Salic v City of Parramatta Council

The site and the locality

1. The site is legally identified as Lot 7 Section 31 DP 758788, and is a regular shaped mid-block allotment with an area of 910.42m². The site has a frontage of 20.115 metres to Grose Street to the south, and is traversed by a 5.03 wide drainage easement. The drainage easement contains a stormwater culvert that is covered by a concrete slab. Across the west boundary, on the other side of the dividing fence, this culvert becomes an open channel. A survey of the site, showing the location of the drainage easement, is in Figure 1.
2. The locality is characterised by low density residential development. Adjoining the site to the east and west are single storey dwelling houses. The locality is undergoing a growth in its built form towards two-storey dwelling houses and dual occupancies, with recently constructed dual occupancy developments located to the west at 82 Grose Street, and to the north within the same block, at 55 Ross Street. A large community recreation park known as Doyle Grounds is located to the north east of the block that the site is located in, which contains play equipment.

The applicable planning controls

1. The site is within R2 Low Density Residential zone under the provisions of Parramatta Local Environmental Plan 2011 (PLEP 2011). Development for the purpose of a dual occupancy is permissible with consent in the R2 Low Density Residential Zone.
2. Clause 2.3(2) of the PLEP 2011 requires the Court, in exercising the functions of the consent authority, to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives 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. • To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.
3. Pursuant to cl 4.3 of the PLEP 2011, the height development standard applicable to the site is 9m. Pursuant to cl 4.4 of the PLEP 2011, the floor space ratio (FSR) development standard that is applicable to the site is 0.5:1. The proposed development complies with both the height and FSR development standards.
4. Clause 6.3 of the PLEP 2011 applies to land at or below the flood planning level, and prevents development consent from being granted unless the Court, exercising the functions of the consent authority, is satisfied of certain matters. It provides as follows: 6.3 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 land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (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.
5. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the site. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.
6. The State Environmental Planning Policy No 55 - Remediation of Land also applies. As required by cl 7(1), consideration has been given as to whether the subject site is contaminated. As there are no past uses on the site that may have caused contamination, the site is suitable for the proposed development.
7. The Parramatta Development Control Plan 2011 applies to the site. Part 2 concerns site planning, and Part 2.4.2 deals with water management. Part 2.4.2.1 includes the following relevant objectives and design principles: "O.4 To allow development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls and provided that the potential consequences that could still arise from flooding remain acceptable. O.5 To prevent any intensification of the development and use of High Flood Risk Precinct or floodways, and wherever appropriate and feasible, allow for their conversion to natural waterway corridors. O.6 To ensure that the proposed development does not expose existing development to increased risks associated with flooding. O.7 To ensure building design and location address flood hazard and do not result in adverse flood impact and unreasonable impacts upon the amenity or ecology of an area. O.8 To minimise the risk to life by ensuring the provision of appropriate access from areas affected by flooding up to extreme events. … Design principles P.1 New development should not result in any increased risk to human life. … P.3 New development should only be permitted where effective warning time and reliable access is available for the evacuation of an area potentially affected by floods to an area free of risk from flooding. Evacuation should be consistent with any relevant flood evacuation strategy where in existence. … P.6 New developments must provide an evacuation plan detailing procedures that would be in place for an emergency (such as warning systems, signage or evacuation drills)."
8. Table 2.4.2.1.2 provides a table entitled "Flood Plain Matrix Planning and Development Controls", which sets out the type of development that can be pursued and applicable controls, which vary depending on whether the site is in a "High Flood Risk", "Medium Flood Risk" or "Low Flood Risk" precinct. Relevantly, residential development such as what is proposed is considered an unsuitable land use in the "High Flood Risk" precinct. The exception to this is concessional development, which is confined to additions to existing dwellings. Residential development is considered suitable for land in the Medium Flood Risk precinct, subject to the specified applicable controls that are then set out in Table 2.4.2.1.3.
9. The proposed development complies with all of the development controls that are applicable to residential development in the Medium Flood Risk precinct. This is not disputed by the Council. However, the Council's position is that the site is in the High Flood Risk precinct. The Design Controls that are set out in Part 2.4 above the two tables states "refer to Catchment Management Unit of Council for the Flood Risk Precincts and relevant flood risk mapping". The flood mapping of the site is considered further below.
10. Part 3.3.2 of the PDCP 2011 sets out the objectives, design principles and design controls with respect to private open space for dual occupancy developments. The first design control requires that, for dual occupancies, "A minimum of 100m2 of private open space be provided at ground level, with minimum dimensions of 6m". Each of the rear yards for the dwellings that form part of the dual occupancy comply with this minimum area control. Nevertheless, the Council contends that the rear yards do not meet the design principles in Part 3.3.2, which are set out and considered further below.

Expert evidence

1. Mr Stephen Branch, a civil engineer engaged by Mrs Salic, and Mr Paul Clark, an engineer employed by the Council, gave expert opinion evidence concerning the flooding and stormwater management on the site.
2. Mr Branch's evidence is that less than 50% of the site is classified as high hazard, and in oral evidence he estimated that 29% of the site is classified as high hazard and that only minor aspects of the building footprint were located within the areas mapped as high hazard. He points out that the area of occupation and the egress route is above the 1 in 100-year flood level, and measures to manage risk to life from flood have been incorporated into the development. He therefore opines that the proposed development does not pose a risk to the new occupants.
3. Mr Clark instead opines that the proposed development is not compatible with the land's flood hazard. He considers that the dual occupancy doubles the number of occupants on the site, which increases the risk to life to those occupants. In oral evidence, Mr Clark agreed that the egress to Grose Street was above the 1 in 100-year flood level, and that the risk to life was confined to persons using the rear yard.
4. Expert town planning evidence was given by Mr Brad Delapierre, a town planner engaged by the applicant and Mr Aaron Essenhigh, a town planner employed by the Council. Their evidence concerned the adequacy of the private open space provided for each dwelling that forms part of the dual occupancy. The private open space is primarily provided in a rear yard for each dwelling of the dual occupancy. Whereas Mr Essenhigh considers that the rear yards do not meet the design principles for private open space due to part of the area containing the stormwater culvert and being mapped as high flood hazard, Mr Delapierre opines that the rear yards have a northerly orientation and can be used for a variety of passive and active recreational activities. Their evidence is considered further below.

The flood mapping

1. The site is affected by flooding in the upper reaches of Brickfield Creek within the Upper Parramatta River catchment, which flows to the west through the site in the culvert. The flood flows on the site are caused by overland flow arising from rainfall in the local catchment.
2. The Council's flood mapping shows that most of the site is below the 1 in 100-year flood level, which would reach a depth of nearly 1.1m in the high flood risk area of the property. Figure 2 is an extract from the Council's flood map, and Figure 3 is an outline of where the depth of flooding is greater than 1m in a 1 in 100-year flood event, based on the surveyed levels of the site and a 1 in 100-year flood level of RL 10.3.
3. Figure 4 is an extract of the Council's flood hazard mapping, which shows areas of high and low flood hazard.
4. The definition of the three Flood Risk Precincts for the Upper Parramatta River catchment are contained in Section 5.2.3 of the Upper Parramatta River Catchment Floodplain Risk Management Study dated 3 April 2003, and are as follows: "► High Flood Risk Precinct - This has been defined as generally the area of land below the 100 year flood level subject to a high hydraulic hazard (in accordance with the provisional criteria outlined in the Floodplain Management Manual). The High Flood Risk Precinct is where high flood damages, potential risk to life, or evacuation problems would be anticipated. Most development should be restricted in this precinct. In this precinct, it would be difficult to achieve a substantial reduction in flood damages or to ensure safe evacuation with reasonable flood-related building and planning controls. ► Medium Flood Risk Precinct- This has been defined as generally land below the 100 year flood level subject to low hydraulic hazard in a 100 year flood. In this precinct there would still be a significant risk of flood damage or risk to life, but these could be minimised with the application of appropriate development controls. ► Low Flood Risk Precinct-This has been defined as all other land within the floodplain, namely above the 100 year flood level and below the level of the PMF. The Low Flood Risk Precinct would be where risk of damages would be low for most land uses and so it the application of compulsory flood-related development controls are not likely to be cost effective."
5. As such, areas that are low hydraulic flood hazard can fall within either the Medium Flood Risk Precinct or the Low Flood Risk Precinct depending on the site levels. Figure 5 shows these flood risk precincts, as mapped by the Council. This shows that the south-western corner of the property is located in a Low Flood Risk Precinct, and the remainder of the property in a High or Medium Flood Risk Precinct.
6. Figure 6 shows the siting of an earlier iteration of the proposed development in relation to the flood risk precincts. The siting of the proposed development is similar.
7. The evidence of Mr Branch is that the flood hazard map overstates the area of the site classified as high hazard for two reasons. Firstly, using the cross sections from the Council's own modelling data and using the files from the model provided by the Council, his evidence is that some of the areas of the site shown on the map as high hazard are actually in the medium hazard precinct. This is shown in Figures 16 to 19 of Mr Branch's Flood Study Assessment, which identifies points along the cross-section and their rating as medium or high hazard precinct. Secondly, the ground elevations used in the Council's model along the chainage (at 340.5, shown in Figure 2) are different to the actual surveyed levels of the site. This means that on the north portion of the site the flood water depth predicted by the model is reduced (therefore reducing the extent of high hazard on the site), but that the centre/west portion of the site the flood water depth predicted by the model is increased without changing the high risk hazard extent as this area is already classified as high risk hazard. His evidence is also that the actual levels are different to the LIDAR data obtained from the Elvis platform and the summary of levels provided by the Council. The LIDAR survey data indicates that the stormwater channel extends across part of the site, which is inconsistent with the actual conditions of the site where the stormwater is within a concrete covered culvert.
8. Further, the flood mapping shows a "blob" where a small area of High Flood Risk Precinct penetrates towards the front boundary of the site beyond the natural alignment of the mapping of the precinct. The evidence of Mr Branch is that there is no data to support that this area is in the High Flood Risk Precinct, as it is neither supported by the Council's cross-sections of flood data or by the levels on the site.
9. This evidence is not disputed by Mr Clark, and Mr Clark agrees that there is no data that he is aware of to support the "blob" of High Flood Risk Precinct. Nevertheless, Mr Clark maintains his opinion that most of the site is High Flood Risk Precinct. As indicated above, Mr Branch opines that around 29% of the site is in the High Flood Risk Precinct.

The flood risk

1. The Council contends that the proposed development should be refused on the basis that the site is flood-prone (contention 1).

The Council's position on the flood risk

1. Firstly, the Council submits that the Court could not be satisfied that the proposed development meets the provisions of cl 6.3(3)(a) and (c) of the PLEP 2011. The Council submits that Mrs Salic bears the persuasive burden of satisfying the Court of the matters set out in cl 6.3(3), and that this has not been discharged, particularly in circumstances where Mr Branch has not mapped the extent of the high hazard precinct. As such, the Council submits that the Council's map is of "statutory force" and there is no real alternative that the Court can rely on. In such circumstances, the Council says that the Court cannot be satisfied that the proposed development is "compatible with the flood hazard of the land" in accordance with cl 6.3(3)(a) of the PLEP 2011. It also contends that this hazard ought to take into account projected changes as a result of climate change. In addition, the Council submits that the risk to life from flood is not appropriately managed, contrary to cl 6.3(3)(c) in circumstances where occupants are unable to evacuate from the rear yard in the event of a flood, and may be trapped in the area to the rear of the site that is in the low flood hazard precinct.
2. Secondly, the Council submits that the proposed development is in an area where the increase in intensity and occupants is not suitable. The Council says that this is contrary to the Flood Plain Matrix Planning and Development Controls contained in Table 2.4.2.1.2 of Part 2.4 of the PDCP 2011. That is, the Council says that in circumstances where the site contains land that is within the High Flood Risk Precinct, residential development is an unsuitable land use (unless it falls within concessional residential development, which the proposed development does not). The Council therefore submits that a dual occupancy, which increases the intensity of the development on the site and the number of occupants, and the subdivision of the land, is unsuitable for the site.
3. Thirdly, the Council submits that there is an actual risk to life that is increased by the increased occupancy of the site. That risk to life arises from persons who are unable to evacuate from the rear yards of the dual occupancy in the event of a flood. Specifically, the Council points out that there will be no egress from the rear yards once a flood level is reached that is in between the 1 in 20 and the 1 in 100-flood levels. The Council says that this is contrary to the design principles in Part 2.4.2.1 of the PDCP 2011, which are set out above at [14] and require that new development not result in any increased risk to human life (P1), and ought only be permitted where "effective warning time and reliable access is available for the evacuation of an area potentially affected by floods to an area free of risk from flooding" (P3). The Council says that the evacuation plan is insufficient to enable evacuation from the rear yards and that a flood alarm system is insufficient, contrary to design principle P6. The Council submits that even if the "blob" on the map is an error, the built form is affected by the high hazard flood and the entirety of the stairs to the rear yards fall within the high hazard precinct. The Council's position is, therefore, that the proposed development intensifies development and use of the High Flood Risk Precinct, and does not minimise the risk to life, contrary to the objectives in Part 2.4.2.1 of the PDCP 2011. Accordingly, the Council submits that the objectives of the design principles (set out above at [14]) are not met and that no alternative is offered to achieve them.

The applicant's position that there is no increased flood risk or risk to life

1. Mrs Salic's position is instead that an increased population on the site does not increase the risk in circumstances where the extent of the measures used to safeguard the occupants significantly outweigh and mitigate the risk to that additional population such that it would not be considered an overall increase. Mrs Salic notes that Mr Clark and Mr Branch both agree that the risks have been minimised. Mrs Salic says that the risk identified by the Council concerning occupants in the rear yards is sufficiently ameliorated through the provision of pool type fencing around the rear deck to prevent children accessing the rear yard, and through a flood warning system and evacuation procedure. Indeed, it is submitted on behalf of Mrs Salic that there is a general unlikelihood of future occupants using the rear yard during the storm event such as to create a situation of "increased" risk.
2. Mrs Salic submits that the evidence establishes that the requirements of cl 6.3 of the PLEP 2011 have been met, and that the development application complies with each of the objectives, principles and controls in Part 2.4.2.1 of the PDCP 2011. In circumstances where the proposed building is built substantially within the Medium Flood Risk Precinct, where it complies with all of the relevant development controls for flood mitigation in the Medium Flood Risk Precinct, and where there are appropriate safeguards and conditions to deal with any residual risk in the rear yard, Mrs Salic submits that the requirements in the PLEP 2011 and the PDCP 2011 are met.
3. Further, Mrs Salic submits that cl 6.3 of the PLEP 2011 and Part 2.4.2.1 of the PDCP 2011 ought to be read in a context in which dual occupancy development is permissible in the zone. Whereas, following the Upper Parramatta River Catchment Floodplain Risk Management Study in 2003, the Council could have changed the zoning of the land to prevent its development ahead of the commencement of the PLEP 2011, the land has instead been zoned R2 such that it is considered suitable for dual occupancy development. Mrs Salic relies on the principle in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 that (at [118]), "in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts".

The context of the PLEP 2011 and PDCP 2011 provisions

1. It is important to note that, as set out at [8], the proposed development is permissible in the zone in which the site is located. In accordance with the comments of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council, as quoted in the submissions made on behalf of Mrs Salic, "in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned".
2. However, given the site is below the flood planning level, consent cannot be granted unless the matters in cl 6.3(3) have been satisfied.
3. Further, s 4.15(1) of the EPA Act requires that in determining the development application, the provisions of the PDCP 2011 are required to be considered. The provisions within Part 2.4.2 of the PDCP 2011 are entitled to significant weight, but they cannot be considered a non-discretionary development standard or determinative of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75]). As such, whilst Part 2.4.2 and the matrix in Table 2.4.2.1.2 are a focal point for assessing the acceptability of the proposed development, they cannot operate to mandate or compel the refusal of a permissible form of development. Further, s 4.15(3A)(b) of the EPA Act specifically requires that the Court, in exercising the functions of the consent authority, 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."

The matters required by cl 6.3(3) are met

1. I am satisfied that the proposed development meets each of the matters in cl 6.3(3) of the PLEP 2011.
2. I am satisfied that the proposed development is compatible with the flood hazard of the land, consistent with cl 6.3(3)(a), as it is sited such that the majority of the built form is located in the Medium Flood Risk Precinct and the built form complies with each of the design principles in Table 2.4.2.1.3 in Part 2.4.2 of the PDCP 2011 that apply to residential development in the Medium Flood Risk Precinct. This includes ensuring that the lowest floor level is elevated such that it is 500mm above the 1 in 100-year flood level, providing a route of safe egress above the 1 in 100-year level to Grose Street and then to higher ground, and providing a safe area for "shelter-in-place" for occupants during a flood. I accept the agreed evidence of Mr Branch and Mr Clark that the flood model levels in the Council's flood model provides "more than sufficient allowance for climate change impact on the land's flood hazard".
3. Consistent with cl 6.3(3)(b), I accept the agreed evidence of Mr Branch and Mr Clark that flood behaviour and flood storage will not be significantly adversely affected by the proposed development (see Ex 2 p 6).
4. Further, I accept that the proposed development incorporates measures to manage risk to life from flood, consistent with cl 6.3(3)(c). As agreed by Mr Branch and Mr Clark in their joint expert report (Ex 2 p 6): "The development incorporates the following appropriate measures to manage risk to life from flood: the lowest floor level is 500mm above the 1 % AEP flood level; safe egress is provided out to Grose Street and then to higher ground; the lowest floor level provides a safe area for 'shelter-in-place' by the occupants; the proposed building is of robust construction and will be designed to resist flood flow forces; a Flood Emergency Response Plan has been drafted and will be implemented."
5. I do not accept Mr Clark's position that these measures are only beneficial "for increasing the flood resilience of a single dwelling where site occupancy is not increased". Instead, I consider that these measures effectively manage the risk to life from flood for each of the dwellings that form part of the dual occupancy. Each of the dwellings have separate egress paths from the ground floor of the dwelling, which is 500mm above the 1 in 100-year flood level, to the path along Grose Street, which is at or above the 1 in 100-year flood level and in the Low Flood Risk Precinct.
6. Further, I do not accept the Council's position that the risk to life from flood is not appropriately managed on the basis that occupants are unable to evacuate from the rear yard in the event of a flood. The rear yard is affected by flooding from the local catchment, and it is therefore required to rain heavily in the local catchment for the rear yard to become flooded. The evidence is that this could occur as quickly as over 15min in a flash flood event, but that it would need to be raining quite heavily for it to occur over such a short period of time. Accordingly, a person would have to behave counter-intuitively, by staying outside in heavy rain as it starts to pool on the ground and rise in height, in order for any risk to life in the rear yard to arise. To prevent a risk from arising, however remote, the pool fencing around the rear decks prevents children entering the rear yard, and the flood warning system and the evacuation plan ensures that occupants evacuate from the rear yard into the building in the early stages of a flood. These measures therefore address any risk that might be present to users of the rear yards.
7. Consistent with cl 6.3(3)(d), I accept the agreed evidence of Mr Branch and Mr Clark that the proposed development does not affect the environment and is therefore "not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses" (see Ex 2 p 7).
8. Finally, I accept the agreed evidence of Mr Branch and Mr Clark that the proposed development provides better flood protection to occupants on the site than what is currently in place for occupants of the single dwelling on the site. As such, I accept that, consistent with cl 6.3(3)(e), the proposed development is "not likely to result in unsustainable social and economic costs to the community as a consequence of flooding". I accept the evidence of Mr Branch that there is no unsustainable social and economic cost occasioned by the increased occupancy of the site, as any impact occasioned by the increased occupancy is "more than off-set by the better flood protection provided to the occupants in the proposed development" (Ex 2 p 7).

There is no unacceptable risk

1. I do not accept the submission of the Council that a dual occupancy and the subdivision of the land, is unsuitable for the site on the basis that it increases the intensity of the development on the site and the number of occupants. As set out above, the matrix in Table 2.4.2.1.2 of Part 2.4.2.1 of the PDCP 2011 cannot operate as a prohibition on a form of permissible development on the site. Nevertheless, the matrix and the provisions in Part 2.4.2.1 are a mandatory consideration and a focal point in considering the development application, and provide development controls to ensure that there is no unacceptable impacts of the development, including impacts resulting from risk to life or property.
2. In considering the provisions of Part 2.4.2.1 of the PDCP 2011, I am of the view that they are adequately satisfied and that there is no unacceptable risk to life from a flood event, for the following reasons.
3. Firstly, I accept the evidence of Mr Branch that the site is predominantly mapped in the Medium Flood Risk Precinct. I accept his evidence, which is not contested, that what is shown on the Council's flood precinct map overstates the area of the High Flood Risk Precinct. Accordingly, I consider that the siting of the built form of the dual occupancy is primarily in the Medium Flood Risk Precinct, with only a small portion of the rear of the dwellings and the decks in the High Flood Risk Precinct.
4. Secondly, it is agreed by the Council that the proposed development meets each of the built form controls that apply to development in the Medium Flood Risk Precinct. This includes that the habitable floor levels are equal or greater than the 100-year average recurrence interval (ARI) flood level plus freeboard of 500mm, and there is reliable access for pedestrians and vehicles from the site to an area of refuge above the probable maximum flood. In addition, as set out above, there is a path of egress above the 1 in 100-year level to Grose Street and then to higher ground. Even in the very small portion of the dual occupancy that is located in the High Flood Risk Precinct, the floor level is above the 100-year ARI flood level plus freeboard of 500mm, and there is adequate egress from those areas. Additionally, the proposed building will be designed and built to resist flood flow forces, and the flood storage is not impaired by the proposed development (Ex 2 p 6), which means that the proposed development will not increase flood affectation of other development or properties.
5. Thirdly, I consider that the risk to life from occupants in the rear yards is so remote that it does not warrant refusal of the development application. Given that the flooding that occurs on the site is from the local catchment, a risk of someone being trapped in flood waters in the rear yard (or in the small portion of the rear yard mapped as low flood risk hazard) would arise only if that person behaved counterintuitively and remained in the rear yard in the rain and with water pooling around them. Although it is true that some persons may behave counterintuitively, one of the factors that produces a risk rating is "likelihood", and I consider that the likelihood of a person so doing is sufficiently low as to consider that risk as remote.
6. Fourthly, any risk to life for occupants in the rear yards, however remote, is further reduced by the provision of pool fencing around each of the decks so that young children cannot enter the rear yards unsupervised so as to become trapped in rising floodwaters in the rear yards.
7. Fifthly, this risk is further reduced by the proposed Flood Emergency Response Plan, which has as its first step that "During the onset of heavy rainfall the residents are to visually monitor the flood levels in the rear yard at the west boundary…". That is, the plan is clearly focussed on the flooding in the rear yard from its outset. Further, the second step, is: "When the water level reaches the top of the open stormwater channel beyond the west boundary, or any water begins to pond in the rear yard, residents should be made aware that the property is about to flood and prevent anyone from accessing the rear yard"
8. Finally, Mrs Salic has agreed to the imposition of the following conditions of development consent: "12. The entry to each site and the access to the rear of each new lot must be clearly signed with notices stating "Danger Floodway", or similar, and with appropriate graphic. These signs must be maintained by the landowners in perpetuity." "25. The building must include a flood warning alarm system activated by a float valve. Details must be provided to the satisfaction of the Certifying Authority prior to issue of the Construction Certificate."
9. These conditions further reduce the already remote risk of a person behaving counterintuitively to remain in the rear yard during a local catchment heavy rainfall event, as there will be notice to a person entering the rear yard that there is a risk of flood, and a warning alarm in the actual event of a flood. In contradistinction to the circumstances in Kavanagh v Hawkesbury City Council [2020] NSWLEC 1003, in which the Court found that the evacuation of the site required advanced design of the alarm system, there is nothing particular about the subject site in these proceedings that requires the alarm to be designed ahead of the grant of development consent, and I am satisfied that it is sufficient that it be designed before the issue of a construction certificate.

The design principles in the PDCP 2011 are met

1. For the above reasons, I am satisfied that all of the design principles in the PDCP 2011 are met. Specifically, I consider that the proposed development does not result in any "increased risk to human life" (P1) as the proposed development provides all the necessary safeguards to protect human life and to ensure that there is negligible risk to human life, and to acceptably manage that risk where it arises. The experts agree these measures provide greater protection from risk to life than what is currently in place with the existing dwelling. Accordingly, I accept the submission made on behalf of Mrs Salic that the extent of safeguard and risk management in the proposed development significantly outweighs and mitigates any increased exposure to risk brought about by an increased population on the site.
2. I am also satisfied that there is effective warning time for the evacuation of anyone who is in the dual occupancy or in the rear yards. The warning signs and the commencement of local catchment rainfall are sufficient to ensure that occupants are "on notice" that a flood event could occur, and the Flood Emergency Response Plan ensures that no-one will enter or remain in the rear yards when ponding commences in the rear yard. At that time, there is sufficient time available to proceed up the stairs into the respective dwelling, and, if desired, along the egress from the dwelling to the front of the site. Once the water reaches the trigger line, residents must shelter in place in the dual occupancy. If flooding rose to levels above the flood planning level, residents could move upstairs. This is consistent with design principle P3, that "effective warning time and reliable access is available for the evacuation of an area potentially affected by floods to an area free of risk from flooding". The Emergency Response Plan also achieves design principle P6 by providing an evacuation plan setting out the procedures in place for an emergency.
3. The Council did not raise any of the other design principles in Part 2.4.2.1 of the PDCP 2011 in its submissions on the contention that the site is not suitable for the proposed development. I accept the evidence contained in the report by Steven Molino and attached to the joint report that the remaining design principles are also achieved by the proposed development (see Ex 2 Appendix 4 pp 14-16).
4. Further, I consider that, in meeting those design principles, the objectives set out in Part 2.4.2.1 of the PDCP 2011 are achieved. Consistent with O4, the proposed development has appropriate design and siting to manage the risk associated with its location on flood-prone land, and consistent with O5, the built form is largely contained in the Medium Flood Risk Precinct to prevent intensification and use of the High Flood Risk Precinct. Additionally, the risk to life is minimised in accordance with O8, for all the reasons set out above.

Private open space

1. The Council contends that the rear yards for each dwelling are unacceptable as private open space on the basis that each of the spaces are dissected by the 5m wide culvert and also are located within the high and medium hazard flood zones. The Council argues that this is contrary to the applicable development controls, which are contained within Part 3.3.2 of the PDCP 2011, and at P1 requires private open space to be: "● provided for all dwellings, (with the exception of secondary dwellings, which are able to share the private open space of the principal dwelling); ● directly accessible from the living area of the dwelling and capable of serving as an extension of the dwelling for relaxation, entertainment and recreation; ● designed to ensure privacy of the occupants of adjacent buildings and within the proposed development; ● located so as to maximise solar access; and ● designed to focus on the quality of the space in terms of its outlook, orientation, relationship to the dwelling, size and shape and its enclosure and landscape treatment."
2. Although each of the rear yards complies with the minimum area that is required under the PDCP 2011, the Council says that it is not "capable of serving as an extension of the dwelling for relaxation, entertainment and recreation". The objective that the Council says is advanced by this design principle is as follows: "O2. To ensure that private open space is designed for privacy, solar access, and is well integrated with living areas."
3. The Council relies on the evidence of Mr Essenhigh, who opines that the rear yards are not suitable for "relaxation, entertainment and recreation" for three reasons. The first reason is that the use of the rear yards exposes residents to high hazard flooding conditions, which is unsafe for young children and the elderly, and people with mobility issues, who will find it difficult to evacuate in flood events. The second reason is that the high hazard flooding conditions means that in flood events the area would not be able to provide relaxation, entertainment and recreation, and the space should be available "at all times" (Ex 3 p 8). The third reason proffered as to why the rear yards are not suitable is that if development consent is granted, a condition of consent would require a restriction on title to prevent certain buildings being located in the areas below the 1 in 100-year flood level. Mr Essenhigh opines that this condition will prevent the installation of a wide variety of items necessary for entertainment and recreation, including basketball hoops and inflatable swimming pools. He considers that this would affect the quality and usability of the private open space and its capacity to "serve as an extension of the dwelling for relaxation, entertainment and recreation". The condition of consent, which is agreed by Mrs Salic, is as follows: "64 Prior to the issue of the Occupation Certificate, the applicant must create of a restriction on the title of the subject property. The restriction is to be over the whole of the lot(s) preventing the placement of any building structures, walls, fences, fill or other items, apart from those approved by this Consent, which may impede the 1% AEP (100 year ARI) flood, within the identified zone. The City of Parramatta Council is to be the Authority whose consent is required to release, vary or modify the restriction."

The private open space is acceptable

1. Contrary to the contention raised by the Council, the rear yard of each dwelling is acceptable private open space, and meets the design principles for private open space.
2. Firstly, there is no requirement in the PDCP 2011 that prevents areas within the high hazard flood precinct being used as private open space. Nor do the controls in the PDCP 2011 exclude areas of high flood hazard from the calculation of the area of private open space. As agreed between the parties, both rear yards meet the minimum area requirement for private open space. Further, in accordance with the above findings, I am satisfied that evacuation can occur from the rear yards to their respective dwellings, which are above the flood planning level and also provide separate paths of egress to the street frontage above the 1 in 100-year flood level. Therefore, the mere fact that there are areas of high flood hazard in the rear yards does not render the private open space unacceptable.
3. Secondly, contrary to the opinion of Mr Essenhigh, there is no requirement in the PDCP 2011 for private open space to be usable in all weather. As set out above, the site can potentially flood from heavy rain in the local catchment. I accept evidence of Mr Delapierre that during periods of intense rain it is unlikely that anyone would seek to utilise the rear yards for passive or active recreation activities. Accordingly, the mere fact that the rear yards cannot be used during a flood event does not mean that the private open space is unacceptable.
4. Thirdly, whilst the condition of consent requiring the restriction on the title does restrict what can be done in the rear yards, those rear yards nonetheless can be used for relaxation, entertainment and recreation. In that respect, I accept the evidence of Mr Delapierre that the rear yards will receive significant solar penetration, that the easement does not impact on the ability to provide or utilise the rear yards, and there is no physical impediment to crossing the easement or utilising it for activities. I accept his evidence that even without building structures in the rear yards, there are a range of relaxation, entertainment and recreational uses that could take place in the rear yards, such as reading a book and playing sports. As such, I am satisfied that the rear yards each satisfy the design principles in Part 3.3.2 of the PDCP 2011. In addition, any desire by an occupant to use play equipment can be met by the play equipment in the local park at Doyle Grounds.

Outcome of the appeal

1. The proposed development is permissible, with development consent, in the R2 Low Density Residential Zone in which the site is located. It complies with the applicable development standards under the PLEP 2011.
2. As set out above, the built form of the dual occupancy is predominantly located in the medium flood hazard precinct and complies with each of the planning controls that apply to dual occupancy development in the Medium Flood Risk Precinct. Further, as set out above, I have found that the risk to life from occupants remaining in the rear yards is remote, and that the remote risk is adequately mitigated and managed, such that the risk is not unacceptable and the proposed development complies with the design principles concerning water management and flooding in the PDCP 2011 (Part 2.4.2.1) and with the matters in cl 6.3 of the PLEP 2011. The site is therefore suitable for the proposed development.
3. I have also found that the rear yards of the proposed development provide acceptable private open space for each dwelling. Further, there is no public interest issue that warrants refusal of the proposed development. As the Council has not raised any other contentions that it says warrants refusal of the development application, development consent should be granted subject to the conditions of consent that have been agreed by the parties.
4. The Court orders that: 1. The appeal is upheld. 2. Development consent for the demolition of the dwelling house and detached garage, and the construction of a dual occupancy development, at 88 Grose Street, North Parramatta, is granted subject to the conditions in Annexure A. 3. The exhibits are returned, except for Exhibits 2, A, B, C, E, J and K.

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