Michael Brown Planning Strategies v Wingecarribee Shire Council

The Site

1. The site is located on the south west of Bowral central business district at the end of Loftus Street. The site contains an informal road known as Meryla Road that connects Loftus Street to Moss Vale Road. Access to the development site is via Loftus Street through the adjacent industrial estate. The site is legally described as Lot 24 in DP 713573, it has an area of 12,700m².
2. The site is currently vacant and is characterised as open grassland. It contains a few isolated trees.
3. The site lies in the flood plain of a tributary of Mittagong Creek. The drainage channel within the subject site is classified as a first-order stream.
4. The surrounding locality is characterised by light industrial uses on Loftus Street, residential uses to the east, south and across the proposed Bowral by-pass to the west. A public reserve and the Southern Railway line are to the north-west of the site.

Relevant Planning Controls

1. Within the meaning of s 4.46 of the EPA Act, the proposed development is integrated development as approval is required under s 91 of the Water Management Act 2000. The proposed development at the site would result in works being carried out within 40m of a first-order stream. The NSW Department of Primary Industries (Water) has provided General Terms of Approval on 24 September 2017.
2. The development requires the concurrence of Water NSW under State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 as the site is within the catchment of Warragamba Dam. Concurrence with conditions was provided on 10 October 2016.
3. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 certificates have been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
4. The parties note, for the purposes of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land, that the subject land been used for residential purposes for a number of years and that it is unlikely it is contaminated. A preliminary Geotech Assessment has been prepared by Envirotech Pty Ltd in November 2018.
5. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development applies to the subject development application as it is three or more storeys and contains more than four apartments. A design verification statement was lodged by Mosca Pserras Architects, registered architect Frank Mosca (NSW ARB no. 5000).
6. LEP 2010 applies to the site. Relevant to this appeal LEP 2010 has the following aims (cl 1.2(2)): … (b) to maintain Wingecarribee's original settlement pattern of towns and villages dispersed throughout a rural and native vegetation landscape, (c) to encourage the efficient use and development of urban land, minimising the spread of urban areas into rural and native vegetation environments, thereby increasing the accessibility of the population to urban facilities and services, (d) to provide opportunities for development and land use activities that: (i) make an effective contribution towards the economic wellbeing of the community in a socially and environmentally responsible manner, and (ii) do not adversely impact on natural systems and processes and the overall quality of Wingecarribee's natural environment, and (iii) retain the critical natural, rural and built environmental landscape elements that make up the scenic and cultural heritage value of Wingecarribee, (e) to provide opportunities for a range of new housing and housing choice in locations that have good access to public transport, community facilities and services, retail and commercial services and employment opportunities, including opportunities for the provision of adaptable and affordable housing, (f) to provide for a range of living opportunities that address differing lifestyle needs without compromising the environmental quality of Wingecarribee, and the value of its natural resources such as water, biodiversity and agricultural land, … (l) to develop an ecologically sustainable future for Wingecarribee through the conservation, rehabilitation and regeneration of native vegetation (particularly threatened species populations and ecological communities), soil, waterways, riparian land and water quality (surface and groundwater), … (p) to protect and enhance waterways, riparian land and water quality in the drinking water catchments of Wingecarribee.
7. Pursuant to LEP 2010 the site is zoned R3: Medium Density Residential. The objectives of the R3 zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide for a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
8. The proposed development is defined as 'subdivision' and 'residential flat building'. Both are permissible in the zone.
9. Pursuant to cl 4.1(4) the minimum lot size for the site is 700m². The minimum lot size standard does not apply to the proposed community title subdivision (cl 4.4(4) of LEP 2010).
10. The subject site is not subject to a Maximum Height standard or a Floor Space ratio standard.
11. The subject site is within the flood planning area identified in LEP 2010. The site includes land that varies from Low Flood Hazard to High Flood Hazard (Ex A).
12. Part 7 of LEP 2010 contains a number of Local Provisions. Relevant to the current application is cl 7.5: Natural Resources sensitivity - Water. At subcl 3 it states: Before granting development consent for development on land to which this clause applies, the consent authority must consider any potential adverse impact of the proposed development on the following: (a) the natural flow regime, (b) the water quality of receiving waters, (c) the waterway's natural flow paths, (d) the stability of the waterway's bed, shore and banks, (e) the flow, capacity and quality of groundwater systems.
13. Clause 7.5(4) LEP 2010 requires the Consent authority to form a positive opinion of satisfaction on the following matters before the exercise of power to grant consent. (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 managed to avoid any potential adverse environmental impact, or (b) if that impact cannot be 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.
14. At cl. 7.9(3): Flood Planning requires the consent authority, prior to the grant of consent, to be satisfied that: (a) is compatible with the flood hazard of the land, and (b) will not 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) will not 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) will not be likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
15. Clause 7.9(3) amounts to a pre-condition which must be satisfied before the proposed development can be approved following a consideration of the merits of the application. Unless the hurdles presented by each of these provisions can be overcome then the consent authority has no power to grant its consent: Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79 at [19]:
16. The Bowral Town Plan DCP (DCP 2017) applies to the proposal.

Public Submissions

1. In accordance with the provisions of DCP 2017, the development application was notified to adjoining and nearby properties. Council received 4 submissions objecting to the application. The objections raised the following main issues: drainage; flooding; visual impact; incompatibility of the proposal with the character of the locality; devaluation of adjoining properties; loss of aspect and view; neighbourhood amenity; noise, privacy and traffic.

Experts

1. Consistent with the matters in dispute in the proceedings the parties engaged the following experts: Area of Expertise Applicant Respondent Town Planning Michael Brown Deborah Laidlaw Hydrology Habib Rehman Daniel Dhiacou Traffic & Parking Matthew McCarthy Daniel Dhiacou

1. The experts produced joint expert reports that were tendered in the proceedings. I have read and considered these expert reports.

Is the development compatible with the flood hazard of the land?

1. The development the applicant seeks consent for is detailed at paragraph [1]-[2]. This development was modified with the consent of the Court as noted in paragraph [4]-[5]. Relevantly, the works proposed to be undertaken to augment the existing railway culvert and increase the movement of water through/under the railway line adjacent the site does not form part of the 'development' for which consent is sought. The culvert augmentation works are proposed to increase the current underpass of the railway line to three box cells (ExD).
2. The requirement to complete the culvert augmentation works is proposed to be imposed as a deferred commencement condition on the development consent, post the determination of the application (s 4.16 of the EPA Act).
3. The Respondent's deferred commencement condition is as follows. The Applicant agrees to the condition, but seeks a 24 month period to achieve compliance: "1. Proof of completion of works to upgrade/ enlarge railway culverts to three box cells Written advice, provided by ARTC, confirming completion of works to upgrade/ enlarge railway culverts to three box cells within the railway corridor Lot 501 DP 1204712 to its satisfaction and to the design specifications set out in the Lindsay Dynan 'Bowral Culvert Duplication' plans (dated 11.12.14) shall be submitted to the satisfaction of Council within twelve months of the granting of consent." (ExF)
4. It is the development for which consent is sought (cl 4.12(1) of the EPA Act) that the consent authority must be satisfied is compatible with the flood hazard of the land (cl 7.9(3)(a) of LEP 2010).

Background

1. In 2009 Wingecarribee Council engaged Bewsher Consulting to complete a Flood Study, Flood Plain Risk Management Study, and a Flood Plain Risk Management Plan (the Bewsher Report) for two catchments: the main Mittagong catchment and the 'Beavan Place' sub-catchment. The subject site is within the Beavan Place sub-catchment.
2. The Bewsher report identifies the flood risk of the subject site as partly a 'High flood risk precinct' and partly a 'Medium flood risk precinct (Ex 2). The report defines these terms as follows: "High Flood Risk Precinct: Land below the 100 year ARI flood that is either subject to a high hydraulic hazard or where there are significant evacuation difficulties. In this precinct, there would be substantial risks of damage to property, which could not be feasibly or reasonably managed with flood related building and planning controls. Medium Flood Risk Precinct: Land below the 100 year ARI flood that is not subject to a high hydraulic hazard and where there are no significant evacuation difficulties. In this precinct, flood related building and planning controls can be reasonably and feasibly employed to minimise flood damage to property." (Section 3.3 Bewsher Report, Exhibit 2)
3. At Section 8.1 of the Brewsher Report, it discusses 'Measures that Modify Flood Behaviour' and identifies that existing culverts can act as a restriction to water flow from upstream catchments. In terms of the culvert relevant to these proceedings, the Brewsher Report concludes that the amplification of the culvert would 'reduce the afflux and consequently reduce the number of houses flooded above floor level in the 100 year flood by four, in Nerang and Romney Place' (Section 9.3.2 Brewsher Report, Ex 2).

Expert Evidence

1. The most recent flood assessment of the proposed development was completed by Hydrostorm Consulting in May 2019: 'Development at Loftus Street Bowral - Flood Study Update - Climate Change Impacts' (Final Flood Report). This Final Flood Report includes the culvert augmentation works as part of the features on which the modelling was derived (Ex D). The impact of the proposed development is detailed as follows: "The proposed development, including the provision of higher capacity railway culvert, results in reduced flood levels east of the railway under the proposed development conditions. The flood levels reduce by approximately 0.28m west and north of the proposed development, with potential benefits to several properties within the floodplain. The proposed bypass culvert [within the site] carries most of the flow arriving from the upstream catchment. This improves flooding for a property fronting Moss Vale Road, where flood levels reduce by up to 0.35m. The increased capacity of the railway culverts also results in some adverse impact, downstream of the railway. The flood increase varies from 0.02m to 0.11m. For the most impacted area, the increase in flood levels is less than 3cm." (ExD)
2. The Final Flood Report notes that all habitable and non-habitable floor levels for the proposed development are set at the 100-year ARI (or 1%AEP) flood plus the required 500mm freeboard allowance. Further, the driveway access to the basement car parking is also set at the 100-year ARI (or 1%AEP) flood, plus freeboard, restricting the ingress of flood water.
3. The relationship between the probable maximum flood level (PMF) level and the lowest habitable floor levels of the proposed development is as follows: Building B: PMF level ranging from 665.6m AHD to 664.4m AHD. The minimum habitable floor level is 665.9m AHD. Building A: PMF level ranging from 664.2m AHD to 664.3 m AHD. The minimum habitable floor level is 664.5m AHD. The minimum habitable floor levels for the entire development are above the PMF and therefore provide a refuge during the PMF. Hence the access for pedestrians or vehicles is not required from the building. (Exhibit D)
4. The Final Flood Report concludes that 'the modelling results show that the proposed development would not have any adverse impact on the surrounding properties. The proposed development will also remain flood free under the climate change conditions'. Further, it concludes that 'There is a significant impact of the development without the railway culvert upgrade. The upgrade of the railway culvert is therefore necessary as part of the proposed development' (ExD).
5. The hydrologists participated in a joint conferencing process where they considered all of the data, modelling and plans before the Court in relation to the proposed development. They make the following agreed comments: 1. Upgrading the railway culvert will generally reduce flood levels upstream of the culvert (including the site), but will have some negative local flood impacts. 2. The proposed development cannot proceed before the railway culvert upgrade works. These works are necessary to reduce site flood affectation, and without this upgrade the site will be unable to be developed in its present form due to significant flood affectation constraints. (Ex5).
6. In their closing submissions both Counsel drew the Court's attention to the oral evidence of the hydrology experts. I have reproduced the sections of the transcript of their oral evidence relevant to the consideration of cl 7.9(3)(a) of LEP 2010 below: "FARRELL: I've just got a couple of questions for both of the experts, Commissioner. Mr Rehman, at page 2 of the report, if I could take you to the top half of the page at bullet point 2, you agree that the proposed site development cannot be allowed to proceed before the railway culvert upgrade works? WITNESS REHMAN: That's correct. FARRELL: You agree that the existing flood affectation constraints are significant? WITNESS REHMAN: That's correct. FARRELL: Could I then take you to page 7. About a third of the way down the page there's a grey row which says that, "The Court, as consent authority on appeal, would not be satisfied that the development is compatible with the flood hazard of the land under clause 7.9(3)(a) because the development application fails to take into account projected climate change". When you agreed with Mr Diaku in relation to matters 1, 2, 3 and 4, that's on the basis, isn't it, that the railway culvert has been constructed? WITNESS REHMAN: Yes. FARRELL: If I go then down to H, which is the next column, when you answer the issue of whether the development is compatible with the flood hazard of the land and you refer above to the comments made in relation to contention 4G, again, that is on the assumption that the culvert has been constructed? WITNESS REHMAN: That's correct." (Transcript 11/6/19 pp. 11-12)
7. The tenor of Mr Rehman's oral evidence is that his written evidence in the joint report, in regard to the compatibility of the development with the flood hazard of the land, was based on the assumption that the culvert augmentation works have been completed. This is despite these works not forming part of the development for which the applicant seeks consent.
8. In oral evidence, Mr Ireland sought confirmation from Mr Rehmanof the assumption in the joint report of the characteristics and development potential of land to the west of the railway culverts. IRELAND: Just one question arising from the earlier topic that was asked by my learned friend in terms of the culvert and the establishment of the culvert. Mr Rehman, referring you to page 3 of the joint report at exhibit 9, Commissioner and paragraph 4B on page 3, you'll see that section of text there beginning, "On the assumption". Mr Rehman, you'll see that?... WITNESS Rehman: Yep. IRELAND: I'd just like to clarify for the Court's benefit the flood position in relation to the area on the west of the railway corridor in a predevelopment scenario which will be relevant to this issue, Commissioner, but Mr Rehman, do you have a copy of your flood impact study update 2016, dated 21 November 2018? … IRELAND: This diagram, figure 9, shows the existing flood conditions, is that correct? WITNESS REHMAN: That's correct. IRELAND: The red area is noted as a high ..(not transcribable).. WITNESS REHMAN: High hazard. High hazard area, yes. High flood risk precinct to be precise. Yep. IRELAND: In that area, in a predevelopment scenario, just asking you as a flood engineer, that wouldn't be an area where you'd be recommending the approval of residential dwellings, would it? WITNESS REHMAN: No, it can't happen, as per council's DCP, as well and as a generally high hazard area that's not where you recommend any habitable dwellings. IRELAND: I take it, Mr Diaku, you wouldn't disagree with that? WITNESS DIAKU: Not in that area. (Transcript 11/6/19 pp. 20-21)

Submissions

1. Mr Ireland submits that, consistent with BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [118], in most cases the Court will approve an application to use a site for a purpose for which it is zoned, provided the project results in acceptable environmental impacts. On this basis he argues that the R3 Medium Density Residential zoning of the land should be given significant weight by the Court.
2. Mr Ireland submits that 'the construction of that culvert is required to render the flood management of the site effective, and approval for the construction of that culvert is not part of this DA.' (Applicant's Outline of Submissions 8 June 2019). Further, he argues that the railway culvert augmentation works are axiomatic with the development of the proposal and that the deferred commencement condition will ensure that the proposed development cannot proceed without the completion of the amplification of the culverts. On this basis he submits that the precondition at cl 7.9(3)(a) is satisfied.
3. Relying on the decision of the Court of Appeal in Hoxton Park Residents Action Group Inc. v Liverpool City Council [2011] NSWCA 349 ('Hoxton Park Residents'), Mr Ireland argues that the Court is in a position to assess the environmental impacts of the construction of the works to the culvert, despite not being asked to approve it.
4. The Hoxton Park Residents case involved an appeal against a development consent for the construction and operation of a school and the construction of an access road. Part of the access road traversed a public reserve owned by the Council. The construction of the access road involved the construction of a bridge across the public reserve and the clearing of more than 1,000m2 of bushland containing an endangered ecological community. Consent was granted to the DA subject to a condition requiring the bridge to be constructed and the access road completed before the granting of an occupation certificate for the development.
5. In summary, the Court of Appeal in Hoxton Park Residents held that an environmental impact that was a likely consequence of development must be considered under s 79C of the EPA Act (now s 4.15), even though it results from an activity that is not itself the subject of the relevant development application. The Court was satisfied that on the facts before it that the bridge was likely to be constructed and the likely impacts were not remote because the consent had 'locked-in' the construction of the bridge and the school could not be accessed or occupied unless it was constructed.
6. Mr Ireland concludes that in the current proceedings the information before the Court, in particular, the hydrologists' joint report and the Final Flood Study, are sufficient for the Court to assess the likely impacts of the culvert augmentation works as part of the consideration of the likely impacts of the development (s 4.15(1)(b) of the EPA Act).
7. Mr Ireland notes that there is a modelled increase in flood affectation arising from the augmentation of the railway culverts to land downstream on the north-western side of the railway line. He submits that this effect is acceptable on the following basis: 1. this land is currently designated as a medium to high hazard flooding in the earlier Bewsher Report; 2. the area that will be affected by an increase in flooding is zone RU4: Primary Production Small Lots or SP2: Infrastructure and the agreed evidence of the hydrologists is that the affected land, and its current flood characteristics, would not be appropriate for residential development.
8. Mr Ireland concludes that on the evidence the increase in flood affectation to downstream properties from the augmentation of the culverts has no impact in practical terms.
9. Further, he notes that there is a quantifiable benefit that arises from the amplification of the railway culverts to other properties. Most notable is the reduction of flood affectation to a property fronting Moss Vale Road by 0.35m.
10. In relation to the appropriate statutory interpretation of cl 7.9(3) of LEP 2010, Mr Ireland argues that:

• the provision should be interpreted in a manner consistent with the accepted principles of statutory construction, and be interpreted 'having regard to the text and context' (Transcript 11/06/19 pg. 45). He submits that the Court should apply the principles and approach detailed in: Cranbrook School v Woollahra Municipal Council [2006] NSWCA155 at [36] (Cranbrook School v Woollahra Council )and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 [37] and [39].
• that cl 7.9 is concerned with flood planning and with the assessment of flood planning. It's objective, at cl 7.9(1)(a), is to minimise the flood risk to life and property associated with the use of land but also at cl 7.9(1)(b) to allow development on land that is compatible with the land's flood hazard, taking into account projected climate change.
• The clause is focused on allowing development that is compatible with the land's flood hazard, whilst taking into account the future and the potential for increases in flood levels.
• In relation to the precondition at subcl (c) Mr Ireland submits: "(the) whole clause is looking at the development for which consent is sought and it's directing the Court to consider whether it's compatible with the flood hazard of the land in the circumstances in which it is proposed, not absent the development that's proposed or the circumstances in which the development is proposed. The circumstances in which this development is proposed includes the railway culvert and the circumstances include the amelioration in the flood hazard of the land due to the proposed development together with the railway culvert. Clause 7.9(3)(a) cannot, in my submission, be properly construed to require, for example, the consideration of a development without regard to its consequences or without regard to its downstream environmental impacts or without regard to other aspects of development such as the railway culvert on which the development relies. The reason why the proposed development is compatible with the flood hazard of the land is because of its design. It is compatible with the flood hazard of the land, this development proposal, because it is designed to be constructed with the railway culvert. It is compatible with the flood hazard of the land because the assessment of the flooding experts in joint report and Mr Rehman's separate reports find it to be so. Council, as I understood and I could be wrong but as I understood my learned friend, with respect, in his opening submission, he's intending to ask the Court to consider the proposed development and the application of cl 7.9(3)(a) in, as it were, a vacuum. That is wrong and it would also not be properly considering the development proposal." (Transcript 11/6/19 pg. 46)

1. Finally, Mr Ireland argues that the oral evidence of the experts needs to be put in the appropriate context. He states: (The) experts note the importance of the railway culvert upgrade works for the proposal and that's not, of course, something that the applicant shies away from or wishes to shy away from. It's axiomatic, really, as part of this proposal from its original conception that the establishment of the railway culvert upgrade as recommended indeed by council's own Bewsher 2009 study, is something that's assumed and built upon as an appropriate basis for this proposed development application and it is the evidence of the experts that that is something that needs to occur and needs to be in place, otherwise this evidence as to the acceptability of the development in terms of hydrological impacts, would not be supported by that important component. This, of course, doesn't indicate anything at all in terms of whether the culvert needs to be built, in fact, in terms of its bricks and mortar and steel, prior to the approval of this development consent. What it indicates is that the construction of the railway culvert is a very appropriate matter to be conditioned as part of a deferred commencement condition so the Court can be sure that if the railway culvert upgrade does not occur, then this development shall not proceed but it's, with great respect, just not correct to say the order of development matters. It's not correct to say that the railway culvert needs to be built, for example, before this development application can be approved. That's not correct. (Transcript 11/6/19 pg. 37)
2. Mr Farrell disagrees with the approach advanced by Mr Ireland in relation to the interpretation of cl. 7.9(3) of LEP 2010. He relies on the decision of the Court of Appeal in Valuer-General v Fivex Pty Ltd [2015] NSWLEC 53. He argues this decision is more recent than the decision of Cranbrook School v Woollahra Council on which the applicant relies. In particular, he references paragraph [26] which states: "26. "[T]he task of statutory construction must begin with a consideration of the text itself": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (emphasis added). It is wrong to approach the question of construction by confining attention to the legislative purpose and disregarding the text. No particular theory or 'rule' of statutory interpretation, including that of 'purposive' construction, can obviate the need for close attention to the text and structure of the relevant provision: Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 at [30]. An analysis of the text of s 6A(1) and (2) yields the following matters immediately."
3. Mr Farrell submits that, in relation to the satisfaction of cl 7.9(3)(a) of LEP 2010, the Court needs to be satisfied at the time of determination that the development is compatible with the flood hazard of the land (his emphasis). He underscores that the phrasing of the clause is present tense and not, for example, a phrase such as 'will be compatible'. He submits: "On the plain English wording of the clause, considering that these enabling works offsite are not properly assessed and not properly approved and not properly carried out and indeed, these works remain at the discretion of a public authority, as a matter of the plain English wording of that clause, the Court could not be satisfied that the development is compatible with the flood hazard of the land and in my closing submissions I'll take the Court to some authorities for the proposition that primary, regarding interpreting this clause, must be to the ordinary English language in that clause." (Transcript 11/6/19 pg. 7)

Findings

1. The Applicant has prepared, through its consultant Hydrostorm Pty Ltd a number of flood assessments of the subject site. The November 2018 report states that: "… the provision of (a) higher capacity railway culvert reduces flood levels east of the railway under the proposed development conditions. The flood levels reduce by 0.28m west and north of the proposed development. The flood levels are lowered over a large area with potential benefit to several properties within the flood plain" (Ex D)
2. As part of the preparation of the November 2018 report, Hydrostorm were asked by the Respondent to provide a 'Flood Impact Study' demonstrating the flood risk if the development was to proceed without the augmentation of the culverts. Figure 16-19 of the November 2018 report assesses the flood risk of the development pad, on which the residential development is to proceed. It is nominated as a 'low-risk precinct' under this scenario.
3. As part of the November 2018 report, Hydrostorm provides an assessment and recommendations against Council's 'Flood Planning Matrix'. The report confirms the following:

• the habitable and non- habitable areas (such as the common room) have floor levels that are above the1% Annual Exceeedance probability (1%AEP) flood level, with an additional 500mm freeboard.
• that flood compatible materials and components are to be utilised for parts of the development that are exposed to potential flooding.
• entry to the enclosed, or basement car parking, is at 1%AEP flood level, plus 500mm freeboard to limit the ingress of water to these areas.

1. Further, the November 2018 report recommends an audible and visual alarm system and appropriate signage to warn of the need to evacuate from the basement to habitable floors in a flood event, noting that the proposal is the shelter in place.
2. Finally, the report notes that the habitable floor levels for the whole of the development are above the PMF flood level.
3. The flood assessment was rerun and updated to account for climate change (refer paragraph [5]). The Final Flood Report notes that to account for the effects of climate change the data in the Brewsher Report was altered to increase rainfall intensities by 20% to represent the future climate. The Final Flood Report summarises the resulting changes as follows:

• the 1%AEP flood levels would increase by 0.17m upstream of the railway culvert under existing conditions (i.e. without the proposed development)
• comparison of the 1%AEP climate change flood levels for both existing and developed conditions provides the incremental impact of the proposed development. The modelling results show that the reduction in flood levels achieved through the proposed development under the current climate will remain for the future climate.
• the proposed development remains flood free under the climate change conditions and access to Meryla Road remains open in a 1%AEP event.

1. It is clear in both the November 2018 report (refer pg 5 Sections 2 and 2.1) and the Final Flood Report (refer pg 7 Section 8) that a reference to the 'proposed development' in these reports includes a reference to the augmentation of the railway culverts, resulting increase in capacity. This assessment is of the implementation of the proposed development for which consent is sought plus the completion of the agreed conditions.
2. The exception is Figures 16-19 of the November 2018 report. These are the evidence of the flood affectation of the land with the proposed development only, excluding the works to the railway culvert.
3. I note that the architectural design of the proposed residential flat building has set the habitable floor levels above the 1%AEP flood level, with 500mm freeboard. The civil design for the site includes the creation of a fill platform, which is the location of the proposed buildings, through the importation of some 2000 cubic metres of material (Ex D plan: 160103E1.06). The November 2018 report assesses this filled pad as a 'low-risk precinct', without the amplification of the culverts (refer paragraph [61]).
4. The above items are typically the parameters that would be given weight by hydrology experts in determining whether a particular development is compatible with the flood affectation of the land or appropriate on its merits.
5. However, these parameters are contrasted with the agreed evidence of the hydrologists, reproduced at paragraph [41] who state, unambiguously that: the proposed development site cannot be allowed to proceed before the railway culvert upgrade works (Exhibit 9).
6. Further, in crosss-examination it was clarified by Mr Rehman that in agreeing with the following statement, he was including the completion of the railway culvert augmentation works as having been completed: "As the proposed development area remains flood free in the 1% AEP climate change flood, the site is still considered to be in a 'medium flood risk precinct', hence the proposed development is compatible with the site flood hazard in accordance with the BDCP." (Ex 9)
7. When read as a whole I am satisfied that the agreed expert evidence is that, firstly the development cannot be allowed to proceed before the railway culvert augmentation works, and secondly that without the culvert augmentation works the site is unable to be developed in its present form due to the significant flood affectation constraint. Importantly, the experts do not conclude that the implementation of the measures at paragraph [68] is sufficient to render the development compatible with this flood affectation.
8. The Macquarie dictionary defines 'compatible' as follows: compatible adjective 1. capable of existing together in harmony. 2. capable of orderly, efficient integration with other elements in a system.
9. In relation to the interpretation of cl 7.9(3)(a) of LEP 2010 I prefer the submission of Mr Farrell that the subclause requires the consent authority to be satisfied, at the time of determination, that the development is compatible (capable of existing in harmony) with the flood characteristics of the land. I accept his submission that the use of the present tense, in the context of the remaining subclauses appears a deliberate choice in the drafting of the provision.

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: 05 July 2019