OM Vinayak Pty Ltd v Central Coast Council

Land and Environment Court (NSW)|2022-04-07

L Nurpuri (Applicant) S Simington, (Solicitor) (Respondent)

Solicitors: Sparke Helmore Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/358368 Publication restriction: No

Judgment

COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA/621/2020) by the Central Coast Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks development consent for demolition of existing structures, construction of a dual occupancy (attached) and subdivision. The development is proposed at 37 Bondi Road, The Entrance North (Lot 151 DP 18958).

Issues

Despite the amendments and provision of additional information, the parties were unable to reach agreement in the conciliation phase of the proceedings as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).
The Respondent maintains that the development application should be refused by the Court on the following grounds: 1. The proposed development fails to minimise the flood risk to life and is not compatible with the flood hazard of the land. 2. The proposed development is not in the public interest for two reasons: firstly, it will establish a precedent for increased density within the Tuggerah Lakes Floodplain; secondly, the development will increase risk to life, damage to property and reliance on emergency services during a flood event.

Site and Locality

The subject site is 37 Bondi Road, The Entrance North and is legally described as Lot 51 DP 18958. Bondi Road extends from Wilfred Barret Drive to the dunes of the North Entrance beach. The Entrance North is a peninsula with frontage to Tuggerah Lakes to the west and North Entrance Beach to the northeast. The locality is depicted in the extract of the aerial photo below: Source: https://maps.six.nsw.gov.au/
Currently the subject site contains a two-storey dwelling, which by reference to historic aerial photography, was built in the late 1970's. The site has a northern orientation with minimal existing vegetation.

Public Submissions

The development application was notified in accordance with Wyong Development Control Plan 2013 (DCP 2013). No submissions were received.

Experts

The Court was assisted by flood engineering experts, Mr Steve Wyllie for the Applicant and Mr Andrew Dewar for the Respondent. These experts joint conferenced and prepared joint reports, tendered as exhibit 4 and 6 in the proceedings. The experts were also called for cross examination.
The Court was assisted by town planning experts, Mr Wesley Wilson for the Applicant and Ms Rebecca Samways for the Respondent. The joint report of these experts was tendered as Exhibit 3 in the proceedings.
The outcome of the planning joint conference was an agreement on the following issues that were previously in contention. This agreement was reached on amendments to the architectural plans, now in Exhibit B, or agreed conditions of consent. The contentions now resolved are as follows:

"That development consent should be refused because the precondition at cl 7.1: Acid Sulfate Soils in Wyong Local Environmental Plan 2013 (LEP 2013) was not satisfied". The experts agree that the Acid Sulfate Soil Assessment prepared by Hunter Civilab meets the requirements of cl 7.1 of LEP 2013. I accept the agreement of the experts, the precondition at cl 7.1 of LEP 2013 is satisfied.
"That the development proposed provided inadequate landscaping". The experts agree that this contention is resolved by the preparation of a landscape plan by the Applicant. Compliance with the landscape plan forms part of the annexed conditions of consent.
"That the proposed development should be refused as the dual occupancy proposed is incompatible with the scale and character of the local area". The Applicant submits this contention is resolved by the amended architectural plans and the imposition of the following condition of consent: "2.4 The Applicant must submit amendments to the approved plans to the Accredited Certifier pursuant to clause 139 of the Environmental Planning Regulation 2000 that detail the following changes. (a) Drop the sill height of the 1.2 wide (Bedroom 3) side windows of both Unit 1 and 2 to 1.2m above floor level to create a larger opening. (b) The highlight window of the lounge on the ground floor of both Units 1 and 2 is to be increased in size to create a full height opening with a width of 2.4m. (c) The indented section on each side elevation of the building is to be rendered blue board on the First Floor and rendered brickwork on the Ground Floor, in a visually recessive colour generally consistent with the approved Schedule of Finishes." (Exhibit H)
On the basis of the Applicant's proposed condition the Respondent no longer presses that the bulk and scale of the development is incompatible with the character of the locality, or that the development warrants refusal on these grounds. (Exhibit 1)

Preconditions to consent

Prior to considering the contentions raised by the Respondent in support of the refusal of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows.
The development application was lodged by the owner of the land: cl 23(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
The development application includes a valid BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
State Environmental Planning Policy (Resources and Energy) 2021 (SEPP RH) came into force on 1 March 2022. In considering whether the site is contaminated, as required by cl 4.6 of SEPP RH, I have had reference to the supplementary statement of environmental effects prepared by the Applicant. That document details that an assessment of historical aerial photography back to 1965 indicates that the site remained undeveloped until 1980 at the which time the aerial photography indicates a dwelling was located on the site. (Exhibit A) That dwelling remains present today. I accept that given these facts, and the existing use of the site is for residential purposes, there is negligible risk of contamination and that the site is suitable for the development proposed.
The land is within the Coastal Environmental Area and Coastal Use Area maps made pursuant to SEPP RH. In determining the development application, I have given consideration to the matters for consideration at cl 2.10 of SEPP RH. Further, pursuant to cl 2.10(2) of SEPP RH I am satisfied on the evidence that the development is designed, sited and will be managed to avoid an adverse impact on the following matters listed at cl 2.10(1) of SEPP RH: 2.10 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following - (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms. (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability. (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone.
Further, in determining the development application I have also given consideration to the matters for consideration at cl 2.11 of SEPP RH. Further, pursuant to cl 2.11(1)(b) of SEPP RH I am satisfied on the evidence, that the development is designed, sited and will be managed to avoid and adverse impact on the following matters listed at s 2.11(1)(a) of SEPP RH: 2.11 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority - (a) has considered whether the proposed development is likely to cause and adverse impact on the following - (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public spaces to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and …
Section 2.12 of SEPP RH states that development consent cannot be granted unless the consent authority is satisfied that the proposal is not likely to cause an increased risk of coastal hazards on that land or other land. The Wyong Development Control Plan 2013 (DCP 2013) at chapter 3.5 provides mapped coastal hazard planning lines. The subject site is outside any coastal hazard zone. I am satisfied that s 2.12 of SEPP RH is satisfied.
Pursuant to s 2.13 of SEPP RH the relevant certified coastal management coastal management programs are the Tuggerah Lakes Estuary Management Plan and the Wyong Coastal Zone Management Plan 2011. (Exhibit 1) In determining the development application I have given consideration to these documents to the extent relevant to the proposed development.
Wyong Local Environmental Plan 2013 (LEP 2013) applies to the subject site. Pursuant to LEP 2013 the site is zone R1 General Residential. Dual occupancies and semi-detached dwellings are permitted with consent in the zone. In determining the development application, I have given consideration to the following zone objectives: - To provide for the housing needs of the community. - To provide for a variety of housing types and densities. - To enable other land uses that provide facilities or services to meet the day to day needs of residents. - To promote 'walkable' neighbourhoods. - To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.
In relation to the principal development standards in LEP 2013:

The development application seeks consent for subdivision: cl 2.6;
There is no minimum lot size applicable to the site: cl 4.1;
Pursuant to cl 4.3: Height of Buildings, the maximum height is 9.5m. The development application complies with the standard;
Pursuant to cl 4.4: Floor Space Ratio (FSR), the FSR standard for the site is 0.5:1. The planning experts agree that the proposal complies with the standard;
The development applications satisfaction of cl 7.1: Acid Sulfate Soils is detailed at [12]. The precondition is satisfied.
As required by cl 7.9: Essential Services of LEP 2013, I am satisfied that the essential services for the development: water, electricity, sewerage, stormwater and vehicular access; are available.

What is the applicable flood planning control in LEP 2013?

When the development application was lodged with Council on 7 July 2020, cl 7.2 of LEP 2013 applied as follows: 7.2 Flood Planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of the land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. …
On 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 (the Flood Planning SEPP) commenced. Under the provisions of sch 1 of the Flood Planning SEPP, cl 7.2 Flood Planning in LEP 2013 was repealed.
Also, on 14 July 2021 the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Order 2021) commenced. Order 2021 inserted a new clause into LEP 2013, cl 5.21: Flood Planning. This provision states: 5.21 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood. (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development - (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters - (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. (4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause. (5) In this clause - Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021. flood planning area has the same meaning as it has in the Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
The parties disagree as to which or any of these provisions apply to the development application.
The Applicant argues that the development application is saved from consideration of cl 5.21 of LEP 2013 by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument Order). Clause 8 states: 8 Application of amending orders (1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order. (2) (Repealed) (3) In this clause - amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order.
Ms Nurpuri argues: "Order 2021 or any other local legal instrument, does not require the consideration of the now repealed cl 7.2 of WLEP [LEP 2013], because it was not identified in Order 2021. Clause 1.8A of the WLEP does not 'save' cl 7.2 for the consideration of the DA (see Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 per McColl JA, Basten JA and Pain JA)." (Applicant written submissions 7 April 2022)
Ms Nupuri notes that this submission was accepted by the Court in IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 ('IDA v CC Council') at [28]-[32]; Gardiner v Central Coast Council [2022] NSWLEC 1007 ('Gardiner v CC Council 2022'); and Leda Holdings Pty Ltd v Northern Beaches Council [2022] NSWLEC 1179 ('Leda v Northern Beaches').
In my assessment to this point the Respondent agrees with the submissions of Ms Nupuri. However, Mr Simington argues none of the cited decisions of the Court considered the effect of s 3.20(4) of the EPA Act which states: 3.20 Standardisation of environmental planning instruments … (4) If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) or by an Act after they are adopted, the environmental planning instrument is taken (without further amendment) to adopt the amended provisions of the standard instrument on and from the date the amendment to the standard instrument takes effect. (5) The order that amends a standard instrument may make provision of a savings or transitional nature consequent on the amendment of the standard instrument. …
Mr Simington argues that the effect of subss 3.20(4) and (5) is that when Order 2021 commenced on 14 July 2021, LEP 2013 was taken to adopt cl 5.21. Further, he argues:

The Order 2021 contained no savings or transitional provisions, as contemplated by s 3.20(5) EPA Act.
That applying cl 8 of the Standard Instrument Order is contrary to s 3.20(4) of the EPA Act.
Further, applying cl 8 would leave s 3.20(5) of the EPA Act 'no work to do'. (Respondent's written submission 7 April 2022)

In conclusion the Respondent argues that from 14 July 2021, cl 5.21 was incorporated into LEP 2013 and the Court must be satisfied of the matters at subcl (2) as a precondition to consent.
In the alternative, Ms Nurpuri submits that s 3.20 of the EPA Act: '"does not have the effect of overriding cl 8 of the Standard Instrument Order. Properly read and understood s3.20, and in particular sub clause (4) simply gives legislative effect to Order 2021, not how it is to be applied in relation to an existing development application. So much is made clear from sub clause (5) which refers to a savings and transitional provisions with respect to the amendment. It is cl 8 Standard Instrument Order that deals with its application to existing development applications. That position is only strengthened when one reads cll 9 and 10 of the Standard Instrument Order. If it was the intention of Parliament to limit the operation of cl 8, and express provision of the kind in cl 9 and 10 would have been inserted." (Applicant's written submission, 7 April 2022)
Ms Nurpuri concludes that on the preceding basis that there are flood planning controls in LEP 2013 that apply to the development application. Her reasoning is that firstly, in the absence of a savings provision in the Flood Planning SEPP, cl 7.2 of LEP 2013 does not apply. Secondly, the new cl 5.21 does not apply to the development application before the Court as it was made but not determined before the commencement of Order 2021.

Findings

I accept and prefer the interpretation and reasoning of Ms Nurpuri in relation to the effect of s 3.20 of the EPA Act. I am satisfied that s 3.20 of the EPA Act is directed to the implementation of an amending order which seeks to amend the mandatory provisions of the standard instrument as defined at cl 3 of the Standard Instrument Order. The mandatory provisions of the standard instrument form the basis of LEP 2013. Section 3.20 (5) of the EPA Act makes provision for such an amending order itself to contain savings and transitional provisions. For example, Order 2021 at cl (2) provides for commencement of the order on 14 July 2021, but did not include specific savings or transitional provisions, although that option was available pursuant to s 3.20(5) of the EPA Act. However, cl 8 of the Standard Instrument Order provides the default arrangement for amending orders, which pursuant to subcl 8(1) is that the amending orders do not apply to any development application made but not determined before the commencement of the orders. I am not persuaded by Mr Simington's submissions that from 14 July 2021, cl 5.21 was incorporated into LEP 2013.
As a consequence, I find that cl 5.21 of LEP 2013 does not apply to the development application as it was lodged and not determined before 14 July 2021. Further, I am satisfied that the Flood Planning SEPP repealed cl 7.2 of LEP 2013 on the same day and did not include a savings provision with respect to undetermined applications.
Having regard to the proceeding, neither of the specific flooding provisions in LEP 2013 apply to the determination of the current development application. In note this conclusion is consistent with other decisions of the Court, including IDA v CC Council at [28-32], Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649 at [48], Gardiner v CC Council 2022 at [24] and Leda v Northern Beaches at [9].
Notwithstanding the lack of a specific provision in LEP 2013 to address flooding, it is an agreed fact that the subject site is located in an area subject to flooding. Therefore, the consideration of the flood risk and impacts are a relevant matter in the determination of the development application: s 4.15(1) of the EPA Act.

Wyong Development Control Plan 2013

The consideration of the planning controls in DCP 2013 in relation to flood management, the likely impacts of the development and the suitability of the site for the development remain relevant considerations in the evaluation of the merits of the development application: s 4.15(1) EPA Act.
The relevant planning controls in DCP 2013 are contained in Chapter 3.3: Floodplain Management. The objectives of the chapter are: "Chapter 3.3: Floodplain Management - to minimise the risk to human life and damage to property by controlling development on flood prone land. - to apply a performance and merit based approach to all development decisions taking into account ecological, social, engineering, safety and environmental considerations to ensure development is appropriate and sustainable. - To ensure that the development or use of floodplains, waterways and riparian corridors does not adversely impact upon aesthetic, recreational and ecological values. - To ensure that all land uses and essential services are appropriately sited and design in recognition of all potential floods. - To promote flood compatible building design that considers requirements for the development of flood prone land and does not adversely impact on adjoining properties. - To establish guidelines for the development of flood prone land that are consistent with the NSW Flood Policy and NSW Floodplain Development Manual (2005) and as updated by the associated Floodplain Risk Management Guides."
Further, Appendix C of DCP 2013 provides detailed assessment criteria for development including matters such as:

Compatibility with established Flood Hazard/ Flooding impacts and behaviour;
Impact on other land/ Cumulative effects of development;
Manage risk to life;
Warning and evacuation;
Environmental impacts;
The cost;
Ecological sustainable development;
Climate changes; and
Emergency services.

The subject site is located in Precinct 2, which in combination with the proposed use mean that the provisions of DCP 2013 require a performance-based assessment to demonstrate that the proposed development is compatible with the flooding characteristics of the site: s 3.2 of DCP 2013.
For performance-based assessment DCP 2013 requires a flood report from a suitably qualified engineering professional that addresses the following matters: "a) is compatible with the established flood hazard of the land. In areas where flood hazard has not been established through previous studies or reports, the flood hazard must be established in accordance with the Floodplain Development Manual. b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; c) incorporates appropriate measures to manage risk to life and property from flood; d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. f) is consistent with the principles of Ecologically Sustainable Development. g) adequately considers the impact of climate change. i) It is to be noted that with regard to climate change, appropriate benchmarks based on the best available current information have been used in producing the flood risk management studies and plans that inform this document. ii) Some prescriptive requirements such as flood planning level requirements may be relaxed if Council can be satisfied that the projected life of the proposed development is for a relatively short-term and therefore does not warrant the imposition of controls that consider impacts beyond the cessation of the proposed development. This will only be considered for uses where the residual risk to the occupation of the development is considered to be low. This may include certain temporary or demountable structures but would not include residential developments."
The Respondent argues that the matters at (a), (c) and (e) are of relevance to the consideration of the development application.
In accordance with s 4.15(3A)(b) of the EPA Act the provisions of DCP 2013 are to be applied flexibly and the consent authority is to allow for reasonable alternative solutions that achieve the objectives of the standard.

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

In their joint report the flood engineering experts reached agreement on the following particulars:

That the predicted flood level for the probable maximum flood (PMF) level is 2.7m AHD and for the 1%AEP flood event is 2.23 AHD.
That the flood velocity is low (0.2m/s) and at a depth of 0.4m at the location of the proposed development.
Based on the hazard definitions in the 2005 NSW Government Floodplain Development Manual ('Floodplain Manual') that the location of the proposed building is defined as: H1: 'Generally safe for people, vehicles and buildings; and H2: Unsafe for small vehicles'.
That the habitable floor level of the proposed building is located at RL 2.73, above the flood level at the PMF. The proposed garage is located at RL 2.13 AHD.
That in a 1%AEP event the levee wall created by Wilfred Barrett Drive is overtopped (RL 2.06AHD) and the North Entrance Peninsula requires flood preparation, evacuation or shelter in place.
At the peak of the 1%AEP event (RL 2.23AHD) all immediate evacuation routes would be inundated.
That the new building is designed to better withstand the forces of flood water up to the PMF, when compared with the existing building.
At the time that the flood level criteria for the SES to issue an evacuation order are met, the subject site is not inundated. (Exhibit 4, 8)

Mr Dewar argues that the proposed development is not compatible with the flood characteristics of the site on the following grounds:

That the development, for dual occupancy development, will increase the number of people onsite and exposed to risk in a 1%AEP flood emergency.
That flood evacuation in a 1%AEP event is unsafe due to the local roads being inundated, including a section of road to a depth equivalent to the hazard category H3 'unsafe for vehicles, children and the elderly'.
That entering floodwaters (in the event of late evacuation) exposes people to risks of submerged objects, debris etc
That it cannot be guaranteed that the occupants of the proposed development will:
Receive the direction to evacuate
Comply with the direction to evacuate when given by the SES
That during the 1%AEP event, and greater events, the residents of the subject site (and the North Entrance peninsula more broadly) are likely to be isolated for an extended period given the levels of Tuggerah Lake need to recede to 0.4m AHD before the culverts under Wilfred Barrett Drive can drain flood water from the peninsula.
That if residents decide to leave the subject site during the flood event they will traverse flood waters of H3 hazard category, defined as unsafe for people and vehicles in the Floodplain Manual.
That sheltering in place for an extended duration is unacceptable and will subject occupants to unreasonable stress and conditions. He argues that residents will be without sewerage services, likely to be without electricity and may have insufficient supplies. Further, he argues that during the peak of the flood they will be unable to leave the site in event of a medical emergency. (Exhibit 4)

For these reasons Mr Dewar concludes that the proposed development is incompatible with the flood risk of the site, will increase the flood risk to life and should be refused on these grounds.
In the alternative, Mr Wyllie argues that the Flood Response Plan, and the ability for residents to shelter in place, is an appropriate response to the flood hazard of the site. Further, he says the evacuation route is safe for a minor flood (up to 0.8m in Tuggerah Lakes) and that when the SES issues the evacuation order it is safe for residents of the subject property to leave. However, he accepts that 'evacuation during major flood events would be unadvisable and occupants shall remain in buildings (Shelter in Place).' (Exhibit 4)
In his evidence Mr Wylie references a hydrograph prepared based on the 1994 Lawson and Treloar "Tuggerah Lakes Flood Study". The hydrograph graphically represents the flood levels and durations of 'minor', 'moderate', and 'major' flood events. It nominates that Bondi Road and Wilfred Barrett Drive remain driveable when the water level is at RL 2.0 AHD. (Exhibit J) Further, Mr Wylie prepared a cross section of the road profile of the evacuation route. The cross section indicates that a small section of the road profile of the evacuation route, in Minni Road between Bondi Road and Wilfred Barrett Drive, has a water depth of 0.7m at the peak of the flood and would be unpassable. I note that the flooding experts agreed, based on a study prepared by the University of NSW, that large 4WD's are not recommended to access flood depths of greater than 0.5m even at low velocity. (Exhibit 8) However, it is Mr Wylie's evidence that the SES would be able to traverse the small section of Minni Road with flood depths of greater than 0.5m by other means (watercraft) if evacuation was required at the peak of the flood.

Submissions

Mr Symington submits that on the evidence it is inappropriate for the proposed development to offer no safe evacuation route during a major flood event and for the Applicant to instead propose that occupants that gave not evacuated early shelter in place.
In support of his submissions Mr Simington relies of the following extracts of the SES Wyong Shire Local Flood Plan:

Section 3.18: Managing Evacuation Operations "3.18.1 When there is a risk to public safety, evacuation is the primary strategy. Circumstances may include: (a) Evacuation of people when their homes or businesses are likely to flood. (b) Evacuation of people who are unsuited to living in isolated circumstances due to flood water closing access. (c) Evacuation of people where essential energy and utility services are likely to fail or where buildings have been made uninhabitable. ,…"
Evacuation triggers for the Wyong Shire Council area: "Sector A: Rising water levels in Tuggerah Lake threatening inundation of low-lying populated areas around the Lake, including … The Entrance North. Roads in these areas commence inundation when the Lake exceeds about 0.5, and property inundation commences at about 1.6m"
That the remaining Sectors in the Wyong Shire Local Flood Plan have a strategy of 'shelter in place, where as Sector A, which includes The Entrance North, does not. (Exhibit 2)

And the following extracts from the Tuggerah Lakes Floodplain Risk Management (WMA Water, 2014) study:

Section 2.3 in discussing a precinct which includes The Entrance North: 'Many of these areas have high hydraulic hazard in the current flood planning event and during floods there are significant concerns about property damage and the safety of residents. These low-lying areas currently do not have satisfactory access during a large flood event, a situation that will only be exacerbated by potential sea level rise. The level of existing flood risk and vulnerability of infrastructure to flooding risks in these areas inadequate for residential purposes. However, the rise in water level in Tuggerah Lakes is relatively slow (24 to 48 hours) and if given adequate warning and made flood aware and prepared, and if inclined many residents should be able to evacuate safely.' … Provision of safe evacuation is a short term solution for many of the existing properties located within the flood affected areas of Tuggerah Lakes. It is however recognised that evacuation can be difficult to enforce when people are actually directed to evacuate. This has become obvious during the recent flood events throughout QLD, Victoria and NSW in the past couple of years, with the media reporting many stories of "people staying behind". These attitudes need to be addressed through the flood awareness program work, which has been listed as a separate recommended mitigation option. … Public health issues are the biggest issues facing floodplain management in the Tuggerah Lakes catchment. This is due to the vulnerability of the sewer assets in numerous locations, which has lead (sic) to sewer overflows in residential areas during previous flood events. (Exhibit 2)

Mr Simington notes that the flood study prepared by the Applicant in support of the development application firstly states that flood evacuation from the site is not recommended and that instead the occupants should shelter in place given the proposed floor levels are above the level of the PMF. But, Mr Simington identifies, later in the flood study it states: "the A49 [Wilfred Barrett Drive] shown in Figure 1 is flood free north of the site and could be used for emergency evacuation considering inundation of the site to flood peak is 12 hours." (Exhibit A)
Further, Mr Simington argues that the Flood Response Plan is inadequate in that it:

does not provide occupants any indication of how long they will be isolated in the dwelling during a flood event if they choose to shelter in place.
Encourages residents to believe they will be able to rely on emergency services to rescue them if they have an emergency during the 1%AEP event.
Does not provide any guarantee that occupants will not attempt to evacuate after it is safe to do so out of anxiety or distress, recognising that at the peak of the flood the experts agree that part of the evacuation route (the section of Minni Road with a depth of 0.7m) is classified as H3 by the NSW Flood Plain Management Manual.

On the preceding basis, Mr Simington argues that the Court would prefer the evidence of Mr Dewar and his conclusion that firstly shelter in place is an inappropriate strategy for managing the flood risk at the site and that secondly the proposed development is not compatible with the flood affectation of the site as it proposed to increase the density of development. Mr Simington submits that in the Respondent's assessment of the development application should be refused on these grounds.
Finally, Mr Simington submits that the following caselaw is relevant to the Court's consideration: Gardiner v Central Coast [2020] NSWLEC 1077 (Gardiner v CC Council 2020) and Gardiner v CC Council 2022. In determining the development application, I have considered Mr Simington's submissions in relation to these cases, their reasoning and findings.
In the alternative, Ms Nurpuri argues that the development application warrants approval. She emphasises that in determining the development application the Court would give consideration to the following matters as part of its assessment under s 4.15 of the EPA Act and to support the Applicant's conclusion that the development application should be granted consent:

That the use sought by the development application is a use permitted with consent in the zone. Further, the development application is compliant with the relevant controls in LEP 2013 and SEPP Resilience and Hazards. She submits that applying BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 ('BGP Properties') at [118] the Court should approve the application in circumstances where the environmental impacts are acceptable.
That chapter 3.3 of DCP 2013 does not contain a provision or a statement that 'shelter in place' is unacceptable. Rather, it sets a framework for performance-based assessment, including the submission of a Flood Risk Assessment Report by a qualified engineer. This provision is met by the Applicant by the submission of the Flood Report prepared by Mr Wyllie.
That in order to address the risk to human life and property from flood events, the floor level of the dwelling is designed to be above the flood planning level of the PMF. This approach has been adopted by the Applicant despite the subject site being in a low-risk flood area (Precinct 2: Flood Planning Area). Ms Nurpuri notes that during a 1%AEP event the site is inundated by flood water to a depth of 0.3-0.5m.
The Applicant has prepared a Flood Response Plan and proposes conditions to ensure that future occupants are aware of the existence of the plan and its contents.
That given the sites low hazard location, extent of water depth that may inundate it, and the low velocity of the flood water, the proposed development provides a structurally stable and safe option for residents to shelter in place. (Applicant's written submissions 7 April 2022)

Ms Nurpuri submits that the Court would prefer the evidence of Mr Wylie over that of Mr Dewar on the following basis:

That contrary to the matters agreed between the experts (summarised at [46]) Mr Dewar makes a number of unconvincing remarks in the joint report, including: "- There is an increase of risk to life by increasing occupancy on the Site (page 11 and 12) - Flood education such as signage or the Flood Risk Management Report is insufficient (page 11) - Approval of the DA would result in Council having to approve all future proposed development (page 12) - Suggests any redevelopment of the Site where site coverage is increased would not be permitted, and refers to a site specific DCP (which does not exist and is contrary to recent approvals granted by Council) (page 13) - Shelter in place is unacceptable as it results in an increased demand on emergency services and the SES (page 13).'"(Applicant's written submissions 7 April 2022)

Ms Nurpuri notes that in support of his conclusions Mr Wylie relies on documents, reports and media documents that are either of little weight or not directly applicable to the flooding characteristics of the subject site.
Finally, Ms Nurpuri submits that the following caselaw is relevant to the Court's consideration: Salic v City of Parramatta Council [2021] NSWLEC 1309 ('Salic v Parramatta'); Sleiman v Central Coast Council [2019] NSWLEC 1549; and IDA v CC Council. In determining the development application, I have considered Ms Nupuri's submissions in relation to these cases, their reasoning and findings.

The development is compatible with the flood risk

I accept the agreed evidence of the experts as to the characteristics and flood risk of the subject property, as summarised at [46]. For the reasons that follow I am satisfied that the development proposed is compatible with the specific flood characteristics and risk applicable to the subject property.
I accept and prefer the submission of Ms Nupuri that in his evidence Mr Dewar seeks to give inappropriate weight to documents that are neither environmental planning instruments, development control plans as defined by s 4.15(1) of the EPA Act or Council policies: Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [8]. The documents to which Mr Dewar refers are informative of the flood characteristics, the intended response of emergency services and the risk of various flooding depths on the subject site. However, these documents do not fill the void or rise to the level of controls in a development control plan or environmental planning instrument.
Further, I agree with Gray, C in Salic v Parramatta that the provisions of a development control plan are entitled to significant weight, but they cannot be considered nondiscretionary development standards or determinative of the development application: Zhang v Canterbury City Council (2001) NSWLR 589 at [75]. In these proceedings the relevant provisions of DCP 2013 are those extracted in this judgement at [40-43]. In effect, applying the table at 3.1 the development is subject to "performance assessment" and is subject to the controls at s 3.2. Those provisions require a Flood report from a qualified engineer that addresses the matters listed at s 3.2 of DCP 2013. The Applicant has met this requirement by the submission of the Flood report from Mr Wylie. The development application does not seek to vary the controls in DCP 2013.
Applying the criteria listed at s 3.2 for performance-based assessment I am satisfied the proposed development is acceptable for the following reasons:

The Applicant has established, and the experts agree on, the flood hazard applicable to the subject site. I accept and prefer the evidence of Mr Wylie that the proposed development is compatible with the flood hazard on the basis that: firstly, the floor level of the dwelling is higher than the FPL; secondly, that the building is designed to withstand the characteristics of the flood (which is at low velocity) and finally; that the entire dwelling is a reliable area of refuge for residents. I note that in a 1%AEP flood event the depth of flooding expected is 0.3m which is classified by the Floodplain Manual as H1: Low Hazard. Further, in the annexed conditions the development will require certification from a structural engineer that the dwelling is structurally designed to withstand flood waters to the depth of the PMF and velocity of 05.m/s.
There is no contention, or evidence in the proceedings, that the proposed development will affect flood behaviour or result in increased flood expectation of adjoining properties.
The Flood Response Plan is responsive to the specific site and the flood characteristics of the subject site in the North Entrance Peninsula. If strictly complied with there is agreement in my view between the experts that there would be no risk to life from the proposed development as the finished floor level of the building is firstly above the flood level of the PMF and secondly the building is designed to withstand flood waters.
There is no planning provision contained in DCP 2013 which provides guidance to an Applicant that shelter in place is a planning approach not supported by the Council. The period of isolation is expected to be approximately 12 hours. In my view the risk to life from occupants leaving during that time is minimal. Occupants who are located within a dwelling that is dry from ground level, with their possession safe, and in a structurally sound building able to resist flood flow forces and low inundation are in my assessment unlikely to seek to leave. Further, as a result of the conditions of consent they will have awareness of the Flood Response Plan.
I am satisfied on the evidence that the development application incorporates appropriate measures to manage risk to life and property from flood. I accept there is a residual risk of occupants failing to comply with the Flood Response Plan. However, I am satisfied this risk is minimal, is mitigated by the following conditions of consent and is a risk that needs to be considered in the context of the long warning time (48 hours) of the specific flood events in this locality. "2.6 The proposed dwelling shall be structurally designed to cater for all expected flooding, up to and including the Probable Maximum Flood (PMF) level of 2.7m AHD and velocity of 0.5m/s. The design shall be certified by a suitably qualified structural engineer and approved by the Principal Certifier. … 6.5 A Section 88B Instrument must be prepared for registration on title of all lots which requires the use to be carried out in accordance with the "Flood response Plan 2022 - 37 Bondi Road, The Entrance North". … 7.1 the "Flood response Plan 2022 - 37 Bondi Road, The Entrance North" must be visible at all times for the duration of the occupancy. 7.2 the "Flood response Plan 2022 - 37 Bondi Road, The Entrance North" must be provided as an Annexure to any lease for the dwellings." (Exhibit H)
Further, I note that during the proceedings Ms Nupruri confirmed the Applicant is willing to accept a condition that excludes the use of the subject site for short term rental accommodation as a means of further reducing the risk of occupants being unaware of the Flood Response Plan. As such the annexed condition of consent includes the following ongoing condition: "7.3 the subject site shall not be used for non-hosted short term rental accommodation as defined by cl 51B of State Environmental Planning Policy (Affordable Rental Housing) Amendment (Short-term Rental Accommodation) 2021"

In response to the concerns of Mr Dewar in relation to the potential for the late evacuation, and the attendant risks, I make the following comments:

The occupants would be able to safely traverse the extent of the proposed evacuation route with the exception of a small section of Minni Road. I accept the evidence of Mr Wylie that the relevant section of Minni Road could be traversed by watercraft if evacuation was deemed safe and necessary by the SES.
By reference to the SES Wyong Shire Local Flood Plan the sewer system will cease to operate "in its normal fashion" once Lake levels reach 1.6m AHD, concurrent with the timing of the issue of an evacuation order by the SES. The hydrograph indicates a flooding duration of approximately 22 hours before flood waters would recede below this level. The SES Wyong Shire Local Flood Plan describes these circumstances as: "A shutdown means that although the sewerage arrangements work for all the houses in the affected area that drain towards the lake, the pump stations do not work, so there are sewerage surcharges around the edge of that part of the lake that give rise to a potential public health issue and must be considered in conjunction with any questions of evacuation. Keeping in mind there are about 5000 parcels of land lower than the 100 year ARI flood level then the mere fact the sewerage system is not working in the usual fashion should not be the sole reason for initiating evacuation. It may be that a majority of those homes are quite habitable and an emphasis on public hygiene announcements may be preferable to implementing evacuation of people not at risk of inundation or isolation." (Exhibit 2)

Giving weight to the proceeding I am not satisfied that the concerns of the potential of late evacuation are sufficient to warrant the refusal of the application. I am satisfied that occupants will have between 24 - 48 hours warning time to ensure they either evacuate or have sufficient food and medication to withstand the period of isolation. I find the risk is satisfactorily mitigated by the Flood Response Plan, which provides sufficient detail of occupants of when flooding will occur. However, I accept the Flood Response Plan could be improved by the incorporation of clear details of the likely duration of any period of shelter in place. The Flood Response Plan should be amended prior to Construction Certificate to include this detail, I have imposed a condition to such effect. The Applicant is entitled to the presumption the conditions of the consent, including compliance with the Flood Response Plan, will be complied with: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99.
On the basis of the preceding I am satisfied the development is compatible with the Flood risk and the Respondent's contention is not made out.

The development is in the public interest

The Respondent's final contention is that the development is not in the public interest for three reasons, firstly it will create a detrimental precedent, secondly it represents an unacceptable risk to life and thirdly will result in burden on emergency services. It follows from my findings on the earlier contention that I am not persuaded that the final two particulars, risk to life and burden on emergency services, warrant the refusal of the application.
In relation to the issue of precedent it is my assessment that the development application will result in an improved built environment, as it will affect a reduction in property damage and risk from flooding when compared to the existing circumstances of the subject site. It does so by being designed and built both above the FPL and to withstand the floodwaters. Secondly, applying BGP Properties it is in the public interest for the planning controls to be applied, where environmental impacts are acceptable, in a manner that gives certainty.
Finally, I do not accept the argument of the Respondent that the approval of this development application will generate a precedent for the approval of other developments. Given the site and locality specific nature of flooding assessment, as well as the need to consider access and egress routes to a specific locality, a consent authority is required to determine the merits of a development application on a site-by-site basis. In my view this specificity reduces the general applicability of any such decision made in this instance by a consent authority in a future development application where the proposed development, its location and access will differ.

Conclusion

After an assessment of all the evidence under s 4.15 of the EPA Act I am satisfied that the amended development application is acceptable on its merits. In my opinion the development application warrants approval subject to the annexed conditions.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application DA/621/2020 for demolition of existing structures, construction of a dual occupancy (attached) and subdivision at 37 Bondi Road, The Entrance North (Lot 151 DP 18958) is granted consent subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibit A, B and 1. .…………………………

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: 27 May 2022

(2004) 138 LGERA 237

(2006) 144 LGERA 408

(2004) 136 LGERA 254

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