RBFI Pty Limited v Wollongong City Council

The Company's application and the flood planning policy

1. For the purposes of the dwelling application made by the Company, that flood planning level is 12.2 AHD. That level has been determined by reference to the flood level that would occur if debris carried downstream by flooding in American Creek were to block the culvert under the Freeway.
2. Because the Company does not wish to construct the dwelling with the ground floor rooms at 12.2 AHD for reasons associated with the necessity to place fill on the site in order to achieve such a development level, the Company seeks approval to construct a dwelling on a lesser amount of fill with the ground floor habitable rooms being at 11.2 AHD.

The Company's debris control structure proposal

1. In order to have this lower level rendered compliant with the Council's flood planning levels, the Company proposes to construct, across the path of American Creek, a structure described as a debris control structure (DCS). The Company proposes that the DCS be constructed downstream from the allotment owned by the Company at a location slightly upstream of a pedestrian causeway running north-south across American Creek from the head of O'Donnell Drive and along a pathway running parallel to the eastern boundary of the Figtree Gardens Caravan Park located along portion of the northern bank of American Creek.
2. It is the Company's position that the DCS will have the effect of lowering the flood planning levels for the proposed dwelling by 1 m.
3. The Company's flood study, prepared by Rienco Consulting, addresses the benefits said to be able to be obtained both for the proposed dwelling and elsewhere in the American Creek catchment. It is to be observed that the Council does not accept these conclusions.
4. The Amended Statement of Environmental Effects concludes: The proposed debris control structure is demonstrated to show substantive benefits in the management of flood risk in the locality, with such benefits extending to the Figtree Gardens Caravan Park, and approximately 70 existing residences in Platypus Close, Northview Terrace, Allendale Avenue, Edmund Avenue and O'Donnell Drive.
5. However, the accuracy or otherwise of the predicted outcomes for the DCS as reported in the Rienco Consulting study would be a matter for a merit assessment rather than being called up for evaluation on this separate question.
6. It is not necessary to identify, with precision, the range of upstream zones potentially benefited - merely to note that there are a range of such potentially benefited zones with these at least being the RE2 Private Recreation zone (Figtree Gardens Caravan Park) and RE1 Public Recreation zone - lying between American Creek and the caravan park.
7. It is sufficient for my purposes to know that the Company, itself, by virtue of its own application documents, proposes that the benefits will extend significantly beyond merely the dwelling for which consent is sought in this development application.
8. The distance between the DCS and the culvert which passes under the freeway would be approximately 120 metres. The DCS is proposed to be constructed by driving a series of concrete posts at regularly spaced intervals into the bank and bed of American Creek. The location where the DCS is proposed to be installed is owned by the Council and is part of a parcel of land (Lot 47 in Deposited Plan 838601). It is also zoned R2 pursuant to the LEP.

The relevant planning framework

1. The LEP is a conventional, modern one based on the Standard Instrument Template. The land use table in the LEP sets out, for the R2 zone, the conventional elements of: 1. the objectives of the zone; 2. development which is permitted without development consent in the zone; 3. development consent, which is permitted with development consent in the zone; and 4. development which is prohibited in the zone.
2. The provision in (4) for the R2 zone element of the land use table in the LEP mandates that if development does not fall within (2) or (3), it is prohibited. That is, any innominate development is prohibited unless it can be characterised for some reason as serving a purpose which renders it permissible.
3. The DCS, as a type of use, potentially falls within the definition of flood mitigation work in the LEP. This definition is in the following terms: flood mitigation work means work designed and constructed for the express purpose of mitigating flood impacts. It involves changing the characteristics of flood behaviour to alter the level, location, volume, speed or timing of flood waters to mitigate flood impacts. Types of works may include excavation, construction or enlargement of any fill, wall, or levee that will alter riverine flood behaviour, local overland flooding, or tidal action so as to mitigate flood impacts.
4. In this instance, construction of a flood mitigation work in the R2 zone where it is proposed to be located is an innominate prohibited use if constructed to serve that purpose. That, however, is not the end of the matter.

The Company's position

1. The Company advanced the proposition to the Council that, the DCS will, if constructed, permit the construction of the Company's proposed dwelling (with a ground floor level at 11.2 AHD). This is because of the beneficial flood planning level reduction impact of the DCS trapping debris before it can block the culvert under the Freeway and therefore the DCS (although being for the defined use of a flood mitigation work) serves the purpose of the Company's proposed residential development ( a dwelling house).
2. As the Company's proposed development of the house on the allotment owned by it is permissible in the R2 zone, the Company advances the proposition that, in a proper characterisation sense, the DCS serves the purpose of its proposed development of a dwelling house - development which is for the purpose of which is expressly rendered permissible with development consent as a consequence of the provisions in (3) of the land use table in the LEP for this zone.

The Council's position

1. The Council rejects this approach and says that the proposed DCS, properly characterised, would serve the separate and distinct purpose of a flood mitigation work and is not for the purpose of a dwelling house. The Council submits, as a consequence, the flood mitigation work is prohibited at the proposed location in the R2 zone. As a further consequence, the Council submits, the Company's development application must be refused.

The Company's appeal

1. The Company's development application was made on 7 June 2017. As a consequence of the Council's deemed refusal of the Company's application, on 9 August 2017, the Company lodged a Class 1 merit appeal, seeking that development consent be granted by the Court for the proposed dwelling and for the DCS.
2. If the position advanced by the Company is to be accepted, the proposed dwelling and the DCS would proceed to a merit assessment. If the position advanced by the Council is correct, the appeal concerning the house and the DCS requires to be dismissed.

The separate question hearing

1. For the reasons set out in the following section of this judgement, the matter has been set down for determination of a separate, preliminary question concerning characterisation of the development of the DCS for which the Company seeks approval. The separate question requiring determination is in the following terms: Is the proposed erection of a debris control structure on the land known as American Creek, being Lot 47 DP 838601, a public reserve owned by Wollongong City Council, as depicted and described in the Amended Statement of Environmental Effects dated 16 October 2017, development which is permissible with consent under the Wollongong Local Environmental Plan 2009?

The separate question hearing

1. The hearing of the separate question was held on 8 December. The parties provided a short Statement of Facts which had been agreed and this became Exhibit A. An agreed bundle of documents was also tendered and became Exhibit B. I was assisted by concise written submissions by Mr Nash, barrister for the Company, and Ms Reid, barrister for the Council. As a result, the hearing was able to be heard efficiently and completed in half a day.

Background

1. In addition to that which was set out in the Statement of Agreed Facts, during the course of the hearing, the parties also agreed that the flood planning level lowering effect of constructing the DCS would not only apply to land upstream of it in the R2 zone but would also provide benefits to other land upstream of the DCS.
2. Similarly, an examination of the relevant flood mapping in the Company's flood study prepared by Rienco Consulting (at Folio 144 of Exhibit B) discloses that there are potentially flood level benefits for the Freeway itself and some smaller areas of land to the east of the Freeway. It is, also, not necessary to have any precision about this.
3. A use must serve a purpose (Shire of Perth v O'Keefe (1964) 110 CLR 529). In the context of the R2 zone element of land use table of the LEP, development, which is classified in (2) and (3) can be the purpose served by one or more uses.
4. A piece of equipment can serve different purposes depending on the context of its use. For example, an item of plant, a water pump for instance, may be used to serve, potentially, a range of purposes. The pump might be connected to a crop irrigation system and thus serve the purpose of intensive agriculture. Equally, it may be connected to the filtration system of a residential swimming pool and be used to serve a dwelling house. However, if the same pump was being used for the filtration of the same swimming pool, but it was a swimming pool which was being used for a swimming school for which tuition fees were being paid, although use of the pump for the circulation of water remained the same, the purpose which it was serving would have been for commercial premises rather than for a dwelling house.
5. There is no dispute between the Company and the Council that the use of the structure that the Company proposes to install in American Creek is what is defined in the LEP to be achieved by a flood mitigation work.
6. However, the next step that is required is to establish what is the purpose served by that use. It is only by ascertaining and determining the purpose served by the use that the characterisation of the development can be determined and, hence, its permissibility.
7. In this instance, development for the purpose of a flood mitigation work in the R2 zone, the zone which encompasses the site in American Creek where the debris control structure is proposed to be located, is prohibited development. The facultative provision in State Environmental Planning Policy (Infrastructure) 2007 which would have the potential effect of rendering development for such a purpose permissible (Div 7, cl 50) is not available because this provision is only operative for development for the proposed purpose of a flood mitigation work in the R2 zone if it is undertaken by a public authority. Clearly, that is not here the case.
8. On the other hand, development to serve the purpose of a dwelling house is permissible in the R2 zone where the DCS is proposed to be constructed across American Creek.
9. I have earlier described the location of the Company's proposed dwelling as well as the location of the proposed DCS. As earlier noted, they are separated by approximately 250 metres.
10. Mr Nash submitted that the extent of the separation between the site of the proposed dwelling and that of the proposed DCS was not a matter of relevance. It was sufficient, he submitted, that construction of the DCS was for the purpose of construction of the proposed dwelling house. I accept that this is potentially the position.
11. However, Mr Nash's submission also is that the DCS will only serve the purpose of development of the Company's proposed dwelling and that any other benefits which may be derived from the DCS elsewhere in the American Creek catchment are merely serendipitously derived ones and do not require further consideration in this analysis.
12. For the reasons which follow, I do not accept this premise.

Introduction

1. The Amended Statement of Environmental Effects prepared for the Company by Rhelm and forming part of the materials in support of the Company's development application reveals that:

• the Company proposes to construct the DCS and then to hand it over to the Council to become public infrastructure which would need to be serviced and maintained by Council; and
• the cost of installation of the structure was to be of the order of $150,000 with annual maintenance costs of approximately $15,000 (these, it being said, would be at least partially offset by reductions in costs necessary to maintain the culvert under the Freeway as debris free).

1. It is clear from the costing that the proposed DCS could not conceivably be economically viable solely to service this proposed dwelling. However, Mr Nash put the proposition that, whether or not the Company chose to pursue what was, on the face of it, an uneconomic development (although it is self-evident that the proposed DCS will also affect a lowering of the flood planning level for the remainder of the allotments on the Company's approved subdivision), the choice was a matter for the Company and not in issue for consideration in my determination as to how the purpose of the DCS should be characterised.
2. Although I did not express it at the time, I have, on reflection, some reservations about this proposition. However, for the purposes of this analysis, I am prepared to accept Mr Nash's submission on the issue of economics as it does not affect the overall conclusion I have reached on the characterisation issue.

Introduction

1. The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities carried on, not in terms of the detailed activities (Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 cited at [36] in Chamwell - see below).
2. After taking me through the matters set out above, Mr Nash took me to four cases which he submitted had particular resonance with the proposal with which I am dealing.

Terra Ag Services Pty Limited v Griffith City Council

1. Preston CJ had published his decision in Terra Ag Services Pty Limited v Griffith City Council [2017] NSWLEC 167 on the day before this separate question hearing. His Honour, usefully, dealt with the principles applicable to characterisation of the purpose served by a use.
2. Mr Nash took me to a number of passages in his Honour's reasons. It is not necessary to go in any detail to the passages which set out the (uncontroversial) principles to be applied.
3. Terra Ag Services deals with whether there was more than one use proposed on the site of the proposed development; if so, what was/were the purpose(s) served; and what would be the outcome arising from the relevant finding.
4. All of the elements requiring consideration were on the one site; in the one zone; and integrated, his Honour held, as part of a single enterprise. Not only did all the parts serve the same permissible purpose, as part of a single enterprise, they could not serve any other purpose.
5. This case is not readily applicable to the circumstances here requiring consideration.

Chamwell Pty Limited v Strathfield Council

1. As was discussed by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114, the structure his Honour was needing to characterise was proposed to be constructed for the purposes of serving the supermarket to which it provided access.
2. The applicant in the case submitted that that which was proposed was to be characterised as a "road", as if it were some form of thoroughfare analogous to a suburban street. However, his Honour found that, properly characterised, the road was serving the purpose (and only serving the purpose) of the supermarket. Thus, the proposed development was for the purpose of a "shop" (the supermarket) which was prohibited in the zone within which the road was proposed to be constructed.

Site Plus Pty Ltd v Wollongong City Council

1. The next of these cases was the decision of Craig J in Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125. In this instance, there was a proposal for the location of a resource recovery centre on a parcel of land where use of the land for that purpose was permitted. However, access/egress was proposed to be obtained over two adjoining allotments in order to reach the nearby main road.
2. Use of those two allotments for the purpose of a resource recovery centre was prohibited. However, use of those two allotments for the purposes of a road was permissible.
3. The applicant for the resource recovery centre sought to characterise the use of the two adjoining allotments as being for the purpose of a road and thus being permissible. Craig J rejected this proposition and held that, as the proposed access/egress road was a necessary and integral part of the proposed resource recovery centre, the development on the adjacent allotments was also to be characterised as serving that purpose and was, therefore, prohibited.

Conservation of North Ocean Shores Inc v Byron Shire Council

1. The final case upon which Mr Nash relies is the decision of Preston CJ in Conservation of North Ocean Shores Inc v Byron Shire Council & Ors (2009) 167 LGERA 52; [2009] NSWLEC 69. In that instance, the facts of the case are very similar to those of Site Plus (even though this was a Class 4 challenge to development consent rather than a matter in Class 1).
2. The development approved by the Council was for a temporary music festival - a "place of assembly". The consent spanned a number of separate parcels of land - one of which was zoned 7(k) Habitat Zone under the relevant local environmental plan. The land zoned 7(k) Habitat Zone was proposed to be used to access the site of the music festival but was not the location of the festival proper.
3. Development for the purpose of a "place of assembly" was prohibited in the 7(k) Habitat Zone. A limited (enumerated) range of development was permitted in that zone. One of these was roads.
4. To similar effect as Site Plus, his Honour held that the proposed road was to be characterised, properly, as serving the purpose of place of assembly and was, as a consequence, prohibited. The construction of the works was not to serve the purpose of a road.
5. Again, the proposition that the development should be unbundled in order to assess separate purposes to establish permissibility when, if all the elements of the proposed development were bundled together and regarded as being for a common purpose, some of those elements would be being carried out in a zone where that bundled together purpose was prohibited.

Mr Nash's proposed conclusion from the cases

1. What Mr Nash proposes in the present circumstances is that I should treat the Company's proposal as being a single, bundled development with all of its elements being to serve the purpose of the dwelling house proposed to be erected on the land owned by the Company.
2. Mr Nash submits that, by analogy with the above cases, the Company's proposed DCS should not be characterised as being for the purpose of a flood mitigation work but should be characterised as being to serve the purpose of a dwelling house, and therefore permissible.

The Council's response

1. The Council resists the proposal and submits that, properly characterised, the DCS is a flood mitigation work and, thus, prohibited in the R2 zone. It is not necessary to deal, at length, with the written or oral submissions made by Ms Reid on behalf of the Council. It is sufficient to set out one element, an analogy by absurdity, relied upon by Ms Reid in her written submissions and then explain why this is an apt illustration of the defect in the Company's application. Ms Reid wrote: If the DCS were characterised in the way in which the applicant urges it would be akin to finding that the construction of Warragamba Dam was for the purpose of a single dwelling house because it served to provide drinking water to a single dwelling house.

Consideration

1. In each of three of the instances Mr Nash relied on what he submitted were analogous circumstances:

• Chamwell - supermarket not road;
• Site Plus - resource recovery facility not road; and
• Ocean Shores - place of assembly not road.

1. Each of the potentially permissible (but actually coloured with impermissibility) functions of that which was proposed was solely to facilitate the activity that it was intended to serve, thus defining the purpose served and hence the correct characterisation - resulting in, in each instance, the structure serving a prohibited purpose.
2. Here, Mr Nash submits, the "flip side" arises - taken together, the purpose of the permitted dwelling house renders the prohibited flood mitigation work permissible as it serves the dwelling house.
3. In this instance, as earlier discussed, the proposed DCS does not provide a facility exclusively dedicated to the dwelling that the Company proposes to erect. Indeed, as earlier noted, the DCS (if constructed) will provide an ameliorating and beneficial impact on flood planning levels not only for the Company's proposed dwelling, but also across multiple zones in the American Creek catchment.
4. Although there might well be a hypothetical circumstance where a DCS would serve a single dwelling, and was, thus, capable of being characterised as for the purpose of that dwelling, that is certainly not the case here.
5. Whilst the proposition advanced by Mr Nash is superficially attractive (although, obviously, somewhat exotic with respect to the element on American Creek proposed to form part of the dwelling house application), I am unable to accept the proposition that the purpose for the construction of the proposed DCS is the erection of the dwelling house on the company's land. Whilst facilitating the erection of that dwelling house, that is not the purpose served by the proposed DCS. The purpose served is, in my view, without question, flood mitigation within the wider American Creek catchment. That means that the DCS is properly to be characterised as a flood mitigation work and is, therefore, prohibited.
6. Although the DCS serves the dwelling, it only does so as part of serving a wider purpose. Because the DCS provides the service of mitigation of flood planning levels in the broad sense noted, it is to be regarded as serving the purpose of flood mitigation by being a flood mitigation work. Properly characterised as that, this element of the Company's proposed development is prohibited and must be rejected.
7. Mr Nash and Ms Reid agreed, during the course of the hearing, that if I reached this conclusion, the appropriate outcome was that I should dismiss the Company's appeal. I agree with them.

Conclusion

1. I am satisfied that the separate question: Is the proposed erection of a debris control structure on the land known as American Creek, being Lot 47 DP 838601, a public reserve owned by Wollongong City Council, as depicted and described in the Amended Statement of Environmental Effects dated 16 October 2017, development which is permissible with consent under the Wollongong Local Environmental Plan 2009? is to be answered: No
2. As a consequence, the Company's proposal to erect a debris control structure in American Creek is prohibited.

Orders

1. It therefore follows that the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA 2017/671 for the erection of a dwelling at 15 Arkell Drive, Figtree and the construction of a flood mitigation work in American Creek at Figtree is determined by refusal; and 3. The Exhibits are returned.

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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: 12 December 2017