Primo Estates Pty Ltd v Wagga Wagga City Council

4 Gumly Gumly is located approximately 6 km to the east of Wagga Wagga and is bound by the Sturt Highway to the south and Murrumbidgee River to the north. It comprises a conglomeration of rural/residential type allotments generally ranging area from 2 to 4 ha. There are approximately 40 dwellings located on individual rural residential sized allotments within this area.

5 There are a number of other land uses located closer to the highway, including a school, sporting oval, general store and cafe/restaurant.

The proposal 6 The proposed dwelling is to be sited approximately 30 m from Gumly Road boundary and 30 m from Pioneer Avenue.

7 It is designed as a two-storey building, with a ground floor containing garage/storage area with reinforced concrete slab floodings and reinforced concrete block walls. The living area of the dwelling is to be located on the upper level with total floor area of 200 sq m. The specification for this upper floor is brick veneer with iron roofing.

Planning controls The site is subject to the provisions of the Wagga Wagga Local Environmental Plan 1985, under which it is zoned 1 Rural. It is also subject to the provisions of Wagga Wagga Rural Local Environmental Plan 1991 , where the following clauses 5, 10, 17 and 22 are relevant:

8 The land forms an existing holding under this LEP which is defined in cl 5 as:

(a) except as provided in paragraph (b) - the area of a lot, portion or parcel of land as it was at 1 November 1986; or (b) where, as at 1 November 1986, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land, the combined area of these lots, portions or parcel of land as they were as at 1 November 1986.

9 As the allotment forms an existing holding and contains no existing dwellings, council could consent of the erection of a dwelling on the subject land under cl 17 of the Rural LEP, which provides:

(1) The council shall not consent to an application to erect dwelling on vacant land within Zone No. 1 unless: (a) the land has an area of 200 ha or more; or (b) the land comprises - (i) an existing holding; (ii) an allotment created under this plan for a purpose other than and culture; or (iii) an allotment created in accordance with consent granted before the appointed day, being an allotment of which dwelling could have been erected immediately before the appointed day. (2) In this clause, "vacant land" means land on which no dwelling is erected.

10 The site is within a designated floodplain and cl 22 relevantly refers to flooding and states: (1) A person shall not erect a building or carry out work on the floodplain except with the consent of the Council. (2) 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 - (a) to impede the flow of flood waters on the land or land in its immediate vicinity; (b) to imperil the safety of persons on that land or land in its immediate vicinity in the event that flood waters inundate those lands; (c) to exacerbate the adverse effects of flood waters flowing on the land or land in its immediate vicinity with regard to erosion, siltation and the destruction of vegetation; or (d) to have an adverse effect on the water table of the land or land in its immediate vicinity.

11 Under the Pt 3 Special Provisions, cl 10 contains the following general considerations for development within rural zones: (a) the present use of the land, the potential uses of the land for the purposes of agriculture and the potential of any land which is prime crop and pasture land for sustained agricultural production; … (e) the cost of providing, extending and maintaining public amenities and services to the development; and (d) future expansion of settlements in the locality.

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 …

All development applications will be assessed in accordance with the provisions of the Flood Plain Management Manual Guidelines.

The evidence 14 Detailed evidence on behalf of council was presented by: + Mr C Collins, town planner with Wagga Wagga City Council (Exhibit 13); + Mr M Babister, consulting engineer (Exhibit 14); + Mr J Opper, Director Emergency risk Management-SES (Exhibit 15).

15 For the applicant evidence was presented by: + Mr A Newland, consulting planner (Exhibit C); + Mr I Rowbottom, consulting engineer (Exhibit D); + Mrs M Lamprey, local resident; + Mr T Lamprey, local resident; + Mr B Price, subject property representative.

16 The principal contested issue in this matter is whether the development should be approved, considering its level of risk to the safety of residents and property in the subject area arising from flooding.

17 It is common ground that the subject site is situated within the floodplain and subject to flooding. The available flooding details have been carefully considered by the engineers. Mr Babister has specific knowledge of these flooding characteristics in the subject area because he is project manager for the local Flood Study Review (Review), Floodplain Risk Management Study (FPRM Study) and Plan (FPRM Plan).

18 The Court was informed that the Review resulted in a new Flood Study Report (FS Report) that was published and accepted by council in September 2004. The FPRM Study is nearing completion with outstanding components including specific policies and management options, which then requires public consultation.

19 Consequently the respective the engineers have conferred and by reference to the aforementioned material, agree on the following factual matters: - the subject property has a natural surface level of approximately 182.0 m AHD, and is subject to flooding; - the best available information on flooding behaviour is in the Murrumbidgee River Wagga Wagga Flood Study (Webb McKeown, September 2004), which indicates inundation of the subject property up to a level of 1.4 m in a 100 year ARI design event with velocities of 0.2 m/s; - there will be at least one day warning time of an oncoming flood; - there are two primary evacuation routes from the property - one along Pioneer Ave to the Sturt Highway and one west along Gumly Road to Tasman Road. Any evacuation routes and evacuation centre will depend on the nature of flooding, but either Pioneer Avenue or Gumly Road will need to be used in the initial stage of evacuation; - under the provisions of the Floodplain Development Manual (2005) the" provisional" hazard categorisation, based on hydraulic factors (i.e. velocity and depth) is High Hazard.

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.

There can be no residents of Gumly Gumly that have any direct experience of the two highest floods on record - 1853 and 1844, and there has only been one flood of any real significance in the past 31 years - the 1974 flood. The Murrumbidgee valley has experienced a remarkably flood free last few decades and this is good luck will not last forever.

The experience of the SES is that long-term residents have generally developed a belief that all floods are like many small ones they experience. The behaviour of long-term residents is, as a result, often counterproductive to public safety. They are prone to ignore evacuation advice and stay in their homes, often surrounded by flood water because that is what they always do. Apart from the obvious safety issues of isolation, such a decision will, in bigger floods than those experienced, prove to be a very poor decision placing theirs and the lives of their rescuers at risk. Another problem we have observed, is that when newer residents seek confirmation of what a coming flood might mean to them, the older residents advice can lead to a lack of action. This happened in Grafton in 2001 when the older residents advised newer ones that the SES's evacuation call was wrong.

Paradoxically, the community tends to under react to flood warnings, especially when the lead time is long because they seem to think they can leave their action until the last moment. Again, this behaviour is often the result of previous experience with the more frequent small floods in which they behaved in that way and got away with it. 28 For his consideration of the evacuation arrangements, Mr Opper assessed the effectiveness of the existing Gumly levee on the following basis. This levee has been constructed some 0.9 km to the northwest of the property. He says that this levee is reckoned to have a safe gauge height of "9.6 m in the SES Flood Safe guide", which allows a free board of 0.15 to 0.3 m.

29 However, Mr Opper then refers to DIPNR advice that distinguishes between the apparent crest height of a levee and what is known as the design height, or safe working height. Insofar as the community behind a levee will almost universally see the crest of the levee as being the height that matters in a flood, from a flood warning and evacuation perspective however, the crest height is not the issue, according to Mr Opper. 30 Instead, it is generally accepted that an amount of freeboard of the least 0.5 m should be deducted from the levee crest height to arrive at the safe working height. Adopting a minimum 0.5 m freeboard, this means that the safe levee height is no more than 9.4 m and may also be as low as 9.25 m gauge. From the other evidence the hydraulic engineers, Mr Opper estimates that the levee protects the Gumly Gumly neighbourhood up to the 1:10 AEP flood level, which is about "9.3 m gauge".

31 Application of the SES's Flood Safe guide states that if the levee is expected to overtop, the area must be evacuated. The term overtop should not be taken literally to mean the crest height because if the community to be evacuated it should be undertaken before the "9.3 m gauge" height is reached.

32 Accordingly, Mr Opper identifies the effective warning time as an important term used in emergency management. This is the actual time available to people in the community to take action to protect themselves or their property from a hazard. He says that "in a flood context effective warning time cannot simply be read off a flood hydrograph showing the rise and fall off a flood". 33 Relevantly then, Mr Opper links the subject area to the neighbouring Wagga Wagga township area, which will necessitate the evacuation of some 1000 people in the same major flood event. He says that confirmation of the expected flood peak levels for Wagga Wagga will generally not be possible for more than 24 hours ahead of time. More importantly, low level evacuation routes will close before the peak of the flood is reached. This will be especially true in the bigger floods e.g. more than 10m at Wagga Wagga. 34 From this, Mr Opper estimates the effective warning time to residents of the Gumly area, could likely be in the order of less than 12 hours. Furthermore he says that floods in this valley tend to be in the winter months, which increases the risk factor because of shorter day length time and lower water temperatures. His conclusion is that:

This case is about the merit of residential dwelling to be built on riverbank land flooded in a 1:10AEP flood, protected by a levee of uncertain integrity with a safe height of only about the 1:10AEP flood level. The area has a low level evacuation route with a trapped low point, possibly lower than the 1:10AEP flood level, within a short distance of the proposed dwelling site (Babister p 5). This could create a flood island situation isolating the occupants before they have reacted. Effective warning time for evacuation may as short as 12 hours or even less in more severe floods. The proposal appears not to be linked to an essential rural land use. From the point of view of the SES it does not pass a merit based assessment. 35 The effect of this evidence contrasts markedly with that of the local residents Mr and Mrs Lamprey, who have lived in the area for a long time. Whilst they have contributed to and relied on informal communication and evacuation arrangements based on their experience in the area, it is apparent to me that this "well-meaning evacuation plan", is likely to be unreliable in many storm events.

36 Some of the obvious deficiencies are: + there is no list of affected residents to the contacted, + there does not appear to be clear understanding about the authority of any Warden to direct evacuations, + there are no guidelines to indicate the safest evacuation route and meeting place.

37 In my assessment, these deficiencies significantly increase the risk to persons residing in the area, particularly newcomers who may have an inadequate understanding of flood evacuation procedures and I consider this a negative aspect of the proposal. Therefore I consider that increased weight should be placed on Mr Opper's assessment and conclusion.

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.

42 In addition to this, he says that there are large number of other existing vacant allotments in North Wagga Wagga which are zoned rural under WWLEP 1985, which would likely result in pressure on council to approve dwellings on these allotments, should any approval of the subject application be granted.

43 Consequently, Mr Collins expresses concerns about the adverse cumulative impacts of development being approved within the flood plain, which introduces increase risk of life to residents in the absence of an adequate safety and evacuation plan. He does not support proposal for these reasons. 44 He also produced evidence to the effect that the development of this land to allow rural/residential housing is not part of council development strategy because there is adequate, other floodfree land available to satisfy this demand.

45 Against this, I have considered the evidence of Mr Newland who supported proposal on the following basis: + the land is zoned to permit the proposed dwelling house, + the dwelling house has been correctly designed to withstand the relevant flood event and has habitable floor level well above that flood event, + the size of the dwelling house is relatively small and is unlikely to have a significant impact upon flood behaviour in the surrounding area, + possible future development applications within the village will be subject to individual merit assessment at that time and cannot form part of the consideration of this application and therefore does not set a bad precedent, + based on a provisional assessment only, the development site falls within a High Hazard flood area. The Floodplain Development Manual provides that the true level of risk includes consideration of the effective warning time, local evacuation procedures and level of organisation, level of awareness of flooding, and relative danger to personal safety, + the SES has a comprehensive "FloodSafe plan for Gumly Gumly/East Wagga and there exists an established system of flood warning and flood heights via Bureau of Meteorology predictions and SES bulletins on local television and radio stations, + there is a high level of awareness of flooding in Gumly Gumly, and a strong sense of community within the small village. Residents are very likely to assist each other in the event of a flood.

46 However, considering the other competing evidence presented to the Court, it is apparent that a number of these points are not well founded, particularly the reliance on the current evacuation plans. Therefore I discount this evidence and rely on Mr Opper's evidence regarding the current limitations on evacuation arrangements in major flood events

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.

57 Insofar as I consider this application primarily fails because of its flooding liability and absence of effective evacuation plan, nevertheless another aspect concerns orderly planning considerations. In this regard I rely on Mr Collins's evidence that the development of the subject property for residential purposes is not consistent with current development strategy. Instead, other rural/residential land, which is flood-free has been identified for this type of use. Therefore I do not consider this proposal represents orderly development and therefore is a negative aspect, which also contributes to its failure. 58 Notwithstanding this, I have considered the applicant's submission regarding the servicing of the land, in terms of its available water supply and recently constructed sewer. But I do not consider this shall be given determining weight, unless the threshold issue of flood is first resolved. 59 An associated issue raised by council then concerns the precedential and cumulative impacts of allowing this development. In this regard I note Mr Simmington's submissions and reference to: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act [2002] 121 LGERA 101, where Lloyd J reviewed existing authorities in relation to precedent and cumulative impact and said:

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.

Court Orders 62 The orders of the Court are: 1 The appeal is dismissed. 2 Development consent to DA 05/0006 for the erection of a two-storey dwelling at 174 Gumly Road, Gumly Gumly, is refused. 3 The exhibits may returned except for Exhibits 13, 14, 15, 16, B, C and D. 4. No order as to costs.

              R Hussey
              Commissioner of the Court
              rjs

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