Neate v Shellharbour City Council

CASES CITED: BGP Properties v Lake Macquarie City Council, 138 LGERA 237-271; Telstra v Hornsby Shire Council, 146 LGERA 11-51

Applicant: LEGAL REPRESENTATIVES: Mr C McEwen SC Respondent: Mr A Pickles, barrister

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10337 of 2006 David Neate v Shellharbour City Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Shellharbour City Council (the council) of a development application to demolish the existing buildings and construct a housing project for older people and people with a disability containing 49 dwellings, on lot 2 DP 213438 and lot 3 DP 786602, known as 118-120 Koona Street, Albion Park Rail.

The site 2 The site is 1.4 ha in area, with a 9m frontage to Koona Street. On its southern and eastern boundaries the site adjoins Horsley Creek, while to the north it adjoins a council reserve. The western boundary adjoins a group of villa homes at 116 Koona Street. The rest of the surrounding development is low-density residential. 3 An area of 6,300m2 of the site contains native vegetation, mainly the endangered ecological community (EEC) Swamp Oak Floodplain Forest (SOFF). The presence of Coastal Saltmarsh (CS) was the subject of dispute. The remaining part of the site is either cleared or covered by buildings.

The proposal and its history 4 The applicant seeks to demolish the existing buildings on the site and to erect three buildings containing 49 dwellings for older people and people with a disability. A basement carpark is to accommodate 60 vehicles including staff and visitor spaces. 5 The applicant lodged the application in December 2003 and a revised application in June 2005. In March 2006 the council considered a report by its planning staff recommending refusal. The council accepted the recommendation. The applicant lodged the appeal in April 2006.

Relevant planning controls 6 The application was lodged under the then State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5). SEPP 5 applies to the application by virtue of a savings clause in its replacement, State Environmental Planning Policy Seniors Living. It applies to the land by virtue of its zoning as Residential 2(a) in the Shellharbour Local Environmental Plan 2000 (LEP 2000). 7 The Floodplain Development Manual, 2005 (FPDM) is a State Government document. While it is not statutory, it is relied on generally throughout New South Wales for guidance on development on flood-liable land. The council has its own document for the same purpose, the Floodplain Risk Management Development Control Plan (the DCP).

The issues 8 The council submitted a Statement of Issues containing eight issues of which it pressed four, which may, however, be expressed as three issues: · The proposal will have an adverse impact on the native vegetation. A SIS should therefore accompany the application. · The site is flood-prone and therefore not suitable for the development. · The site is remote from transport and facilities. 9 The third issue was resolved by the proposal incorporating a 10-person bus dedicated to the development and available to residents at all times to take them to shops and other facilities.

The objectors' evidence 10 The Court heard the objectors' evidence during a visit to the site. Ms P Thomson, who lives at 143 Koona Street, said that her concerns were the flooding of the site, the excessive size of the proposal, the number of trees to be cut down, traffic generation and the consequential danger to pedestrians in Koona Street. 11 Ms S Johns, who lives at 1/116A Koona Street in the group of villas that adjoins the site on two sides, was concerned about the proposal's impact on her dwelling. In addition, she endorsed the more general concerns of flooding, traffic as well as impact on vegetation and the natural course of the creek. The applicant amended the proposal to provide additional screen planting to reduce the proposal's impact on Ms Johns' property. 12 Mr A Thorogood, who lives at 119 Koona Street, said that the proposal contained too many units, the internal road was too narrow and the site is flood-prone. Mr R Smith, who lives at 139 Koona Street, said that he was concerned about water entering the proposal's basement. Mr J Godina, who lives at 98 Koona Street, and Mr F Hurley, who lives at 115 Koona Street, were both concerned about flooding and traffic. 13 Apart from Ms Johns, whose concerns were at least partially met, the proposal would not have a direct impact on the objectors, in the sense of overshadowing or overlooking. The council did not share the objectors' concern about traffic impact, nor was that concern supported by expert opinion. The concerns about flooding and impact on native vegetation were the two main issues nominated by the council and are discussed below.

Impact on native vegetation and need for SIS 14 It was common ground that the old s5A of the Environmental Planning and Assessment Act 1979 (the EPA Act) applied to this application. Under that section the test for significant impact on an EEC was the eight-part test, rather than the more onerous seven-part test, which is operative under the current s5A. 15 The Court-appointed expert on ecology was Mr G Winning, an ecologist. Mr Winning noted that it was common ground between the council's and the applicant's ecologist (Mr D Fanning and Dr K Mills) that SOFF was present on the site. However, Mr Fanning and Dr Mills disagreed on three major points: · whether there was also CS present on the site; · whether the proposal would significantly affect the EEC (or EECs) on the site, and whether a SIS is required to accompany the application; and · whether the proposal's impact on the native vegetation on the site is acceptable. 16 In Mr Winning's opinion, CS is not present on the site. He recognised that there was 1-2m wide strip of vegetation along the banks of Horsley Creek that could be considered CS; however, because of the narrowness of the strip and the fact that SOFF and CS share some common species, he preferred to consider the strip as a variant of the more widely distributed SOFF. 17 I find this characterisation of the vegetation on the site persuasive. I understand that it is not in major conflict with Dr Mills' views and it is consistent with those of Mr Fanning. 18 In relation to the second issue, the following facts are relevant. The site area is 1.4ha. The area of SOOF is 0.63ha. The SOOF is weed-infested, though the extent to which it was degraded was the subject of disagreement. The area of SOOF to be removed is 0.28ha. The area of SOOF to be reinstated is about 700m2. The estimate of SOFF in the Shellharbour area is 87ha. In the Sydney Basin Bioregion there would be many thousands of hectares of SOOF. 19 Mr Winning concluded that the proposal would not result in significant impact on the regional distribution of SOFF, and that therefore a SIS is not required. His principal reason was that the area of SOFF proposed to be removed is less than 1% of the area of SOFF present in Shellharbour. 20 I note that the council's ecologist, Dr Mills, considered that a SIS was required because he felt that allowing small amounts of removal, when repeated over a number of small proposals would result in the "death by a thousand cuts" of SOOF (and indeed any other EEC that is removed bit by bit). I think Dr Mills' argument has a lot of force. The reason why I nevertheless accept Mr Winning's conclusion is that the SOFF on the site is in a degraded condition. While the extent of weed infestation was subject to dispute, my own inspection of the area indicated that the ecological community was in a far from pristine shape. If the site remains undeveloped, the degradation is likely to continue until the ecological community becomes unviable. The proposal includes management of the vegetation that is left on the site after development. This factor, combined with the modest amount of reinstated vegetation, seems to me to balance the fact that between a quarter and a third of the vegetation is to be removed. 21 The proposal to reinstate the SOFF is a positive factor, even though it is likely that not all the SOFF proposed to be reinstated will grow to maturity. However, some of the area marked for reinstatement adjoins an existing forest and therefore has good chances of survival. Even if only part of the area of reinstated SOFF survives, it will reduce the net area to be removed to less than a quarter of the area covered by SOFF. 22 For the above reasons I accept the Court-appointed expert's finding that a SIS in respect of the SOFF is not required.

Flooding 23 It is common ground that two kinds of flood potentially affect the site. One is a flash flood from the creek. For this there is little warning time, so evacuation would not be possible. However, the duration of such floods is less than an hour. The second kind of flood is a lake flood. For this there is a warning system, the warning time is about 24 hours and the rate of rise of floodwaters is modest. The duration of peak flood is less than a day. 24 The council's case was that the site was subject to flooding and therefore not suitable for the proposed use. The applicant's case was that the floor levels were above the Probable Maximum Flood (PMF) and therefore residents would be able to wait out floods in their dwellings. Emergency evacuations could be achieved by vehicles that could pass through Koona Street, which itself would be flooded. It was common ground that, in a 1:100 event, ordinary sedans would not be able to pass through Koona Street. 25 The council's hydraulic expert was Mr E Rigby, while the applicant's was Mr P Nichols, both of them hydrologists. The two hydrologists were joined in concurrent evidence by Mr S Opper, the Director of Emergency Management, State Emergency Services. Mr Rigby and Mr Nichols agreed that, relying on the DCP's terminology, approximately two thirds of the site is in the High Risk Precinct, while the remainder (near Koona Street) is in the Medium Risk Precinct. 26 It was common ground between Mr Rigby and Mr Nichols that the proposal did not meet all the requirements of council's DCP. In Mr Nichols' opinion, the State government's FPDM should take precedence over the council's DCP, where these two documents are inconsistent. Mr Rigby accepts this, though he does not agree that the two documents are inconsistent in intent. I find it difficult to make a judgment on this aspect of the dispute, because the terminology used to describe the level of risk in the two documents is different, so that comparison is difficult. It is true that, as Mr Nichols points out, the DCP is directed towards preventing development on flood-liable sites, while the FPDM tends towards balancing flood risk with the economic development of land. 27 Mr Nichols, who relied on the FPDM, considered the risk posed by the proposal acceptable for the following reasons: · That part of the site that adjoins Koona Street was low true flood hazard. All habitable floors of the development were above the PMF level. Residents can stay in their dwellings during floods, which will last less than 24 hours. Flash floods from the creek, for which little warning can be provided, would last less than an hour. · Mass evacuation of residents will not be required as the development will be a safe refuge even in the PMF event. · For lake flooding, the flood warning system will provide adequate notice to enable evacuation of selected residents. · The permanently assigned 10-seater bus can negotiate a water depth of 0.8m. This would enable access in the 1:100 event (though not in the PMF). · 24-hour nursing care, resuscitation equipment and back-to-base communication to the aged-care operator are provided on the site. · While there would be no access in floods greater than the 1:100 event, such an event would result also in the closure of most regional roads in the Illawarra. The probability of the PMF occurring is very low. · The risk to people and property complies with the FPDM. 28 Mr Rigby took issue with Mr Nichols on the following grounds: · The proposal breaches numerous provisions of the DCP, in essence those that militate against intensification of use on High Flood Risk Precincts. · In particular the DCP warns against aged-care accommodation in areas that are considered appropriate for general housing (section G6.3). It also suggests that increasing the density of development on the floodplain will, without careful management of flood risk through appropriate land use planning, lead to increased flood damage exposure. · The FPDM does not provide a basis for assessing development applications. Rather it requires the preparation of Floodplain Risk Assessment Plans against which such applications can be assessed. The DCP is an attempt to prepare such a plan. 29 Mr Opper strongly opposed the development. His reasons were: · Mass evacuation in the 1:100 event would be difficult. · Evacuation in the PMF by vehicle would not be possible. · The site would become an isolated island unsuitable for old people who may need help urgently. · Residents may panic in floods and try and leave the site in their cars, which cannot negotiate Koona Street in the 1:100 event. Alternatively, they may want to return home during floods. 30 In Mr Opper's opinion, the site is unsuitable for any kind of development. 31 The task of assessing the above evidence (which I have quoted only in summary) is one of balancing the risk of developing a flood-liable site against the economic loss of sterilising it. I note that the site is zoned residential. While this fact does not excuse it from being assessed for flood risk, in an ideal world a council would not zone a site residential if it considers it unsuitable for development, which is Mr Opper's opinion. The question for the Court is to assess the risk posed by this proposal and to consider it in the context of risks that society accepts in other aspects of human activity. 32 The council's DCP contains numerous objectives and performance criteria that would suggest the site is unsuitable for medium density housing occupied by old people. Against this must be set the many safeguards that the applicant has incorporated in its proposal in order to reduce the risks to acceptable levels. 33 As mentioned above, two kinds of flood potentially affect the site. In a flash flood from the creek, evacuation would not be possible. However, the duration of such floods is short and the likelihood that someone would have to be evacuated within just the critical hour is very small. The residents would stay within the buildings on floor levels above the PMF level. 34 In a lake flood the warning time is adequate to evacuate anyone likely to need medical care. In the 1:100 year event evacuation by the bus assigned exclusively to this project would be possible, though ordinary cars will not be able to negotiate Koona Street. I note that ordinary cars cannot negotiate many other roads in the region in the 1:100 event. 35 In all events, including the PMF event, residents will be able to stay on the site. The length of isolation is less than 24 hours. Elementary medical equipment and nursing care is available on the site at all times. The only real risk seems to me a PMF event compounded by a resident needing to be evacuated just during such an event. 36 Various figures were quoted for the likelihood of the PMF event, ranging from one in a million years to one in 19,000 years. Even if all these estimates are wrong, and the chance of a PMF event is one in a thousand years, the risk remains very small. It is a level of risk that society accepts in all other aspects of human activity. 37 In my opinion, the flood liability of the site is not a reason for refusal.

2. Development application to demolish the existing buildings and construct housing for older people and people with a disability containing 49 dwellings on lot 2 DP 213438 and lot 3 DP 786602, known as 118-120 Koona Street, Albion Park Rail is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 11, F and H.

      Dr John Roseth
      Senior Commissioner

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