McCarthy v Shoalhaven City Council

Representation: Counsel:
D Weinberger (Applicant)
R O’Gorman Hughes (Respondent)
Solicitors:
MCW Lawyers (Applicant)
Urban Legal (Respondent)

File Number(s): 2025/101205

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 - Residential Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) appealing Council’s deemed refusal of Development Application DA23/1825 and seeks consent for a proposed two-storey dwelling house with associated earthworks and filling of land, driveway and landscaping, and the removal of one tree (together, the Proposed Development).

2. The Development Application relates to land known as 1 Wharf Road, Shoalhaven Heads (legally described as Lot 2, DP701597) (the Site).

3. Specifically, the Site:

4. consists of a vacant lot of land which is rectangular in shape.

5. has a site area of 650m2 with a frontage to Wharf Road of approximately 20m.

6. is located on a peninsula which is accessed via Hay Avenue.

7. is zoned R2 - Low Density Residential under the Shoalhaven Local Environmental Plan 2014 (SLEP).

8. The Lower Shoalhaven River Flood Study 2022, identifies the Site is:

9. located within the floodplain of the Lower Shoalhaven River.

10. located approximately 40 m from the bank of the river and approximately 1.5 km from one of the river outlets to the sea at Shoalhaven Heads.

11. mapped within the flood planning area. The flood planning level is reported as 4.0 m Australian Height Datum (AHD) (existing) and 4.2 m AHD at 2100.

12. classified as high hazard floodway in the 1% Average Exceedance Probability (AEP) event with an allowance for climate change at 2050.

13. regularly affected by flooding, with the 10% AEP flood level being 2.2 m AHD.

14. classified as 'submerged' in the Flood Emergency Response Categories.

15. The Site is surrounded by:

16. low density residential development to the north, south, east and west.

17. the Shoalhaven River to the south and west, with part of the river running parallel to the northern side of Hay Avenue.

18. Flooding of the locality (including the subject site) has occurred over time with the Shoalhaven Heads gauge recording 48 flood events between 1991 - 2024 in which a flood level of 1.2m AHO has been met or exceeded.

19. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 July 2025 onsite and at council chambers. Progress was made on the contentions, but no agreement on the terms of a decision was reached. Accordingly, I terminated the conciliation and proceeded to hearing in Court on 18 July 2025.

20. The outstanding matters remaining from the conciliation dealing with the issues of flood prone land were addressed in the hearing. The Parties then provided agreed Conditions of Consent that specified the final detail of the works and plans.

Shoalhaven Local Environmental Plan 2014 (SLEP)

8. The site is located within an area identified as R2 Low Density Residential, in the SLEP-

Zone R2 Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide an environment primarily for detached housing and to ensure that other development is compatible with that environment.

2 Permitted without consent

Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Jetties; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Sewerage systems; Tank-based aquaculture; Water supply systems

4 Prohibited

Any development not specified in item 2 or 3

9. Development for the purpose of dwelling houses is permitted with consent, with regard to the objectives of the R2 zone.

10. The subject Lot 2, DP701597 was created in 1984 by subdivision of one of the original lots of land created in 1926 along Hay Avenue and Wharf Road. The site is surrounded by approved development. The zoning of R2 Low Density Residential is included in the SLEP (2014). The site has been consistently zoned for residential development. I accept that the R2 zoning of the site should be given weight in this determination as it has been in place at least since the SLEP (2014) and the land under residential use since 1926. This is consistent with the decision in Fran Development Pty Ltd v Randwick City Council [2025] NSWLEC 1213 where Thorpe AC considered Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Counci**l [2024] NSWLEC 27. As with the development application in Goldcoral, this development can be seen to be environmentally acceptable and able to be approved subject to conditions.

11. The site is mapped within the flood planning area. Consideration of Shoalhaven Local Environmental Plan 2014 (SLEP) cl 5.21(1)-cl 5.21(3) – Flood planning is required-

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.

12. Following conciliation, the issues that remained were in relation to the development being compatible with the flood function and behaviour on the land, not adversely affecting flood behaviour in a detrimental way, and that the development incorporates appropriate measures to manage risk to life in the event of a flood.

13. The Flooding Experts Joint Report (Exhibit 3) identified that not all flood events result in an evacuation order being issued (cl 5.21(2)(c) SLEP). In the materials for the Shoalhaven City Council Ordinary Meeting – Tuesday 15 April 2025 (Exhibit 2E pp 1006), it was noted between 1991 and 2024 there were 48 times when the Shoalhaven Heads gauge recorded or exceeded the 1.2m AHD trigger point for evacuation of the site proposed in the development application. This is lower than the 1.5m AHD average natural ground level of the site. The Lower Shoalhaven River Flood Study (Cardno 2022) (Exhibit 2E pp 77) noted six flood events at the Shoalhaven Heads Guage between March 1978 and August 2020. The Flooding Joint Report (Exhibit 3) suggested an evacuation order for the area was likely made in 2020, however the experts were not able identify any evacuation orders having been issued then or at any other time.

14. The report by Mr Paul El-Bahey (Exhibit G) confirmed that with the appropriate engineering detailing, the development can withstand the forces associated with a flood event of 0.2% AEP flood Level of 3.7m AHD and a design flood velocity of 1.3 m/s (cl 5.21(3)(c) SLEP).

15. The Flooding Joint Report (Exhibit 3) identified that the site is located near the outlet of a large coastal catchment and the very large flowrate across the broader floodplain would at most result in only local scale changes to flood impacts resulting from the development (cl 5.21(2)(b) SLEP) I am satisfied that the development is compatible with the flood function and behaviour on the land.

16. The flooding duration for the site would likely exceed the recommended maximum shelter in place of 12 hours provided in the NSW Department of Planning, Housing and Infrastructure *‘*Shelter in place guidelines for flash flooding’ (Exhibit 2E pp 885). The Conditions of Consent do not allow shelter in place and evacuation is required in the event of a flood (cl 5.21(2)(d), cl 5.21(3)(c) SLEP).

17. The Conditions of Consent require adherence to an approved evacuation plan to minimise the risk to life and property in accordance with the relevant floodplain risk management practices. The Flood Evacuation Plan prepared by SMEC dated 25 June 2025 (Exhibit B) is to be updated to include an A3 page that can be used by the occupants and placed in perpetuity in a suitable location in the dwelling. Observation of Conditions of Consent is mandatory and requires the occupants are familiar with the Flood Evacuation Plan. I am satisfied that the plan must be followed by the occupants, contain appropriate measures to manage risk to life in the event of a flood, enable efficient evacuation and will not exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood (cl 5.21(2)(c) SLEP).

18. I am satisfied that with the Flood Evacuation Plan in place [17] the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion is not required in this matter (cl 5.21 (3)(d) SLEP).

19. Due to the situation of site, 40m from the bank of the Shoalhaven River and the average natural ground level being nearly flat and the Conditions of Consent, 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 (cl 5.21(2)(e) SLEP).

20. For the reasons outlined I am satisfied on the evidence before me that the development has addressed cl 5.21 SLEP and that the grant of consent is within power of the Court.

21. The site is mapped within the flood planning area. Consideration of Shoalhaven Local Environmental Plan 2014 (SLEP) cl 5.22 Special flood considerations is required-

5.22 Special flood considerations

(1) The objectives of this clause are as follows—

(a) to enable the safe occupation and evacuation of people subject to flooding,

(b) to ensure development on land is compatible with the land’s flood behaviour in the event of a flood,

(c) to avoid adverse or cumulative impacts on flood behaviour,

(d) to protect the operational capacity of emergency response facilities and critical infrastructure during flood events,

(e) to avoid adverse effects of hazardous development on the environment during flood events.

(2) This clause applies to—

(a) for sensitive and hazardous development—land between the flood planning area and the probable maximum flood, and

(b) for development that is not sensitive and hazardous development—land the consent authority considers to be land that, in the event of a flood, may—

(i) cause a particular risk to life, and

(ii) require the evacuation of people or other safety considerations.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered whether the development—

(a) will affect the safe occupation and efficient evacuation of people in the event of a flood, and

(b) incorporates appropriate measures to manage risk to life in the event of a flood, and

(c) will adversely affect the environment in the event of a flood.

22. The objectives of this clause are met as follows

23. the development allows for the safe occupation and efficient evacuation of people in the event of a flood [17] (cl 5.22(3)(a)(b) SLEP), and

24. incorporates appropriate measures to manage risk to life in the event of a flood [17] (cl 5.22(3)(b) SLEP), and

25. will not adversely affect the environment in the event of a flood [15]-[19] (cl 5.22(3)(c) SLEP).

26. I am also satisfied that the need to protect the operational capacity of emergency response facilities is not required and the development will not impact critical infrastructure during flood events (cl 5.22(1)(d) SLEP).

27. For the reasons outlined I am satisfied on the evidence before me that the development has addressed cl 5.22 of the SLEP and that the grant of consent is within power of the Court.

Other Jurisdictional Matters

25. Considerations required by the SLEP also include jurisdictional matters that were not put before the Court. For this development they are

26. Clause 7.1 Acid sulfate soils –

7.1 Acid sulfate soils

(1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

(2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

27. The site is shown on the Acid Sulfate Soils Map Sheet ASS_019 of the SLEP as being class 3 where development consent is required for works more than 1 metre below the natural ground surface and for works by which the watertable is likely to be lowered more than 1 metre below the natural ground surface. The development will not involve work or excavation more than 1m below natural ground level. Development consent is not required. Further, number 26 of the Conditions of Consent include requirements for Acid Sulfate Soils - Unexpected.

28. Clause 7.2 Earthworks – the matters required before granting development consent for earthworks-

7.2 Earthworks

(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2) Development consent is required for earthworks unless—

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

29. The issue of earthworks was accepted by the Parties during conciliation and dealt with in the Conditions of Consent.

30. Clause 7.6 Riparian land and watercourses – applies as the site is located within 50m of a mapped watercourse-

7.6 Riparian land and watercourses

(1) The objective of this clause is to protect and maintain the following—

(a) water quality within watercourses,

(b) the stability of the bed and banks of watercourses,

(c) aquatic and riparian habitats,

(d) ecological processes within watercourses and riparian areas.

(2) This clause applies to all of the following—

(a) land identified as “Riparian Land” on the Riparian Lands and Watercourses Map,

(b) land identified as “Watercourse Category 1”, “Watercourse Category 2” or “Watercourse Category 3” on that map,

(c) all land that is within 50 metres of the top of the bank of each watercourse on land identified as “Watercourse Category 1”, “Watercourse Category 2” or “Watercourse Category 3” on that map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a) whether or not the development is likely to have any adverse impact on the following—

(i) the water quality and flows within the watercourse,

(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,

(iii) the stability of the bed and banks of the watercourse,

(iv) the free passage of fish and other aquatic organisms within or along the watercourse,

(v) any future rehabilitation of the watercourse and its riparian areas, and

(b) whether or not the development is likely to increase water extraction from the watercourse, and

(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

31. As noted, [15], [19] due to the situation of the site and the Conditions of Consent I am satisfied that the development is designed, sited and will be managed to avoid any significant environmental impact (cl 7.6(4)(a) SLEP).

32. Clause 7.8 Scenic protection - this site is not mapped as scenic protection and cl 7.8 of the SLEP was assessed by the Respondent as not applying (Exhibit 2E pp 943).

33. For the reasons outlined I am satisfied on the evidence before me that the development has addressed these jurisdictional matters under cll 7.1, 7.2, 7.6 and 7.8 of the SLEP and that the grant of consent is within power of the Court.

Shoalhaven Development Control Plan 2014 (SDCP)

34. The Shoalhaven Development Control Plan 2014 (SDCP) Chapter G9 sets out the requirements for Development on Flood Prone Land.

35. The SDCP does not prohibit the development of dwelling houses with a High Hazard Floodway. Dwelling houses are permissible with consent if performance-based conditions can be applied. Those requirements apply to this site and are listed in Chapter G9 of the SDCP - Development on Flood Prone Land. Schedule 2 – Flood Related Development Controls – Generic for High Hazard Floodway, Single Residential / Habitable Buildings A(I)* (Exhibit 2A). The conditions as per Sch 2 will apply if existing use rights as defined in the EPA Act can be established. The existing use for the land is R2 Low Density Residential as included in the SLEP.

36. The Conditions as per Sch 2 are set out in the Development Controls Matrix in Chapter G9 of the SDCP and relate to Floor Level, Building Components, Structural Soundness, Hydraulic Impact, Access, Flood Evacuation Plan and Management and Design. I am satisfied these have been set out in the Conditions of Consent and will be met.

Orders

37. The Court orders that:

38. The appeal is upheld.

39. Development consent is granted to development application DA23/1825 for a proposed two-storey dwelling house with associated earthworks and filling of land, driveway and landscaping, and the removal of one tree subject to the conditions set out in Annexure A.

P Moore

Acting Commissioner of the Court

Annexure A (290 KB, pdf)

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