Neate v Shellharbour City Council

Neate v Shellharbour City Council - [2007] NSWLEC 526 - NSWLEC 2007 case summary — Zoe

[28]

1.1.1 The Policy Statement The primary objective of the policy is to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods, utilising ecologically positive methods wherever possible. That is: · a merit approach shall be adopted for all development decisions in the floodplain to take into account social, economic and ecological factors, as well as flooding considerations; · both mainstream and overland flooding shall be addressed, using the merit approach, in preparation and implementation by councils of strategically generated floodplain risk management plans; · the impact of flooding and flood liability on existing developed areas identified in floodplain risk management plans shall be reduced by flood mitigation works and measures, including on-going emergency management measures, the raising of houses where appropriate and by development controls; and · the potential for flood losses in all areas proposed for development or redevelopment shall be contained by the application of ecologically sensitive planning and development controls. … The policy shall be implemented in the following manner: · The management of flood prone land is, primarily, the responsibility of councils. In addition, the Department of Infrastructure Planning and Natural Resources (DIPNR) has a lead role in the development of regional strategies and plans under the Environmental Planning and Assessment Act (EP&A Act). Therefore, councils need to be cognisant of regional strategies and plans, when determining standards and implementation arrangements for flood prone land in their service areas. … 1.2 Purpose of the Manual The manual supports the NSW Government's Flood Prone Land Policy in providing for the development of sustainable strategies for managing human occupation and use of the floodplain considering the risk management principles outlined in Appendix B. These are based upon a hierarchy of avoidance, minimisation (using planning controls) and mitigation works. This manual provides councils with a framework for implementing the policy to achieve its primary objective. It considers the costs and benefits of floodplain occupation in full recognition that associated management decisions need to consider broader issues in an integrated approach. … 1.3 Who is the Manual for? The Manual is written principally for local government, including councillors, senior managers, engineers, planners, environmental officers, development assessors, reserve managers and others. However, the manual will also be of interest to other organisations and individuals involved in floodplain risk management such as government agencies, landholders, community groups and consultants.

[29]

Appendix G is headed "Flooplain Risk Management Study Preparation". Appendix L is headed "Hydraulic and Hazard Categorisation". 8 The DCP states that it was prepared under the umbrella of the FPDM. Its objectives include at cl 1.3(d) and cl 2.4.1: 1.3(d) Reduce the risk to human life and damage to property caused by flooding through controlling development on land affected by potential floods. … 2.4.1 Objectives (a) To ensure the proponents of development and the community in general are fully aware of the potential flood hazard and consequent risk associated with the use and development of land within the floodplain. (b) To require developments with high sensitivity to flood risk (eg critical public utilities) be sited and designed such that they are subject to no or minimal risk from flooding and have reliable access. (c) Allow development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls, provided that the potential consequences that could still arise from flooding remain acceptable having regard to the State Government's Flood Policy and the likely expectations of the community in general. (d) To prevent any intensification of the use of High Flood Risk Precinct or floodways, and wherever appropriate and possible, allow for their conversion to natural waterway corridors. (e) To ensure that design and siting controls required to address the flood hazard do not result in unreasonable impacts upon the amenity or ecology of an area. (f) To minimise the risk to life by ensuring the provision of appropriate access from areas affected by flooding up to extreme events. 9 The DCP sets out three steps to determine the relevant criteria applying to a development application. Step one is identifying the land use category, here "critical utility" because the proposed development is a Senior's Living SEPP development. Step two is determining which floodplain and part of the floodplain the land is located in by reference to flood risk mapping (2.3 DCP). Two thirds of the land is located in a high flood risk precinct and one third is in the medium/low flood risk precinct (see [25] of judgment). Step three requires the controls outlined in cl 2.4 of the DCP be applied. In this case the site is identified as unsuitable for the land use for which development consent is sought.

[31]

Council's submissions 11 The Senior Commissioner committed an error of law because he failed to take into account a relevant consideration, namely, failing to give real and proper consideration to the DCP. This case fits squarely within Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 602. It is clear that the Commissioner was aware of the DCP from the judgment at [25], [26] and [32]. His failure was that he did not regard it as a fundamental element of his decision making. Rather, having considered it, he adopted his own test at [31] as to how the flood risk issue should be determined by reference to his perception of the risk society was prepared to accept. In doing so he misdirected himself on the application of the DCP. 12 The DCP recognises that the implementation of safeguards could sufficiently address flooding risks so as to make land uses suitable in some locations but also recognises that certain land uses are not suitable in certain flood risk precincts and the implementation of safeguards will not render them suitable. The proposed land use is classified as unsuitable and, on a proper application of the DCP, the implementation of safeguards did not render suitable what was unsuitable land use in the high risk precinct. While the Senior Commissioner recognised that the provisions of the DCP suggest the site is unsuitable for the proposed use, he erred by approaching the matter as if operational safeguards proposed by the Applicant should be set against the unsuitability. His approach was that the DCP only made an assessment of flood hazard, leaving the balancing of risks and safeguards to be determined outside the DCP against the test of what degree of risk society accepts in other aspects of human activity. Applicant's submissions 13 In the Joint Report the experts acknowledged and agreed that: (a) approximately two thirds of the development site is in a higher risk precinct as defined by the DCP and thus is inconsistent with the DCP to that extent (Joint report, Exhibit 9, particulars 3.1.2); (b) the DCP is based on a provisional hydraulic hazard rather than the true hazard as promoted by the FPDM (Joint report, Exhibit 9, particulars 3.9); and (c) Provisional hydraulic hazard is only a starting point in the assessment of the true hazard as described in the FPDM (Joint Report, Exhibit 9, particular 3.4). (d) If there is an inconsistency between the DCP and the FPDM, the DCP gives way to the FPDM (Joint Report, Exhibit 9, particular 3.1.2).

[34]

Finding on grounds 1 and 2 18 The grounds of appeal 1 and 2 require a close examination of what the Commissioner did in his judgment. The full text of the Senior Commissioner's findings on flooding is set out above at par 4. This shows that he summarised the two flooding issues [23], the Council's case [24] and the three experts' respective evidence [25] - [30] before posing the question about balancing risk at [31], as reflected in his approach at [32]. At [33] - [36] he considered the risks of flooding impacts in relation to the two issues in light of the safeguards proposed by the Applicant and concluded these are acceptable in light of the risk that society accepts in all other aspects of human activity. The Commissioner concluded at [37] that flood liability is not a reason for refusal. It is clear from the judgment that the Senior Commissioner was aware of the DCP's provisions in relation to the site. While not deciding whether there was an inconsistency between the DCP and the FPDM (the difficulty of doing so is referred to at [26]) he accepted the evidence of the expert Mr Nichols who applied the FPDM not the DCP. This suggests he considered he could apply the FPDM in the alternative to the DCP. 19 One issue raised in dealing with grounds 1 and 2 is the relationship between the FPDM and the DCP. It is clear from reading the objectives of both documents referred to in argument by the parties that they are intended to be complementary and not conflicting. I note that the experts did not agree that the documents were conflicting although they did agree that if there was conflict the FPDM should prevail. The FPDM is described in the judgment as having no statutory standing and if that is correct suggests that the conclusion of the experts may not be correct in the context of this case. 20 The statutory standing of the FPDM was not raised in written submissions and I had only brief oral submissions before me. It is not an environmental planning instrument made under the EP&A Act. There is a s 117 direction under the EP&A Act which states that draft local environmental plans (LEPs) shall be consistent with the FPDM as required in Direction No 15 - Flood Prone Land (30 September 2005, revised 31 January 2007). The application of this direction, if any, in this case was not addressed. For completeness I note that I was advised by the Applicant's counsel the FPDM has statutory standing in the context of s 733 of the Local Government Act 1993 which concerns council liability. It is not submitted this provision has any role to play here. As already noted there was no agreement between the experts that there was inconsistency between the FPDM and the DCP. The documents are intended to perform different functions based on the extracts set above at par 7 - 8. In the absence of any clear indication that the FPDM must take precedence in a legal sense over the DCP in the assessment of a development application I doubt that they should be considered as simply alternative approaches. 21 It also appears that the approach of Mr Nichols summarised by the Commissioner at [27] in applying the FPDM may not be correct for another reason. The Applicant's counsel referred in submissions to the hydraulic and hazardous categorisation Appendix L as applicable. While I was not referred in any detail to Mr Nichols's evidence the inference I draw is that his conclusions summarised at [27] of the Senior Commissioner's judgment were based in part on the application of that appendix in the context of assessing an individual development application. That does not appear to be the correct use of this appendix. The purpose of these hydraulic and hazard categories is stated in Appendix L to be: 1.2 Purpose of the Categories

[38]

In my opinion, the Commissioner did not "take into consideration" the standard contained in cl 4.0 of DCP 23. Rather, he substituted for the statutory requirement a different approach. The Commissioner posed the "issue" for his determination to be: "The appropriateness of the location taking into account the proximity to the adjoining church, local schools and hotel". He resolved this issue on the basis that adverse impact upon land affected by the presence of a brothel had to be demonstrated in the legal proceedings before him. This approach could only be supported if the discretion was entirely at large, i.e. that there were no "standards" of any character which the decision maker had to take into account. By adopting this approach, the Commissioner, in my opinion, proceeded on an impermissible basis. 24 There are substantial similarities between the facts in Zhang, as outlined in the passage above, and those before me given the question the Commissioner posed at [31] (second sentence). I agree with the Council's submissions that the test identified by the Commissioner is his own subjective test and not that contained in the DCP. In the words of Zhang he "substituted for the statutory requirements a different approach". The DCP, which I accept was clearly acknowledged in the judgment as to its effect, was not treated by the Senior Commissioner as a focal point of his decision. That incorrect approach is reflected in the question posed in [31] and the approach in [32] of the judgment. This is the issue raised by ground 1. 25 Further, for the reason outlined above at par 19 - 22, I consider the Senior Commissioner did misdirect himself on the application of the DCP to the proposed development (ground 2). I consider grounds 1 and 2 should be upheld. Any further consideration of the flooding issues when remitted to a commissioner should be in the context of a proper understanding by the parties and their experts of the legal framework for the management of flood prone land when assessing individual development applications. I do not consider this issue was fully canvassed in argument before me and, while I have held there was not a proper application of the DCP, it as a matter that requires clarification when this matter is reconsidered.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Cases Cited (3)

Cited By (2)