Primo Estates Pty Ltd v Wagga Wagga City Council

Primo Estates Pty Ltd v Wagga Wagga City Council - [2005] NSWLEC 632 - NSWLEC 2005 case summary — Zoe

[15]

12 Wagga Wagga Rural Development Control Plan 2002, ss 7.5.20 and 7.5.21 apply as follows: 7.5.20 - "flood plain" means the land shown diagonally hatched with black lines on the map, generally indicating that land flooded in the 1974 floods. o "floodway" means land within the floodplain determined by the Council, in consultation with the Department of Land and Water Conservation, as essential to the clear passage of flood water. o a person shall not erect a building or carry out work in the floodplain except with the consent of Council. o The council shall not consent to the erection of a building or the carrying out of work on land within a floodway if, in the opinion of the Council, the carrying out of the development is likely - o to impede the flow of flood waters on the land or land in its immediate vicinity; o to imperil the safety of persons on that land or land in its immediate vicinity in the event that flood waters inundate those lands; o to exacerbate the adverse effects of flood waters flowing on the land or land in immediate vicinity with regard to erosion, siltation and the destruction of vegetation; or o to have an adverse effect on the water table of the land or land in its immediate vicinity. o The council shall not consent to the erection of a building or the carrying out of a work in the floodplain unless it has consulted with the Department of Land and Water Conservation on the technical aspects of flooding and its effect on adjacent developments. 13 Section 7.5.21 states: A matter for consideration for council in determining development applications is whether or not the land to which the application relates is unsuitable for that development by reason of it being, or likely to be, subject to flooding. Specific details to consider in relation to flooding will cover the risk to life and property, the measures needed to minimise risk and whether the development or measures proposed to minimise the risk of flood damage are likely to increase flood risk elsewhere. Detailed considerations might include: o whether the floor height in the proposed development is above the flood level, o whether the proposed building materials are suitable, o whether flood free access is available or whether it should be required, o whether buildings are sited in the optimum position to avoid flood waters and allow evacuation, o whether minor structures, such as fences, are likely to affect would be affected by flood waters. o whether filling or other similar activities is likely to interfere with water movement …

[23]

20 The main area of disagreement between Mr Rowbottom and Mr Babister is how these other factors influence the hazard category and determine the ultimate risk to individuals and the community. Insofar as the relatively long warning time reduces the risk to public safety, nevertheless the negative aspects associated with any evacuation and access issues needs to be counter balanced in the development assessment, considering the local context. 21 According to Mr Rowbottom's evidence, the length of warning time as well as preparedness by the residents and the SES, will significantly reduce the risk to individuals and community. This means that the consequences of the hazard, or risks, are manageable and therefore the risk is low. 22 Mr Rowbottom also says that the SES Flood Safe Plan requires Gumly Gumly to be evacuated when the SES anticipates that the Gumly levee is going to overtop (which occurs in a 10 year ARI event). This should ensure that the residents of this area are evacuated before the access roads are inundated. 23 Insofar as Mr Babister disagrees with this conclusion as he considers the evacuation arrangements inadequate, both experts and defer to Mr Opper's opinion on the adequacy of evacuation arrangements. 24 Accordingly, Mr Opper provided a detailed statement, which contains the SES background philosophy for flood emergency management. He strongly supports the development of long-term and strategic planning to control development of the Murrumbidgee River floodplain. Whilst he acknowledges that the limited overall effect of one, or a few new dwellings in the floodplain requiring evacuation within an emergency is difficult to estimate, nevertheless he does not support this proposal. 25 Mr Opper refers to the merits based approach to development, which involves a strategic view of the entire floodplain as detailed in the NSW Floodplain Development Manual, rather than relying on the merits to the developer. 26 He recognises that rural land is a valuable community asset and that in some circumstances, the realisation of that asset may require residential occupation of the land, even though it is flood prone. Furthermore that: Within sensible safety limits the SES will accept dwellings which may need to be built on the flood prone rural land to support the intended land use. The service does not accept that residential subdivision, low productivity hobby farming, or small area viticulture investments for example, meet the spirit of this merit assessment. 27 In response to the applicant's submissions that Gumly Gumly has many long-term residents with experience of flooding and the existing informal evacuation arrangements are satisfactory for the residents of a new dwelling, he says that: " The experience or lack of it by the neighbours is hardly a sound basis on which to commit the community to the long-term legacy of the development decision.

[33]

38 The associated controls recognise the complexity of large-scale flood management and cl 15 of WWRDCP provides: Until council has adopted a flood plain management plan council will use the guidelines for development the general development control principles and techniques prepared by the State Government and included in the Flood Plain Management Manual of the New South Wales Government published January 2001. 39 Accordingly the Interim Development Guidelines in the manual specify several conditions in relation to infill development in a High Hazard Floodway. In particular, the special development considerations includes: In high hazard areas, the feasibility of effective evacuation procedures will be an essential element of management plans. The developer or property owner should be required to satisfactorily demonstrate to the consent authority that permanent, fail-safe, maintenance free measures are incorporated in the development, to ensure the timely, orderly and safe evacuation of people from the area, should a design flood or greater occur. In addition, it should also be demonstrated to the consent authority, that the displacement of these people will not significantly add to the overall cost and community disruption caused by the flood. A detailed report from an appropriate consulting engineer and a detailed study assessing social, environmental and ecological impacts should be required in support of a development application. Council should also consult with the SES on the proposal. 40 For the reasons mentioned previously, I am not satisfied that the requirements of the Interim Guidelines have been reasonably satisfied because no reliable, fail-safe evacuation plan to ensure the timely, orderly and safe evacuation has been submitted with this application. In my assessment of the proposal, this is a further negative aspect, which leads to its refusal. 41 The next issue identified by the council concerns precedential effects. This arises because there are a number of other similar "existing holdings", where the property owners may have an expectation for similar development. Mr Collins said that there are 5 other existing holdings in the Gumly Gumly area that have a dwelling entitlement and 3 of these are within 500 m from the subject site.

[38]

Conclusions 47 Having considered the evidence, submissions and undertaken a view, I do not consider this application merits consent, primarily because there is no fail-safe evacuation plan in place to provide a reasonable level of security and safety to any future residents of the new dwelling. 48 Even though the land is in the Zone 1 and it has a dwelling entitlement, nevertheless it is situated in the floodplain and liable to significant flooding. Accordingly the planning controls basically restrict the granting of consent to the development of land where the safety of persons on the land, or land in the vicinity, may be imperilled in the event of floodwaters inundating the land. 49 The extent of these restrictions is dependent on a number of factors, which relevantly includes the availability of a fail-safe, evacuation plan for residents in a flooding situation. It is helpful to some extent that a detailed flooding investigation and assessment has been undertaken to facilitate the adoption of a flood plain management plan for this local area. Based on the adopted levels from the 1974 flood, which is taken as the design flood event, the subject site would be inundated to depth of 1.4 m (approximately), which in my opinion necessitates the provision of a satisfactory evacuation plan for new residential type development. 50 Accordingly an evacuation of the site would be warranted prior to a major flood event. Under the current arrangements, flood warnings for the area are monitored, with particular reference to the flood level at the Gumly levee. When it is anticipated this levee is to be over-topped, evacuation is triggered and this relates to a flood event in the order of 10yr ARI. The floodwaters would take some further time to reach the subject property (possibly in the order of 12-24 hours). When they do, this then represents a 20 yr ARI event. 51 Consequently, it seems to me that a proper evacuation plan for this area would identify the designated evacuation route, considering the two existing roads available, with differing levels of risk depending on the flooding characteristics. In this situation, the shortest route is via Pioneer Avenue, but there is a natural watercourse traversing this road, which is estimated to be carrying a depth of 600-700 mm of water, travelling at approximately 0.3 m/s. In my assessment, it does not seem acceptable, or safe practice to direct evacuees, under emergency conditions, to travel into paths of deeper, faster flowing waters to seek higher ground. 52 Alternatively, the longer evacuation route via Gumly Road results in some 400 mm depth of water over the Road, travelling at 0.4m/s. 53 Under these circumstances, I consider Mr Opper's concern that an "island effect" should be given serious consideration and avoided wherever possible. This could occur where there may be little apparent awareness of potential flooding at the site and reluctance to leave, but at the same time the " low-level" evacuation routes have effectively become impassable. In my assessment, this clearly does not form part of a fail-safe evacuation arrangement and in this regard I rely on Mr Opper's opinion, which is a significant deficiency that contributes to the failure of the application. 54 Furthermore, in my assessment of the evidence it is reasonable to assess the evacuation arrangements within the overall Wagga Wagga flooding context. In a major flood event, approximately 1000 people may need to be evacuated from the nearby North Wagga Wagga residential area and it is likely that this could be required before Gumly Gumly. Under these circumstances, where the SES resources would be strained in a major flood event, I do not consider it orderly planning to allow the development of an additional house in the nearby residential area, which will place further demand on limited resources, particularly in the absence of a fail-safe evacuation plan. 55 From the evidence, it is apparent that there are a number of deficiencies in the current flood warning and evacuation arrangements. Hopefully these will be addressed in Floodplain Risk Management Plan. But reference to s 6.5.3 of this plan, which deals with evacuation planning, appears to contain scant details and provide little reassurance of any formal evacuation arrangements being formulated. 56 Insofar as I do not accept the residents' current evacuation plan as being adequate, I note the following unresolved matters raised by Mr Simmington in his submissions regarding matters to be included in a fail-safe evacuation plan: + it should be notified and adopted by all residents; + it should deal with all the relevant contingencies in relation to notifying residents of the need to evacuate; + deal with the relevant contingencies in relation to physically evacuating the frail or elderly; + specify a feasible process of checking which persons have evacuated and which have not; + contain a mechanism for updating the plan; + contain a process for updating the list of persons covered by the plan including contact details ; + provides for evacuation drills from time to time to ensure that all persons are familiar with the requirements of the plan.

[40]

A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 60 In my opinion, this line of authority applies in the subject case because Mr Collins identified a number of other similar properties, which are liable to flooding and which are also existing entitlements where there may be an expectation for dwelling house construction. Accordingly I consider that the precedential considerations result in a further negative aspect of the proposal. 61 In summary then, the subject site is located within the floodplain and subject to significant flooding with a High Hazard categoration. There is no effective, fail-safe evacuation plan as required by several aspects of planning controls and therefore I consider the application should be rejected. Insofar as reference was made to the Floodplain Development Manual provisions for the prevention of sterilisation of productive land, I do not consider this application results in sterilisation of a land, instead the land can continue to be used for its agricultural purposes, without the necessity to intensify its development by the construction of a dwelling house on it.

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