Rothshire Pty Ltd v Fairfield City Council

Notifications and objector submissions

1. Consistent with the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000, the Proposed Development was placed on public exhibition by the Respondent on 17 January 2020 for two weeks and no public submissions were received in response to that notification.

Contentions

1. At the commencement of hearing the Parties advised that certain contentions in the appeal were resolved on the basis of the joint report of the expert planners and the expert building surveyors (see below at [14]).
2. The contentions resolved and the basis for that resolution were as follows: 1. contentions concerning the adequacy and consistency of plans provided by the Applicant, which were resolved by the experts' agreement that: 1. the Applicant's amended plans for demolition works and alterations, provided the required information and consistency in plans to resolve the contention; and 2. the elements of existing structures constructed without consent and which the experts described as minor, should be the subject of a Building Information Certificate prior to the issue of a construction certificate under any development consent that might be granted by the Court, should the Applicant's appeal be upheld. 1. planning contentions concerning proposed alterations of the existing dwelling on the Subject Site, proposed car parking arrangements, landscaping matters, the Applicant's concept design for a dwelling on proposed lot 2, level changes proposed in relation to finished floor levels, and the width of the access driveway to proposed lot 2. These were resolved by the agreement of the expert planners as follows: 1. the contention concerning the proposed alterations of the existing dwelling on the Subject Site were resolved by the Applicant's amended plans, and the experts' proposed conditions of consent in relation to water and wastewater connections; 2. the contention concerning proposed car parking arrangements were resolved by the Applicant's amended plans. The experts also agreed that: 1. the Proposed Development satisfied the provisions of section 5A.3.1 of FDCP concerning car parking rates; and 2. there was sufficient space to manoeuvre vehicles on proposed lot 2 and the Applicant would agree to the provision of an easement granting a right of way benefitting proposed lot over the Applicant's proposed access handle to that lot; 1. the contention concerning the Applicant's concept design for a dwelling on proposed lot 2, in relation to which the experts agreed that: 1. any future dwelling on proposed lot 2 would be the subject of a future development application; 2. no consent is sought by the Applicant for that dwelling in the current appeal; and 3. the experts were satisfied in relation to the design of the concept design and the availability of modifications that might be implemented to mitigate any potential impacts arising from the design; 1. the contention concerning landscaping matters was resolved through the Applicant's amended plans that provide for adequate open space and mitigation of potential amenity impacts; 2. the changes in finished floor levels do not give rise to any loss of amenity; and 3. a contention concerning the width of the access driveway to proposed lot 2 could be resolved by the Applicant's amended plans, other than in relation to the impacts of the proposed driveway's location adjacent to the dwelling proposed for retention on proposed lot 1.
3. The Parties further agreed that the remaining contentions in the appeal concerned: 1. a planning contention concerning potential amenity impacts arising from the Applicant's proposed non-compliance with the 900mm side setback control of 900mm required under the provisions of Part 5A of FDCP. The Respondent said that the potential amenity impacts would arise though the movement of vehicles past, and in close proximity to, that side of the dwelling proposed for retention on lot 1 because the Applicant has proposed: 1. a zero setback to the side boundary to the north of proposed lot 1, as measured from the proposed, modified gable of the existing dwelling to be retained on that lot; or 2. a small, and undimensioned, setback to the side boundary to the north of proposed lot 1 as measured from the retained side wall of the existing dwelling. The Applicant's expert planner, Mr Bewshaw said that, on the basis of discussion he had undertaken with the Applicant's Architect, the scale of that side setback would be 140mm; and 1. a contention concerning flooding, which the Parties agree was the principal contention in the appeal, and in relation to which the Respondent contended that the Proposed Development should be refused because: 1. it did not comply with the controls in Part 11 of FDCP and did not achieve the objectives of those controls; and 2. it did not satisfy the provisions of cl 6.3 of FLEP.
4. The Court was assisted in its considerations of these contentions by the evidence of the following experts, who had prepared joint expert reports and who, in the case of the planners and flooding experts, also provided oral evidence during the hearing: 1. the expert planners, Mr Brett Daintry, for the Applicant, and Mr Glen Apps, for the Respondent; 2. the expert flooding engineers, Mr Stephen Gray, for the Applicant and Mr Drew Bewsher for the Respondent; and 3. the building surveying experts, Mr Brett Daintry, for the Applicant, and Mr Grant Milienou, for the Respondent.

Environmental Planning and Assessment Act 1979

1. Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. …

Fairfield Local Environmental Plan 2013

1. The following provisions of FLEP are of relevance in this appeal: 1. clause 2.3 concerning zone objectives and land use table, and in relation to which: 1. clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and 2. the Subject Site is zoned R2 Low Density Residential, the objectives of which are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. clause 4.1, concerning the minimum lot size for subdivision of land and which provides: (1) The objectives of this clause are as follows - (a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area, (b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties, (c) to ensure that subdivision does not exacerbate land fragmentation, (d) to foster viable agricultural undertakings. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (3A) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size. (4) This clause does not apply in relation to the subdivision of any land - (a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or (b) by any kind of subdivision under the Community Land Development Act 1989 1. Clause 6.3 (repealed from 14 July 2021) concerning the flood planning which provides: (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 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) will not 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) 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, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause, flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

Fairfield City-wide Development Control Plan

1. The Proposed Development is subject to the provisions of the FDCP, and in particular: 1. Chapter 5A concerning dwelling houses, including: 1. Section 5A.1.1.1 in relation to lot sizes which has the following objectives and controls of relevance in this appeal: "Objectives a) Ensure privacy is maximised for neighbours of the development and those who occupy the single dwelling. b) Provide space for private recreation purposes. c) Provide space for landscaping. Controls a) The minimum lot size for the proposed construction of a detached single dwelling house is 450m² (access handles are excluded from this site area) within the Residential R2 zone." 1. Section 5.A.2.3 concerning setbacks which has the following objectives and controls of relevance in this appeal: "Objectives … e) Lessen the impact of development on battle-axe lots on the surrounding neighbouring properties. f) Protect the privacy and solar access of adjacent properties. Controls a) Side setbacks must be a minimum of 900mm." 1. Chapter 11 concerning flood risk management, which: 1. under the provisions of section 11.5 notes that: "The criteria for determining applications for proposals potentially affected by flooding are structured in recognition that different controls are applicable to different land uses and levels of potential flood inundation and hazard. The procedure to determine what controls apply to proposed development involves: a) firstly, identifying the land use category of the development (from Schedule 2 at the end of Chapter 11); b) secondly, determine which floodplain and which part of that floodplain the land is located within (refer to Clause 11.7 and relevant flood risk mapping); and c) then apply the controls outlined under Clause 11.8." 1. defines the flood risk precincts on the Subject Site within section 11.6 as follows: "High Flood Risk Precinct - This has been defined as the area of land below the 100 year flood that is either subject to a high hydraulic hazard or where there are significant evacuation difficulties. Note: The high flood risk precinct is where high flood damages, potential risk to life or evacuation problems would be anticipated, or development would significantly and adversely effect flood behaviour. Most development should be restricted in this precinct. In this precinct, there would be a significant risk of flood damages without compliance with flood related building and planning controls Medium Flood Risk Precinct - This has been defined as land below the 100 year flood that is not in a High Flood Risk Precinct. This is land that is not subject to a high hydraulic hazard or where there are no significant evacuation difficulties Note: In this precinct there would still be a significant risk of flood damage, but these damages can be minimised by the application of appropriate development controls." 1. includes within section 11.8 the following objectives and performance criteria of relevance in this appeal: "Objectives d) To restrict any intensification of the use of High Flood Risk Precinct or land within the boundary of significant flow, and wherever appropriate and possible, allow for their conversion to natural waterway corridors. … f) To minimise the risk to life by ensuring the provision of appropriate access from areas affected by flooding up to extreme events. g) To minimise the damage to property, including motor vehicles, arising from flooding h) To ensure that proposed development does not expose existing development to increased risks associated with flooding Performance Criteria a) The proposed development should not result in any increased risk to human life. … c) The proposal should only be permitted where effective warning time and reliable access is available for evacuation from an area potentially affected by floods to an area free of risk from flooding. Evacuation should be consistent with any relevant flood evacuation strategy. … e) Motor vehicles are able to be relocated, undamaged, to an area with substantially less risk from flooding, within effective warning time. f) Procedures would be in place, if necessary, (such as warning systems, signage or evacuation drills) so that people are aware of the need to evacuate and relocate motor vehicles during a flood and are capable of identifying an appropriate evacuation route. g) Development should not result in significant impacts upon the amenity of an area by way of unacceptable overshadowing of adjoining properties, privacy impacts (eg. by unsympathetic house-raising) or by being incompatible with the streetscape or character of the locality." 1. includes Schedule 2 in relation to development categories including subdivision and residential land uses, and which: 1. notes that subdivision of land that involves the creation of new allotments, with potential for further development; and 2. notes that residential land use includes dwelling houses; 1. includes Schedule 6 in relation to development on floodplains other than Georges River and Cabramatta Creek, which: 1. identifies that both subdivision of land and residential land use are unsuitable land uses on land within a high flood risk precinct; and 2. provides specific controls for subdivision of land and residential land uses on land within a medium flood risk precinct.

Contentions

1. The remaining contentions in the appeal were identified above (at [13]), and for convenience will be referred to as the planning contention (see above at [13(1)]) and the flooding contention (see above at [13(2)]).

The planning contention

1. The specifics of the planning contention were provided above (at [13(1)]) and relate to the non-compliance, following subdivision, of the existing dwelling, proposed for retention on lot 1, with the side setback control in Part 5A section 5A.2.3.2 of FDCP that requires a minimum 900mm side setback.
2. As noted, the Applicant's planner noted that, notwithstanding the zero setback from the gable of the dwelling to the side boundary of proposed lot 1, the dwelling might provide a small un-dimensioned setback, said by the planners to be around 140mm, as measured from the side wall of the retained dwelling (see above at [13(1)(b)]).
3. The Respondent said that the non-compliant side setback that would be created though the proposed subdivision of the Subject Site, would give rise to potential amenity impacts for present and future residents of the dwelling, as a consequence of vehicular and pedestrian movements between the street and proposed lot 2 along the proposed access handle to that lot.
4. The Applicant contended that any impacts that arose though use of the access handle to proposed lot 2 would be minor and acceptable.
5. The provisions of s 4.15(3A)(b) of the EP&A Act require that, in relation to the present appeal, if the Proposed Development does not comply with the side setback controls in the FDCP, the Court should be flexible in applying those controls and allow reasonable alternative solutions that achieve the objects of the controls.
6. In oral evidence, and in response to a question from the Applicant, Mr Apps, for the Respondent, agreed that the frequency of pedestrian and vehicular movement along the access handle between the road and proposed lot 2 would be low and: 1. the non-compliance of the side setback to the retained dwelling on lot 1, as well as to the dwelling on the adjacent lot to the north of the Subject Site, would not give rise to any privacy and solar access impacts, in satisfaction of objective (f) of the control in Section 5.A.2.3 of FDCP; and 2. given the lack of amenity impacts arising from the non-compliance, the Proposed Development would also satisfy objective 90 of the control as the potential impacts of the proposed Development on the surrounding neighbouring properties would be low.
7. As a consequence, and based on the evidence of the planners, I am satisfied that the Applicant's proposed non-compliance with the side setback control in FDCP is acceptable as the Proposed Development would achieve the objectives of the control in relation to side setbacks.

The flooding contention

1. As noted above (at [5(1)]), the Subject Site is located between two waterways, Prospect Creek and Long Creek, and is flood affected. The Parties' expert flooding engineers (see above at [14(2)]) had agreed within their joint expert report, tendered as evidence at the hearing that the Subject Site has a flood planning level (FPL) of 7.0m Australian Height Datum (AHD), based on a one in 100 year 6.5m annual exceedance probability (AEP) plus 0.5m, and that the probable maximum flood (PMF) level is 10.7m AHD.
2. Also, as previously noted, the whole of the Subject Site is below the flood planning level, and proposed Lot 2 is mapped as being within a high flood risk precinct on the Prospect Creek Floodplain Map.
3. The Respondent had contended that the proposed subdivision of the Subject Site should not be approved because: 1. it was in breach of the relevant controls within Chapter 11 of FDCP, and did not achieve the objectives of those controls; 2. it was inconsistent with the objectives and provisions of cl 6.3 of FLEP.
4. I will address first the matters relating to the Proposed Development's responsiveness to the provisions of Chapter 11 of FDCP, before then considering its responsiveness to the provision of cl 6.3 of FLEP.

Responsiveness of the Proposed Development with the provisions of Chapter 11 of FDCP

1. The provisions of Chapter 11 of FDCP were provided above (at [17(2)]).
2. Schedule 2 of Chapter 11 identifies certain land use categories for the purpose of applying controls in relation to flood risk management within Chapter 11, and this includes subdivision and residential land uses. Schedule 2 also notes that: 1. subdivision of land that involves the creation of new allotments, with potential for further development; and 2. residential land use includes dwelling houses.
3. The Respondent stated that Schedule 6 of Chapter 11 of FDCP, identifies that the subdivision of land, including the creation of a new allotment for further development, and residential land use, including for a dwelling house, are unsuitable land uses within a high flood risk precinct.
4. The Respondent further contended that that Proposed Development, and in particular the creation of proposed Lot 2, would not meet the relevant performance criteria, and would not achieve the relevant objectives of Chapter 11 of FDCP.
5. The relevant performance criteria and objectives applicable to the Proposed Development are provided within section 11.8 of FDCP and were identified above (at [17(2)(c)]).
6. The Applicant submitted that while part of the Subject Site was mapped as a high risk flood precinct, the subdivision as proposed within its development application, and which was supported by its flood investigation report, was acceptable notwithstanding the provisions of Chapter 11 of FDCP.
7. During the hearing, the Parties' expert flooding engineers provided the following responses to questions put before them by the Parties: 1. Mr Gray, for the Applicant stated that: 1. he accepted that Schedule 6 of Chapter 11 of FDCP provided that high flood risk precincts were unsuitable for certain land category uses including subdivision and residential use; 2. he accepted that land within a high flood risk precinct, such as proposed Lot 2, was below the one in 100 year flood level, and which had significant evacuation difficulties or high hydraulic hazard; 3. he acknowledged that at the rear of the conceptual location for a dwelling on proposed Lot 2, the water depth during a one in 100 year flood would be around 1.4m to 1.5m deep, noting that the land on proposed lot 2 increases in depth from east to west; 4. he agreed that during a one in 100 year flood the location of the car parking areas associated with proposed Lot 2 would be covered by 0.9m of water, and that at that depth vehicles are likely to float; 5. he agreed that, based on data published in the Australian Rainfall and Runoff: A guide to flood estimation (ARR), and included within the joint report prepared with Mr Brewsher, at a water depth of 500mm, equivalent to a hazard level identified as H3, the water depth was unsafe for vehicles, children, and the elderly and vehicles would float at that depth; 6. if vehicles were to be moved to a safer location, this should be done in line with recommendations of the NSW State Emergency Service (SES), although he had not sought more detailed advice from the SES in relation to how this would be done; 7. in his opinion, there would be a warning time of around 12 hours available to alert residents to an impending flood risk; 8. he agreed that in a major flood event power supply was unreliable; 9. if a major flood were to occur in the area, it would impact on around 350 homes, based on a 1999 flood study that estimated that 326 dwellings would be impacted; 10. he agreed that subdivision of land was contrary to objective (d) of section 11.8 of FDCP; 11. he agreed that: 1. objective (f) of section 11.8 applied to an extreme event and this referred to the PMF event; 2. because waters at levels above 0.5m was assessed under ARR to be unsafe for vehicles, children and the elderly, in the event of a major flood beyond the level of a one in 100 year flood, it was likely that there would be no access to the Subject Site, and so residents of proposed Lot 2 would need to shelter in place; 3. as the finished floor level of the concept dwelling on proposed Lot 2 would be at 10.1m AHD and the PMF was projected to be at 10.7 AHD, residents would need to shelter in 0.6m of water during the PMF event; 4. he agreed that at the PMF the Proposed Development would be unsafe for vehicles, children, and the elderly; 1. he agreed that objective (g) of section 11.8 of FDCP was also not met by the Proposed Development, as up to three vehicles associated with proposed Lot 2 might be parked on the Subject Site, and might float away in a flood contrary to an objective to minimise damage to property during a flood, although he said such damage might be avoided if vehicles were evacuated; 2. he agreed that in the event of a flood in the area of the Subject Site, and when a flood was also impacting on the Georges River, there would be an elevated demand for the resources of the local SES; 3. he agreed that private flood emergency response plans, such as proposed by the Applicant and as provided within an Appendix to the expert flooding engineers joint report, were: 1. contrary to the recommendations of section N7.1 of the Flood Development Manual published by the NSW Department of Infrastructure, Planning and Natural Resources, concerning the limitations of private flood plans; and 2. noted as being opposed by the SES as a basis for flood impact mitigation through the imposition of conditions of consent; 1. Mr Drew Bewsher for the Respondent, said that; 1. he agreed with Mr Grey's assessment of the number of dwellings that would be impacted by a major flood; 2. he agreed that in periods of major flooding on the Subject Site, the velocity of flood waters was low; 3. he acknowledged that the Applicant was not seeking consent for a dwelling as part of the Proposed Development; 4. if the access road into the Subject Site were approved subject to a condition requiring it to be elevated: 1. this could only achieve an access road level equivalent to Ravenswood Street; 2. in a one in 100 year flood this would still have 0.48m of water coverage which was at a depth at which vehicles could not use the road, and 3. it did not solve the issue of access to and from the Subject Site during a major flood event, as at that level the water depth was unsafe for vehicles; 1. in the event of a major flood event it was difficult to anticipate how people would react, and it was his opinion that: 1. the SES takes time to recognise a flood warning and to react to such warnings; 2. the SES has a policy of not driving though flood waters; 3. it was inevitable that in the PMF event some residents would be unable to evacuate and would need to shelter in place; 4. he was not aware of any Council that would approve a PMF refuge level in a dwelling that was below the PMF flood level; 1. the Applicant's proposed flood emergency response plan, as provided as an Appendix to the joint report of the expert flooding engineers, could not be made safe through "tweaking".
8. I have considered the evidence of the expert flooding engineers and the submissions of the Parties, and I have concluded that the Proposed Development should not be approved because: 1. as indicated within Schedule 6 of Chapter 11 of FDCP, the subdivision of land and residential use for a dwelling are not suitable land use categories to be undertaken in a high flood risk precinct, which is the flood risk of proposed Lot 2 within the Subject Site; and 2. the Proposed Development does not satisfy the following controls in 1. control (a), which requires that "the Proposed Development should not result in any increased risk to human life." I am satisfied that the Proposed Development involves the intensification of the residential use of high flood risk precinct land on the Subject Site and if approved would increase the risk to human life; 2. control (c), which requires that "the Proposed Development should only be permitted where effective warning time and reliable access is available for evacuation from an area potentially affected by floods, to an area free of risk from flooding." As confirmed by the experts, and in particular Mr Grey (above at [36(1)(b)]), land within a high flood risk precinct, such as proposed Lot 2, is located below the one in 100 year flood level, and by definition (see above at [17(2)(b)]), has significant evacuation difficulties, including that water levels would be unsafe for children and the elderly, as well as vehicles, which, in my assessment is in contravention of control (c); 3. control (e), which requires that "motor vehicles are able to be relocated undamaged, to an area with substantially less risk from flooding, within effective warning time." Consistent with the evidence of the experts, I am not satisfied that it would be possible to relocate vehicles, undamaged, to an area with substantially less risk from flooding, in the event of a major flood event, noting the flood water depths that would affect proposed lot 2 in such circumstances; 4. control (f), which requires that procedures should be in place, if necessary, (such as warning systems, signage or evacuation drills) so that people are aware of the need to evacuate and relocate motor vehicles during a flood and are capable of identifying an appropriate evacuation route, in relation to which: 1. the Applicant relies on proposed flood emergency response plan which is contrary to good practice and the recommendations of the SES as documented within the Flood Development Manual; 2. the Applicant has not proposed a specific warning system but relies on notification of flood warnings via the SES or electronic notification in circumstances where there is no guarantee of a plan for SES warnings in the area, and as conceded by Mr Grey, power supply cannot be guaranteed during a major flood event 1. the Proposed Development does not achieve the following objectives in section 11.8 of FDCP: 1. objective (d) which aims to restrict any intensification of the use of High Flood Risk Precinct or land within the boundary of significant flow, and wherever appropriate and possible, allow for their conversion to natural waterway corridors, and in relation to which: 1. as agreed by Mr Gray, the Proposed Development seeks consent for the intensification of residential use within a high flood risk precinct which is contrary to the objective; and 2. there is no proposal for the conversion of some portion of the Subject Site to natural waterway corridors, but this outcome is not one to which the Subject Site, being land zoned R2, would be suited; 1. objective (f), which aims to minimise the risk to life by ensuring the provision of appropriate access from areas affected by flooding up to extreme events, in relation to which: 1. the Proposed Development does not ensure access to and from the Subject Site, and in particular proposed Lot 2, during flooding up to extreme events such as the PMF; 2. the Applicant's Proposed Development may require residents to shelter in place during the PMF event and in circumstances where the finished upper floor level of the Applicant's concept dwelling is below the PMF level by 0.6m. In such circumstances, residents would need to shelter in water that is 0.6 deep which, in my assessment, is not acceptable; 1. objective (g) which aims to minimise the damage to property, including motor vehicles, arising from flooding. In relation to this I am satisfied that the water depth on proposed Lot 2 during a major flood event, such as the one in 100 year flood, would be greater than 0.5m which would be sufficient for vehicles on proposed Lot 2 to float away and be damaged; 1. the Proposed Development does not achieve the above objectives of section 11.8 of FDCP, and so does not represent a feasible alternative that would merit the application of flexibility in relation to its non-compliance with the controls in that section as provided for under s 4.15(3A)(b) of the EP&A Act.
9. As the Proposed Development does not satisfy the controls in Part 11.8 of FDCP, and it does not achieve the objectives of those controls, the Applicant's Proposed Development should not be approved, and its development application should be determined by way of refusal.

Is the Proposed Development inconsistent with the objectives and provisions of cl 6.3 of FLEP?

1. The provisions of cl 6.3 of FLEP concerning flood management were provided above (at [16(3)]), and the Parties were of a common view that the Proposed Development should be consistent with those provisions, notwithstanding recent legislative changes that sought to amend the standard instrument with respect to flood planning.
2. However, on 14 July 2021, the following two amendments were made to the provisions of FLEP concerning flood planning: 1. State Environmental Planning Policy Amendment (Flood Planning) 2021 (the Flood Planning SEPP) commenced and under the provisions of Schedule 1 to the Flood Planning SEPP cl 6.3 of FLEP was repealed; and 2. the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (hereafter Order 2021) commenced and by the effect of Schedule 1 amended FLEP by inserting a new cl 5.21 in the following terms: 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.
3. Notwithstanding these amendments, the provisions of cl 8(1) of Standard Instrument (Local Environmental Plans) Order 2006 require that amendments made by an amending order such as Order 2021, do not apply to an application that was made, but not determined, before the commencement of the Order 2021.
4. As a consequence, the new cl 5.21 in FLEP does not apply to the Applicant's development application, which was lodged, but not determined, before 14 July 2021.
5. However, the Flood Planning SEPP repealed cl 6.3 of FLEP on 14 July 2021 and did not include a savings provision with respect to development applications lodged before 14 July 2021 and not determined by that date.
6. Given these circumstances, the Respondent submitted that it may be that neither the provisions of the former, and now repealed, cl 6.3 of FLEP, nor the provisions of the new cl 5.21 intended to replace cl 6.3, may apply to the determination of the Applicant's development application in this appeal.
7. Noting that this outcome was unlikely to reflect the intent of the statutory amendments made to local environmental plans, including FLEP, through the provisions of Order 2021 and the Flood Planning SEPP, the Parties submitted that: 1. the provisions of cl 6.3 of FLEP should apply to the Proposed Development because Schedule 1 of the Flood Planning SEPP is entitled "Amendments consequent on the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021", and as so the provisions of cl 6.3 of FLEP should only be considered to have been repealed following the provisions of the new cl 5.21 taking effect in relation to the determination of any development application; and 2. notwithstanding this, if the Court determined that cl 6.3 of FLEP did not formally apply to the determination of the Applicant's development application in this appeal, then its provisions might still be considered by the Court as a matter of public interest.
8. This situation has been considered by my learned colleague Bish C in giving effect to an agreement reached by Parties under s 34 of the LEC Act in the matter of IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 at [28] - [32] (IDA).
9. In IDA, the Commissioner observed (at [30] - [32]) as follows: "[30] However, in submission to the Court, the parties agree that the DA is saved from consideration of the new provision, cl 5.21 in the WLEP, by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006, below: 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. [31] Further to this, the parties agree that Order 2021 or any other legal instrument, does not require the consideration of the now repealed cl 7.2 of the WLEP, because it was not identified in Order 2021. The parties submit that cl 1.8A of the WLEP does not 'save' cl 7.2 for the consideration of the DA, based on the decision of McColl JA, Basten JA and Payne JA in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189. [32] I adopt the agreed position of the parties in their (written and oral) submission, which is the basis of their agreement…."
10. Consistent with the position adopted by Bish C in IDA, I am satisfied that the implications of the provisions of the Flood Planning SEPP and Order 2021 is that neither the former cl 6.3, nor the new cl 5.21 of FLEP, require consideration in determining the Applicant's development application in the current appeal.
11. Notwithstanding this conclusion, I also accept the submission of the Parties that I could consider the provisions of former cl 6.3 of FLEP as a matter of public interest, as I agree with the Respondent (see above at [45]) that it was unlikely that the omission of flood planning consideration in determining the outcomes of development applications on flood prone land was the intent of the statutory amendments made to local environmental plans, including FLEP, through the Flood Planning SEPP and Order 2021.
12. However, as I have already concluded that the Applicant's development application should not be approved (see above at [38]) for reasons related to its inconsistency with the controls of Chapter 11 of FDCP and the non-achievement of the objectives of those controls, there is no requirement for me to consider the provisions of the former cl 6.3 of FLEP, and any such consideration would be otiose.
13. Further, and while I do not rely on a public interest assessment of the provisions of the former cl 6.3 of FLEP, in relation to the Proposed Development in arriving at the conclusion not to approve the proposed Development, I am of the view that any such assessment of the provisions of cl 6.3 of FLEP is only likely to further support my reasons for refusal of the application.

Conclusions

1. On the basis of my assessment and conclusions above in this judgment, I am satisfied that the Proposed Development should not be approved because: 1. it does not satisfy the relevant controls of section 11.8 of FDCP and does not achieve the objectives of those controls; 2. it does not provide a feasible alternative to the controls and does not merit the application of flexibility in the application of the controls pursuant to the provisions of s 4.15(3A)(b) of the EP&A Act; and 3. approval of the Proposed Development is not in the public interest.

Orders

1. The Court orders that: 1. The appeal is dismissed; 2. Development application 492.1/2019 seeking consent for subdivision of one lot into two lots, associated internal fencing, landscape and stormwater works at 5 Ravenswood Street, Canley Vale, is determined by way of refusal; 3. The exhibits are returned, with the exception of Exhibits A, B, C and 1. …………………………..

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