the Strategy will ensure that residents can effectively respond, when necessary. They also disagree whether the proposed individual site response approach to an evacuation is appropriately addressed by conditions of consent, as proposed by the applicant to supplement the Strategy and SES Local Plan.

What are the relevant jurisdictional requirements relating to flooding?

1. On 14 July 2021, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (hereafter Order 2021), sought to amend an environmental planning instrument, which had the effect of amending the WLEP by inserting a new cl 5.21 (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 Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
2. Consequently, cl 6.2 (flood planning) of the TLEP was repealed.
3. The parties do not agree as to whether the Court should consider cl 5.21 of the TLEP as a jurisdictional test in this appeal. In submission to the Court, the parties disputed whether the DA is saved from consideration of the new provision, cl 5.21 in the TLEP, by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 (the Order), below because it has been 'determined' by Council: 8 Application of amending orders (1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order. (2) (Repealed) (3) In this clause - amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order.
4. The issue of when a DA is 'finally determined' is established in a recent decision by Justice Robson in CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97 (CK Design). The CK Design judgement addressed the question of whether the word "determined" within a savings provision meant that the DA is finally disposed of for the purpose of assessment. At [42] and [43] he relevantly states: 42. As such, where a consent authority's refusal is the subject of an appeal, the Court's determination of a development application (as a matter in its original and not appellate jurisdiction) is substituted for the decision of the consent authority and is deemed to be the "final decision" (Court Act, s 39(5); Bunnings at [149]-[154]; Janlz Constructions Pty Ltd v Randwick Municipal Council [1976] 2 NSWLR 427 at 429-430). I consider it follows that when an appeal has been commenced, until the time of the final determination, by reference to s 4.16 of the EPA Act, the development application is not "determined" in the sense required by the wording of the Savings Provision. 43. Further, considering both text and context, it is in my view inappropriate to focus simply on the word "determined", when the wording "but not yet" needs to be read in the context of the instrument and must be given work to do. In that way, "determined" must be read with the composite words "but not yet" which causes the phrase to be expressed in the future perfect tense which, as submitted by CK Design, is a verb tense that describes actions that will continue up until a point in the future. When read in this way, the phrase ("but not yet determined") means that the development application has not been finally decided, settled or resolved. I consider the words are plain.
5. Mr Seton posed that the Council had 'finally determined' the DA by the notice to refuse issued on 27 April 2021, and therefore the savings provision (cl 8) in the Order, does not apply to the Courts consideration of the DA under appeal, and that cl 5.21 of the TLEP is the relevant jurisdictional test.
6. Ms Reid, however, considers that the assessment of the DA, based on the date of submission to Council and appeal to the Court, is not affected by either cl 6.2 (repealed) nor cl 5.21 of the TLEP due to the savings provision in the Order.
7. Consistent with Justice Robson in the CK Design judgement, I concur with Ms Reid, that the Court has the power to determine the amended application, and that the Court is not required to consider cl 5.21 of the TLEP, pursuant to cl 8 of the Order. There are no relevant flood related development standards in the TLEP, which are assessable for the application under appeal.
8. The Court therefore relies on the provisions in the SVDCP and relevant guidance documents, described above in this judgement, to assess the sufficiency of flood related information and acceptability of risk to life (and property) from the proposed development.

Is there sufficient information to assess flood impact?

1. Based on the evidence before the Court, I find that the applicant has not provided sufficient information to assess the potential and likely flood impact to the site, areas surrounding the site and to future residents, from all potential flood events, and in particular the 1% AEP event. The applicant has not demonstrated to the satisfaction of the Court the likely impacts to the site and proposed development due to flooding, the conditions under which this impact may occur and the appropriate mitigation to reduce risk to life and property.
2. The applicant relies primarily on flood modelling for the 1% AEP event, which I agree with Dr Martens is flawed. The data that informs the model is not sufficiently accurate with regards to elevations, flood depth, flooding orientation, blockages and climate change impacts. There is sufficient uncertainty derived from the model as to the potential level of flooding across and around the site, the time it will take for flood waters to traverse the site and the flood duration. This information forms the basis for a well-informed evacuation plan.
3. Aside from finding that the evidence supporting the 1% AEP flood event is insufficient in the application before the Court, I note that there is no supporting evidence for flood events less than or greater than a 1% AEP event. I acknowledge that the SVDCP (and FDM) focus on addressing the 1% AEP events, however it is known that the site is affected by other flood events. There remains uncertainty as to the potential impact to the site and risk to residents from other flood events. I understand from the evidence that 2-5% AEP events have been observed flooding the site, however the potential impact and risk to life from flood events other than the 1% AEP is not assessed.
4. There is no evidence that describes how deep or significant the impact to the site is from a PMF event, only that shelter in place is not possible for residents due to the flooding level being above the FPL (and habitable floor level). The PMF is an event that could have catastrophic consequences to residents of the site, yet little information is provided on whether residents would be safe in such an event. I accept that the applicant is not required to model flood events other than the 1% AEP, consistent with the SVDCP, however the FDM explicitly seeks a floodplain risk management plan to consider flood events up to a PMF event. I consider that this is appropriate for a residential development on the site to inform both the decision maker and residents on the potential risk to life.
5. Whilst I recognise that the SVDCP (and TLEP) focus on assessing the 1% AEP events for planning purposes, the approach taken by the applicant fails to acknowledge that other flood events can and will impact the site. A more robust assessment with respect to flooding is appropriate for this site, as it is located on a high hazard floodplain, affected by flood events other than the 1% AEP and this information would inform appropriate dwelling design and evacuation planning.
6. Further to this, I find that the 1% AEP flood model results provided in evidence are not sufficiently accurate to determine or assess the flood impacts to and from the proposed development, risk to life and property, and does not address the appropriate management measures to mitigate the risk to life. The requirements of cl 3.2.10 of the SVDCP are therefore not satisfied because there is insufficient information to define the impact of the new development on flood behaviour or to determine the appropriate works and management measures to mitigate any impact.
7. I have considered the relevant provisions of the SVDCP (and policy guidance in the FDM), pursuant to s 4.15(1)(a)(iii) of the EPA Act and am not satisfied there is sufficient information. I find there is insufficient information to be satisfied that the proposed development is suitable for the site, pursuant to s 4.15(1)(c).

Is the risk to human life and property as a result of flooding acceptable?

1. I agree with Dr Martens that based on the evidence before the Court there is (potentially) an unacceptable risk to the life of future residents on the site from the proposed development, and also that there is a potential for an adverse social impact to the local community, such to as persons who may attempt a rescue of residents.
2. The applicants' reliance on the SES Local Plan, together with a generic and poorly described resident focused, individual site (evacuation) response plan (described in the Strategy) is not sufficient nor appropriate to the circumstances of flooding likely to occur on the site, and does not address nor mitigate the risk to the life of future residents (and visitors).
3. I agree with Dr Martens in the evidence before the Court that there is potentially only 1-2 hours from when the riverbank is breached to evacuate, whereby the site will become substantially flooded and vehicular egress along the preferred evacuation route will become inaccessible and hazardous. The pedestrian access during this period from the site remains uncertain as it is not well-articulated in the applicant's (evacuation) strategy.
4. The amended application relies too heavily on the SES to provide appropriate and timely response, which the SES themselves recognise may not be feasible when needed. The site is not prioritised for evacuation by the SES Local Plan, therefore residents may not get the help needed in a timely manner. Residents will likely have to rely on their own resources and that of the local community, such as occurred in recent flooding in northern NSW (and considered in the Inquiry).
5. Shelter in place is an option for residents in a 1% AEP event (and below) due to the habitable floor being above the FPL. However, the length of time that residents would need to stay in place is not clear from the evidence before the Court. There is insufficient detail in the application to provide certainty as to whether residents will have the resources to shelter in place, with regards to food, water and communication.
6. I find that the applicants' evacuation approach is not well articulated, short on detail, relies too heavily on 'education' of the residents and is likely to be unimplementable in an emergency, such as during the night, due to the short period for response required and poor visibility to the river gauge. Without the SES warning being communicated in a timely manner, future residents of the site will have to rely on visualising the nominated river gauge level being exceeded, which is not within sight of the proposed dwelling, and then be alerted to act and respond accordingly, possibly within 1-2 hours.
7. The flood modelling describes an evacuation route, which relies on an elevated driveway from the dwelling to Bombowlee Avenue. Aside from the issues with the modelling as described above, Ms Reid, explained that the application before the Court specifically does not seek to construct a driveway on the site. Therefore, it is uncertain, how safe it would be for residents to evacuate the site without the elevated driveway.
8. The risk to property has not been addressed in the application before the Court, therefore it remains uncertain in terms of its acceptability.
9. Whilst the Court accepts Ms Reid's submission that a dwelling is a permissible development as zoned on the land, and that the SVDCP supports a 'reasonable expectation' that a dwelling could be erected on the land, the evidence before the Court for this application is insufficient to assess the risk to life for persons on the site during a flood event, and does not provide a reasonable understanding that the potential risk to life (and property) from a flood event, of any size, has been appropriately mitigated.
10. I am not satisfied that the draft condition (13b) of consent as proposed by the applicant is sufficient to address my concerns to inform a resident in an evacuation, based on the evidence before the Court. I do not dispute that a flood marker could be appropriate, however I am not satisfied that the modelling results and evacuation planning detail relied on by the amended application is sufficient to be certain that the marker is appropriate in location, height, design etc.
11. I am not satisfied that during a flood event above a 1% AEP event, when the habitable floor levels of the proposed dwelling are breached by flood water, that residents will have the appropriate resources and time to adequately protect themselves.
12. By direction of the Court, the parties were invited to consider and provide a submission relating to the Inquiry, with focus on any implications to the application before the Court. This Inquiry report was published after judgement was reserved but before this decision was handed down. It is acknowledged that the flood experts did not have an opportunity to address this report in evidence during the hearing, however assessing public interest, the Court is entitled to inform itself of relevant information, as described in Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at [81] by Mason P.
13. The submission of Mr Seton in assessment of the outcomes of the Inquiry, highlights the assessed failure of SES and systems of communication in the event of severe flooding. SES were overwhelmed, under resourced and unable to respond effectively to evacuate people trapped in their dwellings. The river gauges managed by BoM and telephone systems are prone to failure and not reliable forms of communication in a flood event.
14. In response, Ms Reid considered in her submission that this request of the Court was too broad in context of the application and also not relevant to the application before the Court.
15. The Court notes that the amended application relies on SES to notify and evacuate residents from the site, and the river gauge operated by BoM on the Tumut River.
16. Irrespective of the Inquiry outcomes, based on the evidence before the Court, I am not satisfied that the amended application has demonstrated there is an acceptable risk to life from the proposed development, due to: the reliance on shelter in place for an indeterminate period in flood events at (and less than) 1% AEP; ill-defined and potentially unreliable evacuation route; and a poorly described and potentially inexecutable evacuation plan, that residents would need to understand and rely on for their safety. It has not been demonstrated to my satisfaction that future residents of the site will have sufficient tools, resources, knowledge or capability to respond as required in a flood event, particularly at or above the 1% AEP.
17. Clause 3.2.10 of the SVDCP and relevant guidelines of the FDM have not been sufficiently addressed for the Court to be satisfied that the risk to life has and can be sufficiently mitigated in a 1% AEP flood. The site is recognised as being in a high hazard flood area on a flood plain. I find that appropriate mitigation measures have neither been considered nor described to the Court that give sufficient certainty with regards to the risk to life.
18. The burden of proof lies with the applicant/s to demonstrate that (future) persons on the site can be protected in the event of flooding and that appropriate measures can be adopted to mitigate the risk to life (and property). This has not been demonstrated in the amended application before the Court under appeal.
19. In consideration of the (amended) application before the Court, I am not satisfied that the social impacts to the locality from the proposed development have been addressed, including to persons on the site and the broader community in the event of a flood event, pursuant to s 4.15(1)(b) of the EPA Act. Further to this, I am not satisfied that the proposed development is suitable to the site, pursuant to s 4.15(1)(c) or in the public interest, pursuant to s 4.15(1)(e).
20. If I was to apply the requirements of cl 5.21 of the TLEP, which I am not jurisdictionally required to do, I would not be satisfied that the objectives of this clause have been addressed by the amended application, pursuant to s 4.15(1)(a) of the EPA Act. Based on the evidence before the Court, I would not be satisfied that objective (d) of cl 5.21, to enable the safe occupation and efficient evacuation of people in the event of a flood, has been sufficiently demonstrated by the application under appeal.

Conclusion

1. The amended application has been assessed, based on the evidence before the Court, including the DA's (amended) supporting plans, documents, agreed conditions of consent, and expert reports.
2. After consideration of the amended application, I am not satisfied that DA 2020/0228 sufficiently addresses the relevant jurisdictional and merit requirements, established in s 4.15 of the EPA Act. Section 4.15(1) are addressed, because: the requirements of the SVDCP, as they relate to flooding, are not satisfied; the application has not demonstrated that the site is suitable for the proposed development, due to an unacceptable risk to life; and there is a likely adverse social impact to the locality during evacuation of the site.
3. The development consent for DA 2020/0228 is refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

1. The Court notes that: 1. The Snowy Valley Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to amending the application for development consent (DA 2020/0228) and uploading to the NSW Planning Portal. 2. That the Council has uploaded the amended application on the NSW planning portal and the applicant has filed with the Court the amended application consistent with upload to the NSW Planning Portal.
2. Consequently, the orders of the Court are as follows: 1. The appeal is dismissed. 2. Development consent for Development Application 2020/0228 seeking construction of a two-storey dwelling and separate shed on Lot 12 DP 125902, also known as 12 Bombowlee Avenue, Bombowlee, is refused. 3. All exhibits are returned. ……………………. Sarah Bish Commissioner of the Court

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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: 13 September 2022