Newland Developers Pty Ltd v Tweed Shire Council

Land and Environment Court (NSW)|2023-12-22

Background

The redevelopment of the subject site has been considered by the Court on two previous occasions. On the first occasion a development application was made to the Council in 2015 seeking consent to subdivide the site into 65 lots over two stages. The development application was refused by the Council on 13 October 2015. On 24 January 2017, the Court dismissed an appeal against that refusal (Newland Developers Pty Ltd v Tweed Shire Council [2017] NSWLEC 1021). On the second occasion the Applicant made a Development Application (DA 18/0133) for the subdivision of the Site into 68 residential lots in addition to public reserves and drainage reserves. It was subsequently refused by the Council, whose refusal was upheld by the Court in the decision Newland Developers Pty Ltd v Tweed Shire Council [2020] NSWLEC 1107.
The current proceedings differ from the previous matters considered by the Court as the Concept DA seeks development consent for a seniors housing development pursuant to SEPP Seniors. Further, the development application is made pursuant to s 4.22 of the EPA Act and is a concept development application with consent sought for Stage 1 works.

Expert Evidence

The Court was assisted by a broad range of experts, as detailed below:

Planning and Urban Design: Darryl Anderson, Consultant Planner and Nigel Dickson, Architect Planner and urban design for the Applicant and Jeff Mead, Consultant Planner for the Respondent.
Bushfire: Peter Thornton for the Applicant and Melanie Jackson for the Respondent.
Geotechnical Engineering: Mark Ballard for the Applicant and Paul Roberts for the Respondent.
Landscape, Arboriculture: Rob Henderson, landscape expert and David Gunter, arboriculture expert for the Applicant. Murray Smith, open space for the Respondent and Melanie Howden, arboriculture expert for the Applicant.
Social Planning: Judith Stubbs for the Applicant and Vanessa Bennett for the Respondent.
Civil Engineering: Brian Lees for the Applicant and Mick Denny for the Respondent.
Stormwater: Tony McAlister for the Applicant and Daniel Martens for the Respondent.
Flooding: Martin Giles for the Applicant and Daniel Martens for the Respondent.
Water and Sewer: Brian Lees for the Applicant and Nicholas Darwin for the Respondent.

In determining the Concept DA and the s 68 Application I have read and considered the evidence of the experts in their joint reports, and where relevant in their oral evidence.

Is the development compliant with cl 26 of SEPP Seniors?

In their written submissions, the parties agree that cl 26 is a matter on which the Court must form an opinion or reach a state of satisfaction are met in relation to the development application.
Clause 26 of SEPP Seniors contains a standard in relation to access for future residents to listed facilities. It is a development standard: Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153. The provision states: 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to - (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. (2) Access complies with this clause if - … (c) in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area) - there is a transport service available to the residents who will occupy the proposed development - (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). Note - Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable - (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time. (4) For the purposes of subclause (2) - (a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause - bank service provider means any bank, credit union or building society or any post office that provides banking services.
The Applicant was granted leave for and relied on an amended Transport Management Plan (TMP) prepared by DAC Planning dated 13 December 2022. In addressing cl 26 of SEPP Seniors, the TMP proposes a community bus to service the development. The proposal can be summarised as follows:

A community bus will be provided to the Community Association and will have a maximum capacity for 22 people and will make provision for wheelchair accessibility.
At a minimum the community bus will provide access to: "(a) shops, bank service providers and other retail and commercial services that residents may reasonably require; and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner" (Exhibit O)
The bus will pick up occupiers of future dwellings at the proposed bus stop adjacent proposed Lot 92.
A hail and ride system will apply to residents who occupy future lots 2-14 in Sawtell Circuit and Seabreeze Boulevard.
The bus service will deliver passengers to Pottsville Shopping Centre and Kingscliff Town Centre.
That the proposed community bus will operate on weekdays with a drop off service in the morning prior to 11am and a pick up service in the afternoon after 2pm. For residents in proposed lots 2 thru 14, the bus operates as a 'hail and ride' service.
That the gradient of the access pathway complies with the maximum 1:14 gradient to all proposed seniors housing lots.
That works are required at the destination of the bus, including the provision of a complying crossing at Elizabeth Street, Pottsville near Pottsville Beach Neighbourhood Centre to meet the access requirements of cl 26 of SEPP Seniors.
That the preceding arrangements meets the requirements of cl 26(2)(c) of SEPP Seniors. (Exhibit O)

This proposal is reiterated in the Social Impact Assessment prepared by Judith Stubbs and Associates (SIA) which includes an assessment of access to services and facilities in Pottsville and Kingscliff shopping centres. That report concludes that for access to comply with cl 26(2)(c)(ii) of SEPP Seniors a pram/kerb ramp is required on eastern side of Elizabeth Street near the community centre at Pottsville. Whilst the SIA also identifies that access to the medical centre at Kingscliff is not accessible, given access is achieved to the medical centre at Pottsville, this is not an impediment in this case.
The TMP was the subject of expert evidence from the town planning experts in the proceedings, Mr Jeff Mead for the Respondent and Mr Darryl Anderson for the Applicant. In their joint report the experts note their agreement on the following matters: "We agree that all lots within the proposed subdivision except Lots 2 to 14 are within 400m of the proposed private bus stop located adjacent to Lot 92. We agree that all of those lots (except 2 to 14) will have access to an accessible pathway that will lead to the private bus stop provided that each allotment is developed in the future in a manner that provides an accessible pathway from their front door to the footpath within the road reserve for which civil plans have been provided. We agree that no plans have been provided to demonstrate the pathway on individual lots. The requirement for a compliant pathway with any future dwelling application should be included in the proposed covenant for each lot. … We agree that the TMP refers to physical works that would be necessary at the destination of Pottsville to meet Clause 26. These include the provision of a complying crossing of Elizabeth Street, Pottsville near Pottsville Beach Neighbourhood Centre. With the works, and subject to a condition that required the design be compliant with the SEPP (such as kerb ramps), the destination could be made fit to meet Clause 26. The experts understand that no formal discussions have been held with Council staff or its Traffic Committee to ascertain whether this would be acceptable from a traffic point of view. The experts agree that no separate approvals have been sought for these works. We agree that Lots 2 to 14 do not meet the requirement for distance to a bus stop. We agree that the statement in the TMP that the "hail and ride" service is "not required by clause 26(2)(c)" should be deleted. Without some arrangement for Lots 2 to 14, they would simply not be serviced and Clause 26 would not be satisfied. The TMP seeks to address this by proposing that those future dwellings will be serviced by the same bus that services the bus stop adjacent to Lot 92. This would be on the basis of what is described as a "hail and ride" system where residents would contact the bus driver prior to 11.00am to arrange pick up from their property or wait at the front of their property, or another property in Sawtell Circuit or Seabreeze Boulevard to be picked up. There is no bus stop proposed, rather pick up would be informal on the street by way of a "hail and ride" system. It is agreed that any bus service to serve residents of Lots 2 to 14, and in fact the overall subdivision, should not be "on demand" but rather should serve residents at a consistent time on a daily basis in a similar fashion to a public transport service. The TMP provides for a "hail and ride" system for Lots 2 to 14 and provides for a bus stop adjacent to Lot 92 to service residential Lots 15 to 91." (Exhibit O)

He relies on the letter of Meinhardt Engineering dated 13 December 2022 which concludes that they are confident that a complying kerbside crossing, in accordance with Tweed Shire Council's standard drawing SD 014 can be provided on the eastern side of Elizabeth Street,
That the conditions of consent for the development application should incorporate the requirement that the crossing is completed prior to the issue of an occupation certificate for the first dwelling on the proposed lots.
That given the minor nature of the crossings, the proposed provision by the developer but being and available for general public use, and having regard to Tweed Shire Council's normal practice, there is no reasonable basis to require owner's consent, for the works within the Elizabeth Street Road reserve, prior to approval of the subject development application.

Finally, in response to Mr Mead's concerns about the ability of future residents in dwellings on Lots 2, 3, 4, 6, 7, 8, 10, 11, 12 and 14 to access the bus, Mr Anderson argues these residents could proceed to Lots 5, 9 or 13 via the concrete footpaths within the road reserve and access the bus via the side door. All lots would still be within 400m of pick up point.

Findings

Clause 26(2)(c)(i) of SEPP Seniors requires the bus service to be 'located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway'. In this matter, the development application of the proposed development is the whole of Lot 1747 DP 1215252. I accept the Applicant's submission that the development application proposes a bus stop within the Site (outside proposed Lot 92), rather than externally to it. Accordingly, the location of the bus stop meets the requirement of cl 26 of SEPP Seniors. In this context, the proposed arrangements for a 'hail and ride' service for residents is an additional provision that adds convenience and amenity beyond compliance with the minimum standard.
Any consent granted would require that the updated TMP will continue to provide a community bus service in perpetuity funded by levies in the Community Association. Further, that the Applicant would be required to fund the initial bus expenditure to ensure the bus will be available when the first occupation certificates for Stage 1 dwellings are released. Community Association levies will then fund the ongoing maintenance and operation of the service.
At the destination end of the bus trip, it is clear on the evidence that works are required in Elizabeth Street in Pottsville to facilitate compliance. This involves the creation of a pram/kerb ramp. To meet the precondition at cl 26(1) of SEPP Seniors, the suitable access pathway must meet specific criteria listed in subcl (2) of the provision. In relation to the end of the bus trip in these proceedings, the relevant requirements are:

That the bus takes the residents to a location that is not more than 400m from the listed facilities and services nominated in subcl (1); and
The gradient along the pathway from the transport services (the bus) to the facilities and services complies with the gradient requirements at subcl (3).

I am satisfied on the written evidence contained in the SIA, the TMP, the agreed evidence of the town planning experts (summarised at [60]), that the destination end of the bus stop is capable of complying with cl 26 of SEPP Seniors. The question is one of certainty given the works required do not form part of the works for which consent is sought under the development application. On balance, I find I can be satisfied that cl 26 of SEPP Seniors is met on the following reasoning:

It is necessary to consider the likely impacts of the works in Elizabeth Street to construct the pram/ kerb ramp as it is an off-site impact that is caused by "some further undertaking that is 'inextricably involved' with the proposed development": Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at [101] and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at [534]-[535].
In my assessment the works are minor and will have little or no adverse impacts during or after construction. In fact, on balance the works will have a net benefit to the public by improving accessibility for the general public as well as future residents of the subdivision. In determining the Concept DA, I have taken these impacts into consideration under s 4.15(1) of the EPA Act.
In contrast with Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Ballina v Palm Lakes) at [54], I am satisfied that the pram/kerb ramp is an activity for which consent is not required pursuant to s 2.113(1)(a) of State Environmental Planning Policy (Transport and Infrastructure) 2021.
The Applicant has prepared, and relied on, the letter from Meinhardt Engineering which states confidence in the installation of a complying kerb crossing.
That a condition is imposed on any consent for the Stage 1 development application requiring the completion of the pram/kerb ramp at the developer's cost prior to the issue of any Subdivision Certificate for Stage 1.

However, on merit, I accept the concerns of Mr Mead that proposed Lots 2 through 14 have no accessible path to the bus stop adjacent to proposed Lot 92 internal to the development. Residents will rely on the effectiveness of the 'hail and ride' bus service. To that end, on merit, the suitability of the proposed pad levels (determined by the flooding constraint of the site) for facilitating accessibility for future residents between the proposed road levels and the finished floor levels mandated for the future dwellings is a concern. The indicative ramps shown on the plan annexed to the TMP plainly demonstrates this. I accept and adopt the concerns of Mr Mead detailed at [63] that the setting of the road levels and the pad levels in the Concept DA will result in extensive ramping within the proposed lots to achieve acceptable disabled access where such access is required to facilitate the use of the Site for housing for seniors and people with a disability.
Whilst I am satisfied technical compliance with cl 26 of SEPP Seniors is achieved, in my view the requirement for the finished floor levels of future dwellings at or above the PMF (RL 4.5 AHD), in combination with the currently proposed road levels (for example 3.051 AHD in Seabreeze Boulevard) creates a likely poor access outcome which will impact the quality of the urban design and streetscape of the ultimate subdivision. This likely impact is a matter relevant to the merit assessment of the Concept DA and Stage 1 and the consent authorities' consideration of the principle at cl 33(c)(ii) of SEPP Seniors, to which I must be satisfied the proposed development has had adequate regard to meet the precondition at cl 32 of SEPP Seniors. The findings made in these paragraphs at [72] and [73] demonstrate that the siting of the building/fill pads proposed in the subdivision will, in the lots nominated, detrimentally impact on future neighbourhood amenity and character. On this basis I find I cannot be satisfied that the precondition at cl 32 of SEPP Seniors is satisfied by the Concept DA.

Can the Court be satisfied that the housing will be connected to reticulated water and have adequate sewer facilities?

Clause 28 of SEPP Seniors is extracted at [42]. Clause 28(1) establishes a condition precedent to the grant of consent by a consent authority. The condition precedent is the formation by the consent authority of a positive opinion of satisfaction, to be formed on the written evidence before the consent authority at the time of its determination of the development application, that the water and sewer services referred to in the clause will be provided: Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297 at [38]. Ballina v Palm Lakes at [42].
In these proceedings the Applicant seeks to satisfy the consent authority as to the provision of water and sewer services by concurrently applying for the s 68 Application approval for water and sewer supply works. As such the written evidence which supports the satisfaction of cl 28(1) of SEPP Seniors is sought to be achieved by the approval of that application.
Section 68 of the LG Act provides: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. … Part B Water supply, sewerage and stormwater drainage work 1 Carry out water supply work 2 Draw water from a council water supply or a standpipe or sell water so drawn 3 Install, alter, disconnect or remove a meter connected to a service pipe 4 Carry out sewerage work 5 Carry out stormwater drainage work 6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer …
Further, in determining the application made pursuant to s 68 of the LG Act, the Court must have regard to the matters a s 89 of the LG Act. They are: 89 Matters for consideration (1) In determining an application, the council - (a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and (b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and (c) must take into consideration the principles of ecologically sustainable development. (2) If no requirements are prescribed for the purposes of subsection (1)(a), and no criteria are adopted for the purposes of subsection (1)(b), the council in determining an application - (a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and (b) is to seek to give effect to the applicant's objectives to the extent to which they are compatible with the public interest. (3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include - (a) protection of the environment, and (b) protection of public health, safety and convenience, and (c) any items of cultural and heritage significance which might be affected.
LEP 2014 at cl 7.10: Essential services also contains a precondition which requires the consent authority to be satisfied that any of the following services that are essential for the development are available, or adequate arrangements have been made to make them available when required:

The supply of water
The supply of electricity
The disposal and management of sewerage
Stormwater drainage or on-site conservation
Suitable vehicular access

Relevant to this issue, the Court was assisted by expert engineering evidence from Mr Brian Lees on behalf of the Applicant, and Mr Nicholas Darwin for the Respondent. The experts jointed conference and produced an expert report which was tendered as Exhibit 12 in proceedings 2022/297766 and Exhibit 8 in proceedings 2022/55836. The experts were called for cross examination.
Through the process of joint conferencing, issues such as the certification and legibility of the civil engineering plans were resolved. The key issue that remains between the engineering experts is whether a detailed survey of existing sewer and water infrastructure impacted by the proposal and other adjacent infrastructure in proximity to the proposed Council assets is required. The Respondent argues that the survey is necessary to confirm that adequate clearance can be provided to the proposed infrastructure and that the survey is required to confirm the infrastructure location, depth and invert levels and is to be conducted by the registered surveyors utilising field survey data. Further, the Respondent argues that the resulting survey data should be incorporated into the civil design plans (Exhibit N) to confirm that adequate clearance is achieved between the proposed and existing infrastructure.
In his evidence in relation to the s 68 Application, Mr Lee argues that a detailed survey of the type requested by the Council is unreasonable and unnecessary. His reasoning can be summarised as follows:

That in his previous experience with Tweed Shire Council, no such requirement has been sought by the Respondent in either s 68 Applications or at Construction Certificate stage and reliance on the Council "as constructed" drawings to locate existing water and sewer assets has always been sufficient.
Those "as constructed" drawings on which the Applicant relies on have specific and rigorous requirements. He states: "2.5.4. Council "as constructed" drawings for existing Water and Sewerage infrastructure has always been sufficient. In my experience TSC will not accept "as constructed" drawings for any completed civil construction works unless it has been prepared by a registered surveyor utilising field data upon completion of the work. The "as constructed" drawings are then signed by the registered surveyor as a true and accurate record of the works constructed. In addition to the registered surveyors certification of the "as constructed" drawings, the consulting engineer is also required by TSC to certify that he has checked the "as constructed" survey provided by the surveyor and that such survey is a true and accurate record of the engineering drawing detail shown on the Construction Certificate Approval. 2.5.5. It is also a requirement of TSC that such "as constructed" drawings, with registered surveyor and consulting engineer certifications be checked and vetted by Council officers before an "as constructed" approval is issued in order for the Subdivision Certificate Application to be approved and allow titles to be registered." (Exhibit 12)
Given the rigorous requirements for the acceptance of "as constructed" drawings it is unreasonable for them to not be relied on for the purposes of the s 68 Application.
That in the absence of "as constructed" drawing of the existing infrastructure, it would be appropriate to require a survey to be undertaken, but that is not the circumstances for this application. (Exhibit 12)

In the alternative, Mr Darwin argues that in the absence of survey information requested by the Respondent, it is unclear if the water and sewer supply works proposed by the s 68 Application can be constructed as proposed. Further, he argues that the survey information would inform the design of the water and sewer proposed.
In relation to the asserted uncertainty that the absence of a detailed survey creates in relation to the s 68 Application, Mr Darwin argues: "2.6.3 Council's "as constructed" survey for pressure sewage mains and water mains rarely show the detailed longitudinal vertical alignment of their locations. Furthermore, their accuracy at a given point is questionable, but are generally acceptable for the overall confirmation of their location. 2.6.4. It should be noted that Council's as constructed records do not show the location or provide appropriate detailed information of telecommunication and electrical assets which have also been shown in Attachment 3. 2.6.5. It is also unclear as to how Mr Brian Lees shown the location and existence of existing services and how he is able to display them with respect to the sewer and water designs. 2.6.6. Therefore I am of the opinion that all existing services as shown in Attachment 3 have [not] been appropriately considered. This presents an inherent construction risk in the carrying out of water supply and sewerage works in accordance with Section 68 of the Local Government Act. 2.6.7. For Council to grant such an approval, Council has to be confident that the works can be constructed in a safe manner which protects existing services and does not compromise the proposed sewerage and water works. In order for Council to issue a Section 68 Approval for Sewerage and Water works, Council has to be confident that the plans are of a standard to be issued for construction. 2.6.8. Without survey information incorporated into the design, parties involved in the carrying out of water supply and sewerage works can have little confidence that the design as shown in Attachment 3 can be constructed as proposed. This is because there is no information on the depth, size, vertical and horizontal alignment, material and presence of services and location of services." (Exhibit 12)
Mr Darwin further develops his conclusion of lack of confidence that the works can be approved and constructed as shown with the following example: "2.6.10. For example, the cover, i.e. the depth to the obvert (top) of a pipe for a water main is 500 mm as defined in TSC Development Design Specification D11, Section D11.08, point 1 and the cover of a pressure sewer pipe as shown in the TSC Development Design Specification D12, Section D12.09, Point 2 is also 500 mm. Attachment 3's water connection detail shows a minimum of 300 mm vertical clearance between the sewer rising main and the water main. If these existing services were constructed to these standards, it would be physically impossible to construct the water works in accordance with the Connection Detail in Attachment 3 without either having vertical bends at locations which are not shown in attachment 3, or, significant vertical deflections of water pipe joints which may not be feasible to achieve the clearances nominated on the "Water Service Connection to Entry" and the "Water Service Connection to Lot 14" as shown on Drawing no. 23, Rev A in Attachment 3. This an example as to why I am not confident that the works can be approved and constructed as shown." (Exhibit 12)

The Sewer Equivalent Tenement (ET) Limit

The other matter relevant to the satisfaction of the preconditions at cl 28 of SEPP Seniors and cl 7.10: Essential services in LEP 2014 is the capacity available within the Council's sewerage network to service the development. The Respondent's Statement of Facts and Contentions notes that: "Council's sewer network capacity is already allocated [with] respect to current, zoned and approved/ permitted development within the SPS5025 - Seabreeze Boulevard Pump Station (SPS) Catchment and its associated downstream sewerage infrastructure to the Wastewater Treatment Plant." (Exhibit 2)
Section B15.2.8: Services and Utilities Strategy of DCP 2008 notes that of the available 200 ET for the land in the Pottsville estate that was, at that time, undeveloped, 63.5 ET was allocated to the 'Potential School Site'.
Despite the provisions of DCP 2008, due to downstream upgrades that have been completed, the Council accepts that the maximum sewer capacity of the site is 71 ET. The Respondent notes that: "The downstream receiving regional sewer pump station SPS -2023 on Korora Parkway has been upgraded to its maximum capacity along with the downstream conveyancing system. Therefore, Council cannot permit a sewer loading of more than 71 ET for this site as this would result in overloading of the SPS -2023 pump station in wet weather. The capacity of SPS-2023 is fully allocated at this time with no practical opportunities for further upgrades. SPS 2023 has no capacity to receive any increased loading from the upstream SPS-2025 and increased sewer loading beyond 71 ET from this site." (Exhibit 2)
Mr Lees and Mr Darwin undertook joint conferencing and prepared a joint report in relation to this matter.
Mr Lees argues that on the following basis the sewer load of the proposed development can be accommodated: 1. Utilising the rates provided in Tweed Shire Council's Fees and Charges and the "Water Directorate, Section 64 Determinations of Equivalent Tenements Guidelines, April 2017 Section 5.1.2" and p16, Section 7 "Standard ET figures - Residential User Categories", the following ET rates are adopted:

1 bedroom dwelling: 0.5 ET
2 bedrooms dwelling: 0.75 ET
3 bedrooms dwelling: 1.0 ET 1. Applying these rates to the subdivision concept plan, the following 'allocation' of ET capacity is proposed: (Exhibit 8) 1. That the preceding 'allocation' of ET capacity should form a condition of approval and be reflected in the registered lot title, so that future purchasers are aware of the relevant restriction.

Mr Lees concludes that the preceding approach will give certainty that the development of the site can proceed within the limitations and capacity of Council's existing sewer infrastructure.
In the alternative, Mr Darwin expresses concern about the appropriateness and practicality of Mr Lees' approach to limiting future dwelling sizes as a means of ensuring the development is within the capacity of Council's existing sewer infrastructure. His concerns are: 1. Whether such a potential condition is appropriate given the scope of the approvals sought. 2. Whether Council has the appropriate and practical measures to regulate such a condition. Particularly given the sewer loading of the development as proposed by Mr Brian Lees is quite close to the limit of what Council's sewerage network can receive. 3. Whether such a condition does or does not facilitate a sound town planning and development outcome. 4. The novelness of the approach of the Applicant in relying on a condition to manage limited sewer capacity. (Exhibit 8)
The relevant conditions of development consent proposed by the Respondent, on a without prejudice basis, are as follows: "11. The sewer loading for the development shall not exceed the ET calculation schedule in the following table: … Prior to the issue of a Subdivision Certificate 126. The creation of Easements for services, Rights of Carriageway and Restrictions as to user (including restrictions associated with planning for bushfire) as may be applicable under Section 88B of the Conveyancing Act including (but not limited to) the following: … (h) A positive covenant pursuant to Section 88B of the Conveyancing Act shall be created for every residential allotment. The covenant is to require that each allotment shall only be developed in accordance with the building footprint, height, setbacks, housing type and design (including location of open space and window design) set out in the Proof of Concept Plan pages 12 to 15. The dwelling mix and dwelling types shall be in accordance with the Project Summary table on sheet 22‐017 DA‐0‐002, dated 10.8.22 prepared by DR and detail sheets 206 to 210 and 212 to 217 excluding the number of bedrooms which is otherwise limited to an overall capacity of 71 ET. …" (Exhibit 21)
The relevant conditions of development consent proposed by the Applicant are as follows: "General … 8. Separate development application/s will be required for development of individual allotments that are approved by this development consent. Approval shall not be sought or granted by way of Complying Development Certificate under the SEPP (Exempt and Complying Development Codes) 2008. … 12. The sewer loading for the development shall not exceed the ET calculation schedule in the following table: … Conditions that apply to Stage 1 development consent … 18. A restriction on use pursuant to s88E of the Conveyancing Act 1919 over the residential lots must be created: (a) to prevent the carrying out of any dwelling construction on the site by means a complying development certificate (as defined in the Tweed Local Environmental Plan 2014 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, as amended from time to time; (b) to restrict use and occupation for seniors housing purposes in accordance with clause 18 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; and (c) to prevent the erection or alteration of a dwelling on each residential lot that would exceed the number of bedrooms for the given lot specified in condition 012, and each restriction must be for the benefit of Tweed Shire Council (and these restrictions must be imposed when the site is subdivided). … Prior to the issue of a Subdivision Certificate … 135. The creation of Easements for services, Rights of Carriageway and Restrictions as to user (including restrictions associated with planning for bushfire) as may be applicable under Section 88B of the Conveyancing Act including (but not limited to) the following: … (h) A positive covenant pursuant to Section 88B of the Conveyancing Act shall be created for every residential allotment. The covenant is to require that each allotment shall only be developed within the building maximum building areas set out in the Proof of Concept Plan on page 12. …" (Exhibit P)

Submissions

In relation to the s 68 Application, Ms Irish, the Respondent's Counsel, emphasis that the application is for works and no further approval is required before the Applicant can undertake those works. She argues that in that circumstance it is appropriate for the Council to seek to be certain, by the provision of survey information, that the works can be constructed with appropriate clearance from other services.
In relation to the Concept DA, Ms Irish's key submissions focus on the practicality of utilising firstly a consent condition, and ultimately a restriction on use of the proposed lots, to ensure compliance with the ET capacity of the Site. She makes the following submissions:

That it is unclear how the Applicant's proposed restriction relating to Complying Development Certificates (CDC) would function, or come to the attention of, a Private Certifier. (See proposed condition 18(a) at par [98])
That Mr Darwin's evidence emphasises the closeness of the proposed sewer load from the development to the capacity of the Councils infrastructure effectively exhausting the capacity with no margin for risk management.
That the table detailing the 'allocation' of ET's to specific lots does not accord with the schedule of dwellings on the proposed lots contained in the Proof of Concept Plan for seniors housing in Exhibit C. (Respondent's written closing submissions dated 16 December 2022)

On the preceding basis, Ms Irish submits that the Court would not be satisfied that the housing will be connected to the reticulated water system (as the s 68 Application is uncertain) and have adequate facilities for the removal and disposal of sewer (as compliance with the maximum ET limit is uncertain).
In the alternative Ms Reid for the Applicant confirms that, in relation to the development application, the Concept DA is for a development with the following mix of dwellings: 21 x 1 bedroom dwellings, 63 x 2 bedrooms dwellings and 13 x 4 bedrooms dwellings. A mix she argues is consistent with the allocation of ET. She notes that it is a requirement of s 4.24 of the EPA Act that future development applications on the site are consistent with the consent for the concept proposal, including the conditions. She submits that the condition is sufficient to ensure that the limit on the capacity of the Councils sewer system is complied with. In response to the concerns expressed by Ms Irish in relation to CDC's, Ms Reid argues: "The legislative scheme operates to ensure that a complying development certificate may not be issued in circumstances where there is a restriction on title precluding it. The Council wonders out land how the restriction would come to the attention of a registered certifier. It is not a mystery. Clause 1.20 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 operates to specifically not suspend the covenant. A registered certifier, consistent with their professional obligations, making an assessment against the Code, could only make that assessment by undertaking (or requiring provision) of a title search. The covenant would therefore come to the attention of the certifier and would have the desired effect." (Applicant's written submissions in reply dated 22 November 2022)
To the extent, Ms Irish raises concern about the inconsistency between the schedule of dwelling types nominated in the Proof of Concept plans and the ET allocation in the table to condition 12 and annexed to the expert report, Ms Reid argues: "There is agreement between the experts that the proof of concept should form part of the consent. The proof of concept sets out building envelopes on p12. To the extent that the schedule on p13 identifies bedroom numbers, it is to be read with the Mills Oakley letter in EXH B which sets out the dwelling types by reference to number of bedrooms. The typologies are not approved plans and merely demonstrate that dwellings may be erected on each of the lots within the nominated building envelopes and at a height that does not exceed the maximum height controls and complies with the Council's setback controls. The proof of concept when read with the Mills Oakley letter demonstrates that the site can accommodate development to a sewer loading of no more than 71 ET." (Applicant's written submissions in reply dated 22 November 2022)
Ms Reid notes that once the conditions are imposed on a consent, the Council and the Court must assume that future owners will comply with the law (Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [35]; TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150 at [112]).
In relation to the s 68 Application, Ms Reid asserts that the Court would accept Mr Lees' oral evidence that the proposal has been designed on the basis of the Council's approved drawings, his reliance on his observations of the services being installed, and a visual inspection of the land and the road. She argues that in light of those matters, the Court should be persuaded by his confidence that the design is appropriate, and that following a survey being completed when the ground is broken, and any discrepancy would be minor.
Further, she submits that it is evident from the evidence that whether the s 68 application is approved or not, there is capacity in the system for the connection of water and sewer, thereby cl 28 of SEPP Seniors is met. On the same reasoning Ms Reid submits that the precondition at cl 7.10 of LEP 2014 is met on the same basis.
Ms Reid concludes that on the evidence both applications should be approved.

The s 68 Application

The s 68 Application is an application to carry out water supply and sewer work. I am satisfied that the s 68 Application is capable of approval. In determining the application, I am satisfied on the evidence that the activity will comply with the relevant regulations. Further, I have given consideration to the following documents referred to by the experts: Development Design Specification D11 Water Supply; D12 Sewerage System, as well as the principles of ecological sustainability. None of these considerations given rise to a matter that would not support approval.
I adopt and prefer the evidence of Mr Lees that the as constructed drawings of the existing infrastructure, prepared by a surveyor, as the basis of the s 68 Application provides sufficient certainty. I am not persuaded by the evidence of Mr Darwin that there is an absence of survey information and thereby the application is uncertain or lacks clarity as to the final location of the proposed water and sewer works. That is because the Applicant has prepared their application based on the surveyed as-built drawings of the water and sewer infrastructure within the road reserves of the previous stages of Seabreeze Estate. On this basis, I accept that any discrepancy in the location and subsequent connection is minor and capable of being managed by Mr Lees' proposed condition at [89].
On the proceeding basis I proposed to make orders in Matter Number 2022/297766 to uphold the appeal and grant approval to s 68 Application number DA21/0967 to carry out water and sewer supply works at Lot 1747 DP 1215252 known as 1 Seabreeze Boulevard, Pottsville subject to the conditions in Annexure A.

Satisfaction of cl 28 of SEPP Seniors: the Concept DA

As the decision in Ballina v Palm Lakes at [52]-[54] emphasises, pursuant to cl 28 of SEPP Seniors the consent authority must be satisfied the development "will" be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage and that the satisfaction is based on written evidence.
It follows from my determination that the s 68 Application warrants approval that I am satisfied that the precondition at cl 28 of SEPP Seniors is met. Relevantly it is sufficient to satisfy the precondition to be satisfied that such water and sewer services will be provided in the future: Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297 in [47] and [48].
To ensure the timing of the works I propose that a condition of the Stage 1 development would require completion of the s 68 Application works prior to the issue of the subdivision certificate for the Stage 1.

Satisfaction of cl 7.10: Essential services in LEP 2014

In contrast, the precondition in cl 7.10 of LEP 2014 requires the consent to be satisfied that the services that are essential for the development are either available or that adequate arrangements have been made to make them available with required. (Emphasis added.) Applying the reasoning in Ballina v Palm Lakes at [52]-[54] that state of satisfaction applies at the time of the grant of consent. In the current proceedings the service in contention between the parties is the disposal and management of sewage.
Pursuant to cl 7.10 of LEP 2014, to enliven the power to grant consent to the Concept DA, I need to be positively satisfied that either:

services for the disposal and management of sewage are available; or
adequate arrangements have been made to make services for the disposal and management of sewage available to the development when required.

I am satisfied the civil engineering requirements for the augmentation and connection of water and sewer services, and the works to connect the proposed lots to these services, will be available to the development when required.
However, for the reasons that follow, I find I am unable to be satisfied that adequate arrangements have been made for the management of sewage Thereby failing to satisfy the precondition in cl 7.10 of LEP 2014. My reasoning is: 1. The breakup of ET by lot nominated in the Sewer Load table ,or the control of allocation of ET capacity to individual lots through dwelling types, does not form part of the Concept or Stage 1 DA. These elements are proposed as conditions of any consent. They do not form part of the 'development' for which consent is sought, and to which cl 7.10 of LEP 2014 is directed, but rather form a condition of such a determination. At s 4.16(1)(a) of the EPA Act, it is clear that the consent authority in determining an application by the grant of consent can do so either unconditionally or subject to conditions. The consideration and determination of a development application seeking consent to carry out development turns on the development the subject of the application. A condition of consent is imposed on that development. 2. Applying the reasoning of the Court in Michael Brown Planning Strategies v Wingecarribee Shire Council (No 2) [2019] NSWLEC 192 at [42], the use of the term 'is' in cl 7.10 is, in my view, a deliberate choice by the drafter of the provision and thereby requires the consent authority to reach the state of satisfaction at the time of determination. As such as these components are not part of the development for which consent is sought under the Concept DA or Stage 1 DA, and they do not comprise the development to which cl 7.10 applies. 3. Further, to the extent that the consent conditions are 'an adequate arrangement to make available the disposal and management of sewer' I am not satisfied they are adequate. The ET rates relied on by the Application firstly allocates 1.0ET per three-bedroom dwelling. However, that rate has been applied, with no increase, to the proposed four bedroom dwellings. Given the proximity of the estimated sewer load to the maximum allocation in the existing infrastructure, and the uncertainty of the difference in actual sewer load between a dwelling with three bedrooms or one with four bedrooms I am not persuaded that such an approach is representative of appropriate management. Further, the consent conditions which embrace the Sewer Load Table do not make an allowance for a margin of error or safety. In my view the lack of such an allowance in circumstances where the proposed development seeks to absorb the remaining known capacity of public infrastructure is is consistent with the precautionary principle. 4. It is clear on the evidence that the Concept DA for seniors development, when fully realised, will absorb the totality of the remaining capacity in the public sewer infrastructure in this locality. 5. Beyond facilitating connection to public infrastructure, neither the Concept DA or Stage 1 DA provides a means of ensuring that the proposed development does not exceed the remaining capacity of sewer services. In my view, in the absence of any such means of limiting development under the Concept DA to the known capacity of the sewer infrastructure does not satisfy the requirement for adequate arrangements to have been made for the disposal and management of sewage.
Putting the preceding reasoning aside, to the extent I can give weight to the proposed conditions in determining satisfaction of the precondition, I am not persuaded that those conditions assist in reaching the state of satisfaction under cl 7.10 of LEP 2014. My reasoning is: 1. That the adoption of bedrooms as a means of determining occupancy and sewer loading is an approach used at a strategic level by the Council to, for example, determine fees and charges, high level capacity or infrastructure upgrade requirements. I have not been persuaded that they are an appropriate means of determining that sewage will be adequately managed at the scale of a single subdivision. 2. Further, the Sewer Loading Table and the proposed restriction to user relied on by the Applicant fails to consider the potential for additional development to occur on the lots as exempt development which may generate additional sewer load, for example home businesses/occupations. 3. No allocation has been made in the Sewer Loading Table for any sewer demand generated by the community centre itself. 4. I accept the oral evidence of both experts that there is limited capacity remaining in the relevant regional sewer pump station without impacting on its wet weather performance, see [91]. 5. Given the limited margin between the proposed ET allocation for the subject site and the nominated maximum capacity, and the plainly detrimental potential impact of the capacity of the sewer infrastructure is exceeded, I accept and prefer the evidence of Mr Darwin at [96] that the means of management are uncertain. 6. I note Ms Irish's submission that the Proof of Concept Plans (Exhibit C) do not accord with the Sewer Loading Table relied on by the Applicant. Importantly this would create inconsistency between the Applicant's proposed conditions 11 and 126(h), as extracted at [x97].
On the preceding I find that cl 7.10 of LEP 2014 is not met and I am unable to be satisfied that the development application proposes adequate arrangements for the management of sewerage. As such, there is no power to grant consent to the Concept DA and it must be determined by way of refusal.
Further, if merit assessment pursuant to s 4.15 of the EPA Act was undertaken, I find that the development application is sufficiently uncertain that a likely impact of the Concept DA is that the use of the proposed subdivision for the purpose of seniors development would result in an exceedance of the sewer capacity of the existing infrastructure. This likely impact, in combination with the detrimental impacts detailed at [72-73] warrant the refusal of the development application.

Is the proposed flood response appropriate?

Clause 5.21 of LEP 2014 is extracted at [50]. Clause 5.21(2) establishes a condition precedent to the grant of consent by a consent authority. The condition precedent is the formation by the consent authority of a positive opinion of satisfaction of five matters. Firstly, that the development is compatible with the flood function and behaviour of the land. Secondly, that the development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties. Thirdly, that the proposed development 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. Fourthly, the development incorporates appropriate measures to manage risk to life in the event of a flood. Fifthly, 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.
Clause 7.4 of LEP 2014 is extracted at [51] and applies to the subject site. Subclause (3) of that provision states: (3) Development consent must not be granted to development for the following purposes on land to which this clause applies unless the consent authority is satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land - … (f) residential accommodation (except for dwelling houses, secondary dwellings or dual occupancies) on land in Zone RU5 Village, Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone R5 Large Lot Residential, …
Further, DCP 2008 contains the following relevant controls: 1. "Section A3 - Development of Flood Liable Land A3.2.6: Emergency Response Provisions … (b) Habitable Development New habitable development in all localities shall comply with the following development controls. Development controls for emergency response provisions take precedence over the locality specific clauses in Section A3 of the DCP. … … Note 1: Evacuation Versus Shelter in Place for Sensitive Development Evacuation of occupants is the preferred risk management approach for sensitive developments proposed below PMF level. Adoption of evacuation as the risk management response for a development requires a Flood Response Assessment Plan that specifically addresses the following evacuation requirements: • Typical demographics of evacuees (age, gender, etc.) • Typical medical conditions and/or disabilities of evacuees (dialysis, dementia, paralysis etc.) • Mode of transportation (private bus, ambulance etc.) • Intended evacuation destination • Level of service provided by evacuation centre (medical, security, accommodation etc.) • Required staffing for evacuation centre to cater for evacuees • Special supply measures for evacuation centre to cater for evacuees (food, water, waste, medicines etc.) If the above requirements are not able to be satisfied for all future occupants of the development, a PMF refuge shall be provided in accordance with design criteria in Note 2. Note 2 - PMF Refuge for Sensitive Development The PMF refuge must meet the following minimum requirements: • Refuge must be above the PMF level. PMF levels can be determined from Flood Maps in Appendix C. • Minimum floor level to be PMF level. No freeboard required. • For new facilities, minimum floor area of refuge to be no less than 50% of the total floor area located below the PMF, or an equivalent area that would comfortably accommodate and service the needs of the occupants for a period not less than one week. For extensions to new facilities, minimum floor area of refuge to be no less than 50% of the incremental increase in total floor area located below the PMF due to the extension. • Refuge must comply with Building Code Australia requirements, with external components rated appropriately for storm, wind and moisture. • Permanent internal access via permanent staircase, minimum 1.2m wide. • External access to the refuge must also be provided. Access must remain unobstructed for emergency boat access during flooding (i.e. clear of trees, services). • Refuge must have natural lighting and ventilation. • Support structures below PMF level must be capable of withstanding flood forces (water flow, debris impact, and buoyancy) and continuous submergence for up to one week, requiring an engineering certification. • Refuge must meet all planning and building controls applicable to the site. • All services provided as part of normal operations are to be continued undiminished during all flood events. This includes food, water, shelter, power via back-up generators, medical services and hygiene of residents and facilities. All excess sewage, food and medical waste is to be collected and stored until such time as normal disposal can be undertaken. Facility management must make provision for staff to be rostered on and accommodated for the flood period. All such measures must be detailed in the development's Flood Response Assessment Plan. …"
The development application includes a PFRAP which is only nominated as a document proposed for approval under the first stage of the development, not as a document proposed for approval under the Concept DA (Exhibit 10).
The PFRAP notes the following:

All of the proposed seniors housing lots will be filled to the PMF level of RL 4.5m, with the exception of the following lots: (Exhibit 10)
That the subdivision proposed includes a restriction on the use of the lots requires the finished floor level to be not less than the PMF level. The restriction, registered against the title of each property in accordance with Section 88E of the Conveyancing Act 1919, is for the benefit of Tweed Shire Council and can only be revoked, varied or modified with the approval of Council.
That Seabreeze Boulevard will be inundated at approximately the 20-Year average recurrent interval (ARI) event.
a permanent high level road evacuation route between the site and the nearest evacuation centre (Pottsville Beach Public School) is not available as the existing road network is in parts below the relevant flood levels.
There are no stream gauges in place that upon which a decision to evacuate could be made, requiring the use of alternate strategies that will result in additional and unnecessary evacuations.
That evacuation from the Site (and future individual dwellings) is not proposed and that the development focusses on people staying within the development to minimise the risk associated with flooding external to the site.
That considering the 100-year ARI event for the storm duration that produces peak levels (the 36 hour duration event), longer storm durations and natural variability, a period of 24 hours should be adopted for consideration of shelter in place.
The development includes a community building with disabled access set above the level of the PMF (note this building is not proposed as part of the Concept DA or Stage 1). Although the floor levels of dwellings will be at or above the PMF level (allowing people to remain in their homes), the community building offers a location for people to congregate during a major flood event and for the storage of items of assistance during flood events (torches, spare batteries, etc).
That as part of the subdivision design an internal pedestrian movement network should be included to provide access to the community centre in rare or extreme events. (Exhibit 10)

The characteristics of the PFRAP are summarised in the following plan:
The internal pedestrian movement network is described in the PFRAP as follows (emphasis original): "Lots 2-14 Lots 2 to 14 are located to the east of the drainage reserve and need to access the community building via Seabreeze Boulevard. As the immunity of the road is of the order of the 20-year ARI event, it will not be possible for people residing in the lots to access the community building while flood levels are elevated during major events such as the 100 year ARI or extreme events such as the PMF event. It will be necessary for the Chief Flood Warden/ Deputy Flood Wardens to arrange for any supplies stored in the community building required by the residents of lots 2 to 14 to be supplied prior to Seabreeze Boulevard being inundated and to stay in contact with residents while they shelter in place until access to the community building is restored. Lots 15-91 The current design for the internal road network for Lots 15 to 91 allows internal road access to the community building that is at or above the level of the 1% AEP event. This will result in the ability for residents to travel between their lots and the community building for major flood events. For more extreme events, the current design allows ponding to occur within the road network. In the vicinity of the community building, the maximum depth of ponding for the PMF event is in excess of 750 mm. Although the extreme nature of the PMF event is noted, due to the nature of the development it is considered desirable to limit the depth of water through which people would move to access the community building (noting that residents are expected to shelter in place and the purpose of accessing the community building is to obtain supplies and share information) to 300 mm. To achieve this, the community scheme will include an internal pedestrian movement network that provides for movement (including gates on fences) along areas of ground where the depth of inundation is 300 mm or less. Given the low frequency of use, it is not intended to provide a formal path, simply a means to travel along an area of higher ground (noting that no stairs or other sudden changes in level would be allowed along the route). It is noted that the pedestrian network would only be used should an event well in excess of the 100 year ARI event occur and is only required for a relatively short period of time. For floods up to and including the 100 year event or in the period prior to or following the peak of an extreme event, the internal road system can be used to access the community building. The Chief Flood Warden/ Deputy Flood Wardens will be responsible for ensuring that the network is available in the event of an extreme flood occurring. With reference to Figure 2.7, the use of the pedestrian network would be as follows: - Lots 15-30: Residents move via the network to the community building (although Lot 15 can access the community building directly and does not require the network); - Lots 31-76 and 90-91: Residents move via road/verge areas at or above 4.2 mAHD to Point A and then travel to Point C, crossing the road (a minimum road level of 4.5 mAHD is recommended at this location and moving along the access driveway to Point D and then via the network to the community building; - Lots 77-80: Residents move via the network to the central internal road and then Point A, thereafter following the route for Lots 31-76 and 90-91; - Lots 81-85: Residents can move via the road verge to Point C and then along the access driveway to Point D and then via the network to the community building; - Lots 86-89: Residents can move via the network to Point B, and thereafter follow the route for Lots 31-76 and 90-91." (Exhibit 10)

That Section A3 of DCP 2008 is applicable to the proposal (defined in their report as 'proposed community title seniors living development').
That DCP 2008 requires a "high level evacuation route" which means a road or footway (as applicable based on the development type), whose entire length has a level (measured at top of kerb for roads) of not less than the design flood level and, which provides a route to enable people to evacuate to land above the PMF.
That such a "high level evacuation route" is not available to the site.
That in accordance with A 3.2.6 of DCP 2018 the development is firstly, classified as a habitable residential subdivision (see par [124]) and requires a high-level road evacuation route or an adequate PMF refuge. Secondly for sensitive development, as defined by DCP 2008, the development requires a high-level road evacuation route and/or an adequate PMF refuge.
That without undertaking significant off-site construction works it is not possible to comply with the controls in DCP 2008, therefore on-site PMF refuge is the only viable solution for flood risk management. (Exhibit 10)

In relation to the role of the community centre proposed adjacent to Lot 15, the experts agree that during a flood emergency where residents become isolated the community centre would provide further PMF refuge in addition to the refuge provided in the individual residences. The joint report in effect then repeats the provisions of the PFRAP that are extracted at [127] and concludes that if the development was approved a finalised plan would need to be prepared to include at least the following: evacuation signage, stocking of the community centre to provide for periods of potential isolation, and responsibilities of the community association in respect of flood mitigation. (Exhibit 10)
The experts' agreed conclusion is that the flood risks of the Site can be adequately managed on the basis that:

The application is for a community title development which will include a community association responsible for co-ordinating the management of flood risks.
All floor levels are set at or above the PMF.
The provision of a community building to provide for flood emergency support.
The inclusion of a pedestrian movement network within the western part of the site to be activated in the event of a flood in excess of the 100-year ARI event occurring.
The implementation of a detailed Flood Risk Assessment Plan for the life of the development. (Exhibit 10)

The relevant conditions of development consent proposed by the Respondent, on a without prejudice basis, are as follows: "DEFERRED COMMENCEMENT" This consent shall not operate until the applicant satisfies the consent authority by producing satisfactory evidence relating to the matters set out in Schedule "A". Such evidence is to be provided within five (5) years of the date of notification. Upon the consent authority being satisfied as to compliance with the matters set out in Schedule "A". The consent shall become operative and take effect from the date of notification under Section 76 of the Environmental Planning and Assessment Regulation subject to the conditions set out in Schedule "B". SCHEDULE "A" Conditions imposed pursuant to Section 4.16(3) of the Environmental Planning and Assessment Act, 1979 and Section 76 of the Regulations 1. A detailed Flood Risk Assessment Plan (FRAP) is to be submitted to Council General Manager or Delegate for approval. The FRAP shall be prepared generally in accordance with the preliminary FRAP provided by BMT dated 3 November 2022, and must at a minimum provide the following: (a) Responsibilities for the Community Association, the chief flood warden and deputy wardens. (b) Training and education materials and requirements for flood wardens and the community. (c) A process for maintaining an up to date contact list of names and numbers for all persons within the development. (d) The specification and location of flood risk signage. (e) All residential floor levels to be at or above the PMF level. (f) Emergency pedestrian access to the community building above the PMF level for lots 15-91. (g) For the community building in Associated Lot 1: (i) Finished floor level to be at or above the PMF + 0.1 m. (ii) Provide backup power to ensure continuous operation during a flood emergency. (iii) Provide a rainwater tank with a capacity of 2 days community supply and suitable pump system, if water supply is temporarily lost. The water supply system shall be plumbed so that emergency water supply can be readily used if needed. (iv) Provide a sewage holding tank with a storage capacity of 2 days and suitable pump system if sewerage services are temporarily lost. The tank system shall be designed and operated to only store sewage if sewer services are temporarily lost. (v) Suitable waste storage facilities that that waste can be stored until such time as normal disposal can be undertaken. (vi) Provide at all times a store of emergency food rations in the event of any shortages during a flood emergency. (vii) Provide at all times a store of operable torches, a megaphone, spare batteries, first aid kits, medication for residents, a defibrillator and any other necessary items specified in the FRAP. 2. In accordance with the final approved FRAP pursuant to Condition 1 of the deferred matter, a plan detail including long-sections of the access footpath for emergency evacuation over private lots to access proposed Community Association Lot 1 Community building shall be provided. The detail shall demonstrate the design of access pathways can achieve compliance with AS1428.2009 and are to be at a level of the PMF (4.5m AHD) or higher. The plan shall also include: a) The location of all gates and their ability to comply with AS1428.2009 and; b) The provision of additional access paths as required by any final approved FRAP and/or adjustment of the levels of the internal road network as part of details design to achieve the nominated level." (Exhibit 21)

Submissions

Ms Irish, for the Respondent submits that in applying A3.2.6 Emergency Response provisions of DCP 2008, the Concept DA should be characterised as residential subdivision, meaning DCP 2008 requires a high-level road evacuation route (as defined by DCP 2008). She notes that for this land use the DCP 2008 provides no alternative such as a PMF refuge.
Further, Ms Irish submits that in considering the PFRAP the Court should be mindful of the context of the development as one in which the use and occupation is directed to seniors and people with a disability. She submits that reduced mobility or disability may affect the ability future residents of Lots 15-91 to safely utilise the internal pedestrian movement network where the PFRAP indicates areas of water inundation to 300mm or less will occur along the network of paths/roads to the community centre. Further, Ms Irish notes that the PFRAP relies on a future solution to bridge, or cross over, the overland flow path to facilitate movement between Lot 16 and Lot 17. Given the complexity and shortcomings of the PFRAP, Ms Irish submits it is inappropriate as an alternative solution to the relevant development controls for emergency response detailed at A3.2.6 of DCP 2008 and that the Court should not utilise the flexibility at s 4.15(3A)(b) of the EPA Act to vary the standard.
Ms Irish urges the Court to refuse the Concept DA on the basis that the Site is unsuitable for the development given its flooding characteristics. She argues that: "The experts not that the likely maximum time of isolation during a PMF will be somewhere between 12-24 hours. Whether in the community building, to be accessed via the legal and physical complexities of the internal pedestrian network, or using and occupying their lots as a PMF refuge, there is no security that seniors or others will not try to leave, or that third parties will not try and reach or fetch them due to anxiety for them during the flood risk event." (Respondents written submissions dated 16 December 2022)
Further, Ms Irish refers the Court to the decision of Walsh C in Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526, and in particular the Court's deliberations on the appropriateness of the Flood Evacuation Risk Plan and the application of the Court's planning principle outlined in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54]. In relation to the current proceedings, Ms Irish identifies the following concerns with the appropriateness of the PFRAP: 1. The internal pedestrian path needs to be secured both legally and physically, neither are certain. First, the pedestrian movement network includes gates in fences, neither the path nor the gates in the fences are proposed in the development application. Secondly, there is no detailed design of the internal pedestrian movement network. 2. Even if it is assumed that people the subject of the PFRAP are aware of its requirements, it would be available to the Court to form the view that the absolute compliance with the plan is required to achieve an acceptable outcome. Further, that the PFRAP requires people to act in a manner that would be unlikely or unreasonable in the circumstances. 3. That it would be very difficult for the Council to monitor compliance with the PFRAP and or to undertake any meaningful enforcement action.
Finally, Ms Irish emphasises two elements of Dr Marten's evidence. Firstly, that his agreement to the approach to flood management in the PFRAP was contingent on the following elements detailed in the joint report: "In respect of this plan [the PFRAP] the experts agree: - A high level evacuation route is not available as the existing road network is of variable immunity. - The development provides all floor levels above the level of the PMF together with a community facility above the PMF level +0.1 m. - A shelter in place strategy is the most appropriate flood management strategy for the site. - The adoption of a shelter in place strategy operated in accordance with a FRAP will provide acceptable flood risk management for the site. - Any approval for the site should require a condition for the preparation of a detailed FRAP, to be reviewed by the Council, generally in accordance with the preliminary FRAP provided at Annexure B [the PFRAP], and a condition requiring the Proposal to be operated in accordance with the final approved FRAP. The experts agree that flood risks at the site can be adequately managed on the basis of: - The Proposal being a community title development which will include a community association responsible for co-ordinating the management of flood risks. - Setting all floor levels at or above the PMF. - The provision of a community building to provide for flood emergency support. - The inclusion of a pedestrian movement network within the western part of the site to be activated in the event of a flood in excess of the 100-year ARI event occurring. - The implementation of a detailed FRAP for the life of the development." (Exhibit 10)
Secondly, that in his oral evidence when asked to express a preference between residents utilising the internal pedestrian movement network or sheltering in place, Dr Martens emphasised the importance of the community centre stating: "… that one of the benefits [he] saw in the development was that there was a community building and… that it would provide an opportunity for residents to congregate, share information and discuss the flood emergency." (Tcpt, 10 November 2022, p 38)
In the context of the expert's reliance on the community centre in a flood emergency, Ms Irish notes that the evidence of the planning experts is that it would have a capacity of some 50-60 people noting the evidence of Mr Mead that an allowance of 2m²/ person is very tight. I note that the subdivision proposes 90 lots, with one lot (Lot 53) earmarked for multi dwelling housing comprising 8 one-bedroom homes. The PFRAP identifies the occupancy of the site as some 220 residents. (Exhibit 10)
In the alternative, Ms Reid submits that the Court should give weight to the following in forming the view that the preconditions at cll 5.21 and 7.4 of LEP 2014 are satisfied:

The experts agree that only a small portion of the Site is currently above the PMF levels.
The proposed development includes earthworks will raise the Site levels and increase the portion of the Site above the PMF.
When completed all residential lots will be above the PMF, all dwelling floor levels will be above the PMF, and the community centre will be +100mm above the PMF.
Shelter in place in individual dwellings will apply for the PMF event duration of 12-24 hours (or lesser duration for smaller events). A flood free access to the dwellings will be possible in the event that residents require emergency assistance. I note however this access is only via the proposed internal pedestrian network as the local road network external to the Site is in part flooded and the proposed internal road network is also subject to a depth of flooding in sections as noted by the flooding experts.
The community centre will provide a further PMF refuge. However, she submits that residents will be advised through continuous education that sheltering in their homes was the safest option. Further, they will be advised to not evacuate unless advised by emergency personnel.
Egress to the community centre via the internal pedestrian path will be enshrined in restrictions on title. The primary purpose of the internal pedestrian path would be for provision of supplies from the community centre. (Applicant's written submissions, dated 20 December 2022)

Ms Reid argues that the Concept DA details a sensible approach of sheltering in place in a very rare flood of limited duration. Further, the Applicant's proposed conditions of consent will ensure that residents are aware that the safest place in a flood is to stay withing their homes until flood waters recede.
Ms Reid submits that the Court would be satisfied that the Concept DA meets the requirements of cll 5.21 and 7.4 of LEP 2014.

Findings

The Concept DA seeks consent for use of the whole of the site for the purpose of a seniors housing development pursuant to SEPP Seniors. Further, the Concept DA seeks consent for Stage 1 which includes those works listed at [2].
LEP 2014 Dictionary contains the following definition of residential accommodation: residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following - … (l) seniors housing, … but does not include tourist and visitor accommodation or caravan parks.
Relevantly subcl (3) of cl 7.4 of LEP 2014 states: (3) Development consent must not be granted to development for the following purposes on land to which this clause applies unless the consent authority is satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land - … (f) residential accommodation (except for dwelling houses, secondary dwellings or dual occupancies) on land in Zone RU5 Village, Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone R5 Large Lot Residential, …
The Statement of Environmental Effects identifies that the proposed development falls within subcl (3)(f) of cl 7.4. The SEE also identifies, by reference to Tweed Shire Council flood mapping that the road network proximate to the Site is subject to flooding in a flood exceeding the flood planning level as defined by cl 7.4. The PFRAP includes the following statement: "Some inundation of the flood evacuation route via the existing road network between the site and flood evacuation centres can occurring the 100-ARI and greater events. As a consequence, people evacuating from the site may become stranded on route." (Exhibit 10)
The submissions of both parties accept that the provisions of cl 7.4 of LEP 2014 apply to the Concept DA. As noted at [27] the satisfaction of any precondition to consent is directed to the development for which consent is sought in the Concept DA (to authorise the use of the site for the purpose of housing for seniors and persons with a disability) and the Stage 1 works. I am satisfied that the Concept DA seeks consent for the subdivision and use of the site as seniors housing.
For the following reasoning I find that subcl (3) of 7.4 of LEP 2014 is not satisfied.
Firstly, the SEE and the PFRAP establish that evacuation from the subject site in a flood exceeding the flood planning level (the level of a 1:100 ARI flood event plus 0.5m freeboard) is not achievable on the basis of the existing road levels. The same conclusion is supported by a review of the 1% Annual Exceedance Probability mapping of the site which show depths of inundation between 0.5-3m in the roads adjacent to the subject site in Exhibit 24. Further, the PFRAP identifies that there is a risk of people evacuating from the site in time of flood being stranded.
The PFRAP further acknowledges that there is limited flood warning infrastructure in the local area meaning that there is 'no minor/moderate/major flood guidance on flood heights that would inform a timely decision to evacuate'. In other words, there is no early warning infrastructure that would form the basis of advice to future residents to evacuate early ahead of flood waters reaching a level that would make the roads impassable. (Exhibit 10)
On the basis of [154] and [155] above, I cannot be satisfied that the development will not affect evacuation of the future seniors housing use of the land.
Secondly, I acknowledge the Concept DA is framed on the basis of future residents sheltering in place to achieve safe occupation of the site. However, I am not persuaded on the evidence that this is an appropriate response to satisfy cl 7.4(3) of LEP 2014. My reasoning is as follows: 1. It is the agreed evidence of the flooding experts that the PFRAP is deficient in at least the respects they identify in their report. Namely it requires details on the arrangements for flood risk mitigation including evacuation route signage, stocking of the community centre to provide for periods of isolation, and responsibilities of the Community Association in respect of flood mitigation. I accept this evidence of the experts. Further, the conditions of the respective parties both foreshadow amendments to the scope and form of the PFRAP, as detailed at [133] and [134]. In my view the proposed conditions seek to address matters which are fundamental to the question of satisfaction at sub cl (3) of 7.4, namely the safe occupation of the land. These matters should be certain at the time of determination of the Concept DA, not deferred to a later time. For example, the PFRAP relies on the internal pedestrian network to either allow residents to access the proposed community centre or for provisions to be delivered to them if they shelter in place. In my view it is not appropriate for the confirmation of the design levels, finish and arrangements for access between private lots along this path to be deferred to post determination. Firstly, because they are an essential matter: Mison v Randwick Municipal Council (1991) 23 NSWLR 734. Secondly, because the outcomes resulting from the satisfaction of the condition are uncertain. 2. The state of satisfaction under s 7.4 is directed to 'the development', the PFRAP does not form part of the 'development' for which consent is sought under the Concept DA but is rather a document for which consent is sought only for the Stage 1 DA. Therefore, in the absence of the PFRAP, the Concept DA provides no guidance or detail as to how the development will affect the safe occupation of the land. 3. In relation to Stage 1, the PFRAP is acknowledged to be deficient. At s 4.16(1)(a) of the EPA Act, it is clear that the consent authority in determining an application by the grant of consent can do so either unconditionally or subject to conditions. In this case, the deficiencies in the PFRAP are proposed to be addressed by condition. However, the consideration and determination of a development application seeking consent to carry out development turns on the development the subject of the application. A condition of consent, whether a deferred commencement consent or not, is imposed on that development. 4. Further, the PFRAP is inconsistent in defining the role of the Community Centre and the internal pedestrian path. In one section of the document, it asserts that the pathway will be utilised by residents to access the Community Centre in times of flood, in contrast to other parts of the document which emphasis that residents should remain in their dwellings with the internal pedestrian path utilised by the warden to deliver supplies to future dwellings. 5. To the extent the PFRAP proposes the utilisation of the internal pedestrian path to access the Community Centre, it thereby encourages residents to move outside during a flood event. In circumstances where flood warning systems are acknowledged to be lacking, I am satisfied that such a proposal is contrary to satisfying the requirement of safe occupation of the land. 6. The internal movement path is uncertain. The means of finishing or the level of such a path, the provision of access gates, security, or the depth of water to be traversed along its length are all unclear. Further, I accept the submissions of Ms Irish that to the extent the PFRAP relies on the internal movement path to achieve safe occupation of the site it is inappropriate to defer the means of traversing lots 16 and 17 to achieve access to the Community Centre to post determination. 7. If the Community Centre is proposed as a PMF refuge, I accept the evidence of Mr Mead that it is inadequate in size. Further, the community centre is not proposed to form part of Stage 1 of the development.
On the preceding basis I find that the precondition at cl 7.4(3) of LEP 2014 is not met and I am unable to be satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land. As such, there is no power to grant consent to the Concept DA and it must be determined by way of refusal.
Further, I am not persuaded, on merit, that I should exercise the flexibility available at s 4.15(3A) of the EPA Act to vary the provisions of Section A3.26: Emergency Response in DCP 2008 which requires new subdivisions to have high level road evacuation routes in circumstances where the preceding deficiencies in the PFRAP exist. In my view where evacuation is not provided a risk management approach of shelter in place must be clear, unambiguous, practical and require residents to act in a manner that is reasonable in the circumstances. The PFRAP fails in these regards. This finding, in combination with the detrimental impacts detailed at [72-73] and [121] warrant the refusal of the Concept DA.

Conclusion on the Concept DA

I note that both the public submissions and the evidence in the proceedings canvassed a number of additional issues and matters, particularly in relation to the nomination of the proposed site as a 'potential school site' in DCP 2008 and the weight that the Court should give those provisions in assessing the merit of the application. However, consistent with the obligation at s 56 of the Civil Procedure Act 2005, namely, to facilitate the just, cheap and quick resolution of the real issues in the proceedings, I have not made findings in relation to these matters as the failure to meet the precondition detailed in the preceding results in the Court having no power to determine the Concept DA by the grant of consent. The Concept DA must be refused.
Further, as identified at [158], if the matter was assessed under s 4.15 of the EPA Act the detrimental likely impacts of the development and the provisions of Section A3.26: Emergency Response in DCP 2008 are sufficient in my assessment to warrant the refusal of the development application on merit.
As a result of these findings, the outcome of the proceedings is that the appeal is dismissed, and the development application is refused.

S 68 Application

As noted at [109] and [110] I am satisfied that the s 68 Application to carry out water supply and sewer work is capable of approval. I have made orders at [163] to this effect.

Orders

The Court orders that: Matter Number 2022/055836 1. The appeal is dismissed. 2. Development Application number DA21/0967 for concept approval for the whole of the site for a seniors housing development pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 as well as consent to carry out stage one works comprising subdivision to create the proposed seniors housing lots and subdivision works at 1 Seabreeze Boulevard, Pottsville (Lot 1747 DP 1215252) is determined by way of refusal. 3. The exhibits are returned with the exception of Exhibits A, J, 2. Matter Number 2022/297766 (1) The appeal is upheld. (2) Approval is granted for s 68 Application number DA21/0967 to carry out water and sewer supply works at Lot 1747 DP 1215252 known as Seabreeze Boulevard, Pottsville subject to the conditions in Annexure A.

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: 31 March 2023

020] NSWLEC 1107 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150 Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 1129 Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526 Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection Tweed Development Control Plan 2008 Category: Principal judgment Parties: Newland Developers Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: J Reid (Applicant) H Irish (Respondent)

(2006) 146 LGERA 271

(2006) 144 LGERA 408

(2016) 222 LGERA 212

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Judgment (18 paragraphs)

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Cases Cited (18)