Smith v Camden Council

Issues

1. Based on the way the case was pleaded by the parties at the hearing, the issues in this case can be summarised as follows: 1. What is the scope of the Amended Development Application and BIC Application? 2. Are the applications capable of being properly assessed? 3. Are subss 6.25(1)(a) and (b) of the EPA Act enlivened in this case such that there is power to issue a BIC at all, and if these subsections are not so enlivened, is there a discretion to issue a BIC in any event? 4. Does the BIC Application seek to regularise a "building" for the purposes of the EPA Act? 5. Is it appropriate to grant consent to the Amended Development Application and direct the respondent to issue the BIC, having regard to the flooding impacts associated with the Unauthorised Works and works proposed by the Amended Development Application?
2. For the reasons that follow, I consider it appropriate to dismiss both appeals.

The role of the Court on appeal

1. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows: 39 Powers of Court on appeals … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
2. Section 8.14 of the EPA Act similarly gives the Court broad powers on an appeal against a development application, as follows: (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly. …
3. Section 4.16 of the EPA Act relevantly provides that: (1) General A consent authority is to determine a development application by- (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.
4. Section 8.25(3) of the EPA Act relevantly gives the Court the following powers on an appeal against an application for a BIC: (3) On hearing the appeal, the Court may do any one or more of the following - (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate.

Legislative and planning framework

1. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration as are of relevance by a consent authority in determining a development application as follows: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
2. Section 6.25 of the EPA Act relevantly provides: (1) A building information certificate is to be issued by a council only if it appears that - (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4). …
3. As set out at [3], the Subject Land is zoned R5 Large Lot Residential under the CLEP. It is not disputed that the proposed use of stormwater pipes on a residential property are permissible with consent in the R5 zone. The R5 zone objectives to which I have had regard in the assessment of the Amended Development Application, are extracted below: • To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. • To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future. • To ensure that development in the area does not unreasonably increase the demand for public services or public facilities. • To minimise conflict between land uses within this zone and land uses within adjoining zones.
4. Clause 5.21 of the CLEP relating to flood planning relevantly provides as follows: (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 Flood Risk Management Manual. Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023.
5. "Flood planning area" (FPA) is relevantly defined in the Flood Risk Management Manual by reference to numerous acronyms and other defined terms. The relevant terms and their definitions and context are extracted below: Term Shortened form Definition Context for use/additional information Annual exceedance probability AEP The chance of a flood of a given or larger size occurring in any one year, usually expressed as a percentage AEP is generally the preferred terminology. ARI is the historical way of describing a flood event, for example, a 1% AEP flood has a 1% or 1 in 100 chance of being reached or exceeded in any given year Defined flood event DFE The flood event selected as a general standard for the management of flooding to development Aims to reduce the frequency of flooding but does not remove all flood risk, for example, in selecting a 1% AEP flood as a DFE you are accepting that there is a 1 in 100 chance that a larger event will occur in any year. This risk is being built into the decision Flood planning area FPA The area of land below the FPL. The FPA is generally developed based on the FPL for typical residential development. Different types of development may have different FPLs applied within the FPA. In addition development controls will vary across the FPA due to varying flood constraints Flood planning level FPL The combination of the flood level from the DFE and freeboard selected for FRM purposes Different FPLs may apply to different types of development Determining the FPL for typical residential development should generally start with a DFE of the 1% AEP flood plus an appropriate freeboard (typically 0.5 m). This assists in determining the FPA Flood risk management FRM The management of flood risk to communities

Evidence

1. The applicant relies on the expert flooding evidence of Mr Barthelmess.
2. The respondent relies on the expert flooding evidence of Dr Phillips.
3. Mr Barthelmess and Dr Phillips prepared the Joint Flooding Report filed 25 September 2024 (Ex 4).

What is the scope of the Amended Development Application and BIC Application?

1. The applicants have adopted a two-part approach in these proceedings, being to seek a BIC to regularise the Unauthorised Works and also development consent to augment and use those works. In other words, the applicant seeks by way of these proceedings, to have their BIC Application and Amended Development Application collectively approved so as to retain the augmented Unauthorised Works into the future.
2. The respondent relevantly contends in its written submissions (RWS) that: 1. "…it is difficult to discern from the terms of the DA and the BICA exactly what either application is seeking to regularise" (at [29]); 2. "The descriptions of the use and structures from the application forms for the DA and BICA respectively… are general and vague" (at [30]); 3. "The Court has no power to grant a development consent or building information certificate that is "inclusive" of development or a building (respectively) that is not properly identified in the development application. This is because the Court needs to be able to understand what it is approving to be able to undertake the evaluative process required to grant development consent or issue a building information certificate…" (at [32]).
3. The Applicant relevantly submits that "in considering the above applications, with the benefit of the detailed site plan, survey, photographic evidence, and engineering information, there can be no doubt as to the scope of the development and structures the subject of the applications" (Applicants Written Submissions (AWS) at [4]).

Consideration

1. Having regard to the submissions of the parties, it is necessary to first consider the exact scope of the Amended Development Application and BIC Application and then consider whether the applications contain sufficient information in order to be properly assessed.
2. The following can be gleaned from the Amended Development Application: 1. Class 1 Application Form (Ex A): In answer to the question, "date or other identification of the decision, or other matter appealed against, objected to, complained of or referred to remitted to the court", it is stated "Appeal against the Respondent's actual refusal of Development Application No. 2023/390/1 lodged with the Respondent on 17 July 2023, for continued use of stormwater pipes installed within existing drainage easement (flood mitigation), on land known as 5 Upfield Lane, Catherine Field NSW, also known as Lot 218 DP 808605". 2. Development Application Form (Ex A, tab 1, p 2): In answer to the question, "proposed type of development", it is stated "flood mitigation work". In answer to the question, "description of development", it is stated "continued use of stormwater pipes installed within existing drainage easement". 3. Letter from Foundation Law Group dated 13 February 2023 (Ex A, tab 5, p 2): "I am instructed that Mr Smith has constructed over the site of the easement a culvert, drainage pipes, and otherwise filled the easement with soil and capped with concrete in places…" 4. Statement of Environmental Effects prepared by Jervis Bay Town Planning dated 13 February 2023 (SEE) (Ex A, tab 6, pp 2 and 3): "The work completed includes earthworks and the laying of 6 x 375mm Upvc stormwater pipes within the site of a drainage easement that passes through the land… The work the subject of the applications include: Installation of 6 x 375mm UPVC pipes within the site of the stormwater easement. Continued use of the land within the stormwater easement for the conveyance of stormwater." 1. Plan of Approximate Position of Drainage Pipes over Lot 218 in DP 808604" prepared by Apex Surveying dated 3 April 2023 (Apex Plan) (Ex A, tab 7). The Apex Plan relevantly states, amongst other things: "This plan has been prepared from a combination of field survey and existing records. The location of certain features and improvements shown heron may be indicative and there is no guarantee of their spatial accuracy… The title boundaries shown herein have been determined by plan dimensions only and have not been verified by field measurements… Contours have been interpolated from spot heights taken and are approximately only." The part of the Apex Plan depicting the purported location of the Unauthorised Works is extracted below: 1. Letter from Terra Insight dated 7 May 2023 (Ex A, tab 8, p 2): "Six large pipes have been installed along the base of the channel and covered in recycled fill and the (sic) covered with topsoil…works also included the construction of a concrete inlet to the six pipes on the eastern side of the site." It is noted that "photograph 5" in Appendix C to this letter depicts "view of pipe inlet on the eastern boundary of property". 2. Sketch Plan prepared by Jervis Bay Town Planning dated July 2023 entitled "Sketch plan showing location of unauthorised stormwater pipes" (2023 Sketch Plan) (Ex A, tab 10): The 2023 Sketch Plan relevantly states, amongst other things: "The property dimensions, contours and other physical features have been compiled from existing information and have not been verified by field survey. The information shown on this plan are subject to survey and also to the requirements of Council and any other authority which may have requirements under any relevant legislation. In particular, no reliance should be placed on the information on this plan for detailed design or for any financial dealings involving the land." The part of the 2023 Sketch Plan depicting the purported location of the Unauthorised Works is extracted below: 1. Updated Site Plan and Section Plan (Ex C): The part of the Updated Site Plan depicting the purposed location of the Unauthorised Works is extracted below:
3. Section AA and BB in the Section Plan (as referred to in the Updated Site Plan) are extracted below:
4. Despite criticisms from the respondent as to the lack of a cohesive description of the Amended Development Application, I accept the applicant's submission that "it's the totality of the information that forms the application" (Tcpt 23 October 2024, p 2, line 26-27) that should be considered to determine the scope of the application as per Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [93]. I accept the applicants' submission that the Amended Development Application seeks consent for: 1. the ongoing use of the already constructed works that comprise:

• six x 375mm UPVC stormwater pipes;
• earthworks associated with the installation of those pipes; and
• concrete culvert and slab at the eastern boundary of the Subject Land; and 1. the construction of the 900 x 900mm Access Grate as depicted on the Updated Site Plan, Section Plan and Updated Engineering Report; and 2. demolition of an existing shed as depicted on the Updated Site Plan.

1. The following can be gleaned from the BIC Application (Ex B): 1. Class 1 Application Form: In answer to the question, "date or other identification of the decision, or other matter appealed against, objected to, complained of or referred to remitted to the court", it is stated "the Respondent be directed to issue Building Information Certificate for the building the subject of in (sic) Building Information Certificate Application number 2023/33/1, lodged on the NSW Planning Portal on 18 July 2023". 2. Building Information Certificate Form (tab 1): In answer to the question, "list and describe the structures the Building Information Certificate would apply to", it is stated "Stormwater Drainage". 3. Letter from Foundation Law Group dated 13 February 2023 (tab 5, p 2): I note that this is the same letter as contained in tab 5 of the Class 1 Application in the DA Proceedings - see [55(3)] above. 4. SEE (tab 6, p 2) (noting that the same SEE was lodged in both the DA Proceedings and BIC Proceedings): "The work completed includes earthworks and the laying of 6 x 375mm Upvc stormwater pipes within the site of a drainage easement that passes through the land". 5. Letter from Terra Insight dated 7 May 2023 (tab 8, p 2): I note that this is the same letter as contained in tab 8 of the Class 1 Application in the DA Proceedings - see [55(6)] above. 6. 2023 Sketch Plan (tab 10): I note that this is the same 2023 Sketch Plan as contained in tab 10 of the Class 1 Application in the DA Proceedings - see [55(7)] above). 7. Updated Site Plan and Section Plan (Ex C): These documents are the same in both proceedings, but are relevant to the BIC Proceedings only insofar as they purport to depict existing constructed Unlawful Works on the Subject Land.
2. Despite criticisms from the respondent as to lack of cohesive description of the works sought to be regularised by the BIC Application, I similarly accept the applicants' submission that "it's the totality of the information that forms the application" (Tcpt 23 October 2024, p 2, line 26-27) that should be considered to determine the scope of the application for the same reasons as set out at [57]. I accept that there was enough information contained within the BIC Application (albeit throughout multiple documents within that application) to find that the BIC Application seeks to regularise the following elements: 1. six x 375mm UPVC pipes in the general location shown on the Updated Site Plan (noting that this indicative only and not a survey plan); and 2. a concrete culvert/inlet and slab on the eastern side of the Subject Land.

Are the applications capable of being properly assessed?

1. The respondent contends that there are material inadequacies in both the BIC Application and Amended Development Application insofar as both "fail to identify with any specificity the works the use of which is to be approved in the DA Proceedings and the buildings or structures that are to be allowed to remain in the BIC Proceedings (and even fails to identify with specificity the location and extent of the as-built works that are identified in those applications - being the pipes)" and that subsequently, both applications should be refused (RWS at [43]).
2. More specifically, the respondent submits that the following deficiencies exist in both applications (see RWS [36]-[46]): 1. There has been no survey carried out of the as completed works. The 2023 Sketch Plan submitted with the applications (if still relied on) shows only an indicative location of the six pipes and does not show where they begin or end and further states that it is "subject to survey" and "no reliance should be placed on the information shown on this plan for detailed design". 2. The Updated Site Plan on which the applicants were granted leave to rely on 1 August 2024 in the DA Proceedings does not assist as it has the same disclaimers and does not provide further detail on the as completed works. 3. To the extent that the applicants seek to rely on the Updated Site Plan and Section Plan in the proceedings, they contain the following inadequacies:

• The Updated Site Plan shows a wholly different location for the pipes from the Apex Plan and it is unclear which plan is relied on by the applicants and which plan is correct.
• There is no survey of the works or the existing pipe. It is unclear where the pipes actually start and end on the Updated Site Plan, their location, or how deep they are. Nor is the location of those pipes identified in relation to the Existing Council Infrastructure. Further, the Updated Site Plan and Section Plan still do not reflect the works as they presently exist on the Subject Land. For example, at the site view, the parties observed "that the pipe on the right was also partly blocked or obscured and that's not reflected anywhere in the plan" (Tcpt 23 October 2024, p 12 line 37-38).
• The location of the Existing Council Infrastructure (referred to on the Updated Sketch Plan as "Council's Stormwater Pipe") is identified as "indicative". This is inadequate and further the indicative location outside the existing easement appears unlikely - either way the respondent is not able to determine its accuracy from the information provided.
• No specifications are identified for the Access Grate, including how it would be placed in (and attached to) the culvert, whether it is a panel or grate, how it would be opened or what modifications would be made to the culvert to accommodate it.
• The pre-cast culvert and concrete slab that has been installed over the pit blocks Council's ability to freely carry out works on that pit. If works need to be undertaken on the pit, there remains the possibility that the pre-cast culvert and concrete slab will need to be removed or replaced to carry out those works underneath if access through the hatch is not enough. The respondent went on to state in oral submissions "how is council supposed to get to its existing pipeline that was under the line somewhere, of the existing easement? The applicant hasn't bothered to work out where it was. How is council supposed to get to that, if it has to now dig up six pipes, and dig around what used to be the swale, and remove soil to make its way to the pipe underneath?" (Tcpt 23 October 2024, p 23 line 7-11).

1. In response to the respondent's criticisms of both the Amended Development Application and BIC Application, the applicants relevantly submit that: 1. "with the benefit of the site inspection, the photos and the survey which includes the slab, as well as the site plan, there is more than enough information before the Court to understand what is being approved" (Tcpt 24 October 2024 p 3 line 12-15); and 2. ".. in circumstances where the structure already exists and there's a photo of its existence… we've physically stood on top of the location of the proposed access grate, and X physically marks the spot, in terms of where it was going to be located. There's not uncertainty as to how that will be built, where it will be built and its dimensions, and a structural assessment that follows it" (Tcpt 24 October 2024, p 3 line 19-28).

Consideration

1. Having regard to the evidence and submissions in this case, I accept the respondent's argument that both the Amended Development Application and BIC Application are inadequate to be properly assessed by the Court.
2. The multiple and contradictory plans relied upon by the Applicants in both proceedings do not include a survey of the Unauthorised Works or sufficient detail to allow the Court to have certainty about the works the BIC Application is seeking to regularise. I have determined that the BIC Application is seeking to regularise "six x 375mm UPVC pipes in the general location shown on the Updated Site Plan, and a concrete culvert/inlet and slab on the eastern side of the Subject Land."
3. Noting that the Updated Site Plan is not a survey, it was clear from the site view that the existing as constructed Unauthorised Works are not accurately depicted on any plan relied on by the applicants in these proceedings. Omissions or errors in the plans include the blockage of one of the pipes by concrete or mesh (the precise nature of the blockage was unknown) (Tcpt 24 October 2024, p 15 line 20-24), the orientation of the wing wall which obstructs the pipe to the left of the four pipes inside the culvert (see Tcpt 24 October 2024, p 26 line 5 - p 27 line 1-4), and various steel structures and planter boxes (Tcpt 24 October 2024, p 12 line 36-46). It is not appropriate to direct the respondent to issue a BIC in circumstances where there is no clear understanding by reference to plans and drawings of the structures for which the BIC is being sought.
4. I reject the applicants' argument that it does not matter that the plans do not accurately reflect the existing Unauthorised Works, as this can be addressed through the Amended Development Application and proposed conditions of consent. This is because the interrelationship between the Amended Development Application and BIC Application is opaque and vague. Without a foundational understanding of the existing Unauthorised Works, it is not possible to understand what further works are proposed by the Amended Development Application to those Unauthorised Works and whether the proposed further work is possible or reasonable.
5. This means that it is not clear what works are required to bring the Unauthorised Works into alignment with the structures depicted on the Updated Site Plan, and whether these works are achievable. To this end I note the following exchange between the applicants' counsel, Dr Smith, and the applicants' flooding expert, Mr Barthelmess (at Tcpt 24 October 2024, p 12, line 31-46): "SMITH: In terms of the questions Dr Phillips had as to what it depicts, if you could assist the Court with those? I think if you could step us through the sections as to what you've drawn and what they illustrate, that would assist the Court. WITNESS BARTHELMESS: The, if, if I go to the plan, sheet one. One of the comments that, that Dr Phillips made was that there is some sheet metal and some planter boxes located between the edge of the, the, the driveway and, and wing wall slab, and the boundary. That, that is the case. If you look at the plan, you can see that the culvert slab is in it as surveyed position, and it, it, it doesn't, there, there's a gap between the slab and the boundary, and that is the gap with which Dr Phillips nominates that there's some steel structures and planter boxes. My understanding is that none of those structures form part of the application. And that's why they're not shown on the plan."
6. The above exchange exemplifies the lack of attention given by the applicants to the existing location, details and specifications of the as built Unauthorised Works and lack of consideration to the specific works required to use the Unauthorised Works going forward. There does not appear to be any consideration as to how or when the steel structures, in particular, would be removed or if it is even intended that they will be removed. Their existence is omitted from the Amended Development Application and BIC Application.
7. The proposed works encompassed by the Amended Development Application regarding the Access Grate similarly lack detail and specificity and I accept the respondent's arguments in this regard.
8. It is also problematic that there has been no actual identification or understanding of the Existing Council Infrastructure and how it may be affected by the Unlawful Works. I do not accept that the applicants' "indicative" approach to the Existing Council Infrastructure is sufficient in this case to allow the Court to adequately consider whether the approval of the Amended Development Application and granting of the BIC Application is appropriate and in the public interest.
9. However, in the event that I am incorrect and the applications contain sufficient information to be properly assessed, I have determined that they must fail on their merits, having regard to flooding considerations which I will now address.

Is it appropriate to grant consent to the Amended Development Application and direct the respondent to issue the BIC and having regard to the flooding impacts associated with the Unauthorised Works and works proposed by the Amended Development Application?

1. There are two bases for the consideration of flooding impacts in this case: 1. clause 5.21 of the CLEP and whether it applies, and if so, whether the Court can be satisfied of the matters listed in cl 5.21(2) having also considered the matters in cl 5.21(3); and 2. whether the flooding impacts caused by the Unauthorised Works and the works proposed by the Amended Development Application are in the public interest, having regard to the matters in s 4.15(1)(e) of the EPA Act.

Does cl 5.21 of the CLEP apply?

1. The state of satisfaction required by cl 5.21(2) of the CLEP is only enlivened if the development is located "on land the consent authority considers to be within the flood planning area".
2. The parties disagree as to whether the development is located within the flood planning area.
3. The definition of "flood planning area" is specified in cl 5.21(5) to have the same meaning as it has in the Flood Risk Management Manual, being "the area of land below the flood planning level" (or FPL). "Flood planning level" is defined in the Flood Risk Management Manual to mean "the combination of the flood level from the DFE (defined flood event) and freeboard selected for FRM (flood risk management) purposes." The "context for use/additional information" provided for this term is extracted below: "Different FPLs may apply to different types of development Determining the FPL for typical residential development should generally start with a DFE of the 1% AEP flood plus an appropriate freeboard (typically 0.5m). This assists in determining the FPA".
4. "Defined flood event" is defined as "the flood event selected as a general standard for the management of flooding development". The "context for use/additional information" provided this term is extracted below: "Aims to reduce the frequency of flooding but does not remove all flood risk, for example, in selecting a 1% AEP flood as a DFE you are accepting that there is a 1 in 100 year chance that a larger event will occur in any year. This risk is being built into the decision".
5. The applicant submits that (AWS at [15]): "For the consent authority to be satisfied that the land is (sic) within the Flood Planning Area - it must have before it: A flood level - being a DFE, which in this case is the 1% AEP (A); A freeboard (B); A Flood Planning Level (A plus B)"
6. The applicants rely on the Business Paper and Minutes of the Council Meeting of 14 February 2023 (AWS at [16]) to submit that it is the Upper South Creek Flood Study 2022 (Study) which has been adopted by the respondent to determine the Flood Planning Level and that this Study does not identify the Subject Land as being affected by the 1% AEP, being the DFE for the purposes of these proceedings.
7. The Business Paper and Minutes of the Council Meeting of 14 February 2023 (Ex G, p 63) relevantly provide that the Study (in conjunction with other identified flood documents): "… have been developed in line with the NSW Floodplain Development Manual and publicly exhibited, reviewed and updated. These documents are expected to enable the provision of high-quality flood information and management of floodplain risks for Camden's growing community. The adoption of these documents will also enable Council to continue to meet its obligations under the Environmental Planning and Assessment Act 1979, Local Government Act 1993 and NSW Flood Prone Land Policy."
8. Section 9.5.1 of the Study titled "Flood "Planning Area" relevantly provides that: "The Flood Planning Area (FPA) defines the area where flood planning controls are applied. A provisional FPA has been developed using the 1% AEP design flood event. For areas affected by mainstream flooding, the following methodology was employed: ● Trim the flood extent to just the main creeks (South Creek, Lowes Creek, Thompsons Creek, Rileys Creek, Kemps Creek, Scalabrini Creek and Bonds Creek). Each of these areas was separated into zones, defined by a downstream control, for example a road or dam embankment. Within each of these zones, 0.5m freeboard was added to the 1% AEP flood level, which is known as the Flood Planning Level (FPL). The FPL surface was stretched to intersect with the terrain to form the mainstream FPA… ● This defined the Mainstream FPA. For areas affected by overland flooding, the areas affected by the 1% AEP flood outside the mainstream extent were filtered to retain areas where the flood depth is greater than 0.15m. These are defined as the Overland FPA." The FPA, including both the Mainstream FPA and Overland FPA, is shown in Figure C35.
9. Figure C35a (Ex 3, tab 25, p 833(B)) is extracted below:
10. An extract of Figure C35 (Ex 3, tab 25, p 832(a)) as edited by the applicants to identify the location of the Subject Land (AWS at [21]) is extracted below:
11. The applicants argue that the Flood Planning Area is shown in red hatching, being the DFE plus 0.5m freeboard that has been quantified in accordance with the Flood Risk Management Manual for the purposes of cl 5.21 of the CLEP. The applicants submit that the Subject Land falls outside of the red hatching, and therefore, the flood planning area. This has the necessary consequence that cl 5.21 of the CLEP does not apply to the Amended Development Application.
12. For completeness, the applicants submit that although the Subject Land does contain green shading on Figure C35, indicating "Overland FPA", this is different, and separate to, the identification of the flood planning area. This is because the calculation of the "Overland FPA" was "determined from a formula where particular overland flow is deeper than 0.15m, without the application of freeboard. This is a distinct departure from the way in which the Flood Planning Level (and Flood Planning Area) are meant to be determined" and therefore fall outside the definition of "flood planning area" for the purposes of the Flood Risk Management Manual and cl 5.21 of the CLEP (AWS at [22]-[23]).
13. The respondent submits that this interpretation is misconceived, on the basis that, "whether land is within the flood planning area is not determined by whether a consultant in a report that Council has adopted says the land is within a flood planning area, but by whether the land is below the Council adopted flood planning level. It may be noted that even that figure shows the easement land in green as "overland flood planning area"" (RWS at [64]).
14. The respondent instead relies on the "Flood Certificate" issued by the respondent on 28 March 2024 (Flood Certificate) in respect of the Subject Land (Ex 3, tab 9) to submit that the Subject Land is located within the "flood planning area".
15. The Flood Certificate relevantly contains the following information:
16. The Flood Certificate goes on to tick the box "Property Below the Flood Planning Level", stating: "Council considers the land in question to be below the flood planning level and therefore subject to flood related development controls. The conditions as set out in Council's Flood Risk Management Policy will reduce flood risk in flood events up to the Flood Planning Level; however, the property may still be subject to flooding at higher levels during rare flood events."
17. The Flood Certificate contains multiple maps including Map B - 1% AEP Flood Levels, m AHD as follows:
18. The respondent submits that the "flood planning level" identified in the Flood Certificate is stated to be "based on 1% AEP flood level + 500mm freeboard" and is therefore consistent with the definition in the Flood Risk Management Manual and cl 5.21 of the CLEP. As the Flood Certificate determines that the Subject Land is located below the "flood planning level", cl 5.21 of the CLEP applies.
19. The applicant submits (AWS at [20]) that the Court would not accept the Flood Certificate as establishing the relevant flood planning level on the basis that the Flood Certificate: 1. was not requested or applied for by the applicants; 2. is of unknown provenance 3. is not expert evidence, and 4. contains the following considerable caveats (emphasis added): "In issuing certificates, Council applies reasonable care to ensure accuracy of information to the best of its knowledge. However, the certificate may contain some errors and/or omissions. Importantly, flood information and levels are subject to change (without notice) based upon matters such as new or improved flood study data and changes to the built and/or natural environments. Responses provided within the certificate are current for the day of issue only. Council does not warrant that the information contained within the certificate will suit the requirements of the applicant. Reliance on this flood certificate alone cannot be made to justify development or the use of land for any particular purpose, or the inability or undesirability to develop or use land for any particular purpose. In many instances, it may be appropriate and/or necessary for applicants to obtain independent flooding/hydrological advice from appropriately qualified and experienced expert/s."
20. Having regard to the parties' submissions and relevant documents, I accept the applicants' submission that the Subject Land is not identified as being below the "flood planning level" and therefore within the "flood planning area" for the purposes of the Flood Risk Management Manual and cl 5.21(2) of the CLEP.
21. This is for the reasons given by the applicants, namely that it is apparent from the Study that the "flood planning level" has been identified and calculated in a manner consistent with the explanation and definition of that term as set out in the Flood Risk Management Manual. The Meeting Minutes indicate that the respondent has publicly adopted the Study, and therefore the Study's calculation and identification of the "flood planning level" from which the "flood planning area" can be determined.
22. I accept the applicants' argument that the "Overland FPA" is a different concept and that it is the "Mainstream FPA" identified in red on Figure C35 which determines whether the Subject Land is located within the "flood planning area" for the purposes of cl 5.21 of the CLEP. This is particularly due to the fact that section 9.5.1 of the Study specifically states that "0.5m freeboard was added to the 1% AEP flood level, which is known as the Flood Planning Level (FPL)" (Emphasis added.). The Study specifically defines the Mainstream FPA by reference to the "flood planning level", as opposed to the separate concept of "Overland FPA" which is not calculated by reference to the "flood planning level".
23. I similarly accept the applicants' argument that the flood certificate does not displace the Study in circumstances where it has been prepared on an uncertain basis, and specifically provides that it should not be relied upon in isolation to either justify development or the undesirability of development. I note that the Flood Certificate states that the "source of data" for the "flood information" contained within the certificate is in fact the Study itself. Therefore, the Flood Certificate appears to rely on the Study as the source of its analysis.
24. In circumstances where the findings in the Flood Certificate and the maps contained within it do not appear to be consistent with, or sourced from the maps and diagrams contained within the Study and no explanation is provided as to their creation or origin, I place significantly more weight on the definition of "flood planning level" as determined by the publicly adopted Study, than the Flood Certificate. I have therefore determined that the identification of the "flood planning level" contained within the Study, is the relevant benchmark from which to determine the "flood planning area" for the purposes of cl 5.21 of the CLEP.
25. As the Subject Land falls outside of the Flood Planning Area, cl 5.21 of the CLEP does not apply to the Subject Land, and it is not necessary to consider the provisions of cl 5.21 further.

Is the issuing of the BIC and approval of the Amended Development Application in the public interest?

1. Notwithstanding that I have determined cl 5.21 of the CLEP does not apply in these proceedings, it is necessary to consider whether the issuing of the BIC and approval of the Amended Development Application is in the public interest for the purposes of s 4.15(e) of the EPA Act.
2. The respondent submits that the "works that are proposed to be used and structures that are proposed to remain will change the function of the drainage system in such a way as to negatively affect other properties and the subject site" (RWS at [53]).
3. The applicant conversely submits that although there may be increases in flood affectation as a result of the Unauthorised Works and their augmentation and use, "a simple increase in and of itself does not equate or result in a detrimental (causing detriment, injurious, prejudicial) effect" (AWS at [30]).
4. The applicant relies on evidence of Mr Barthlemess who carried out modelling (see Ex 4, tab H) to evaluate the development in the context of its overland flow regime, having regard to the findings of the Study as they relate to the Subject Land. In Mr Barthelmess' view, the "reported impacts" from the Unauthorised Works are not adverse or detrimental for the following reasons (Ex 4, tab 1, p 8): "a. The impact on the upstream property is predominantly located on land that is already inundated in the modelled events, and is nearly entirely located within the CC easement. This does not cause any detriment to the development or property at this location. b. The impacts on the adjoining upstream block only occur in very rare flood events, for a small period of time. In frequent events, such as the 20% AEP event, there are no impacts. Further, the impacts do not affect the dwelling or any other piece of property - the impacts are only on t a small portion of grass. This is not adverse to the land."
5. The applicant submits (AWS at [33]) that there are no habitable dwellings in the locations of increased flood affectation, and, for there to be a detrimental effect, "this would require people to act in a way which is irrational or illogical and contrary to advice", relying on the findings of Gray C in Salic v Parramatta Council [2021] NSWLEC 1309 at [53].
6. The respondent relies on the expert evidence of Dr Phillips (Ex 4, tab 1, pp 7-8) to assert that the following changes will occur to flooding post-development compared with pre-development (having regard to the findings of the model on which the applicants rely) as follows: "9. The impact of the proposed development in a 20% AEP flood include: (1) A reduction in the flood extent downstream of the driveway along the western boundary; and (2) A local increase immediately upstream of the eastern boundary on 7 Upfield Land of 0.1 to 0.2m. 10. The impact of the proposed development in a 1% AEP flood include: (a) A local increase downstream of the subject property on 212A Springfield Road of 0.1m to 0.2m; (b) An increase in the extent of inundation on 212A Springfield Road; (c) An increase in the extent of inundation on both the northern and southern side of the driveway along the western boundary; (d) A local increase immediately of the eastern boundary of up to 0.3m which is almost all confined within the drainage easement; (e) An increase in the extent of inundation on the upstream property (7 Upfield Lane); (f) A comparison of Council's PMF extent under Pre-development Conditions as disclosed in Map C in Council's Flood Certificate with the 1% AEP flood extents under Post-development Conditions (as disclosed in Figure A6.2, RIENCO Consulting, 2024)discloses that the Post=Development 1% AEP flood extents is disconcertingly close to the Council's southern PMF extent under Pre-development conditions which indicates that the dwelling would be threatened by flooding more frequently than under pre-development conditions. 11. The impact of the proposed development in a 1% AEP flood under climate change include: (a) A local increase downstream of the subject property on 212A Springfield Road of 0.1m to 0.2m; (b) An increase in the extent of inundation on 212A Springfield Road; (c) An increase in the extent of inundation on both the northern and southern side of the driveway along the western boundary; (d) A local increase immediately of the eastern boundary of 0.2m to 0.5m; (e) An increase in the extent of inundation on the upstream property (7 Upfield Lane) (f) A minor incursion of floodwaters across the northern boundary of 5 Upfield Lane on to 3 Upfield Lane. (g) A substantial increase in the extent of inundation within the subject property. 12. The impact of the proposed development in a PMF include (where impacts exceed 0.05m): (a) A local increase immediately of the eastern boundary of 0.1, to 0.2m; (b) An increase in the extent of PFM inundation on 3 Upfield Lane which extends to the dwelling; (c) A significant local increase of 0.2m to 0.5m within 5 Upfield Lane; (d) Local increase of 0.05 to 0.1m on the northern side of the dwelling on 5 Upfield Lane."
7. The respondent submits (at RWS [55]) that the "inappropriateness of the works that are sought to be regularised by the DA and BICA are patent" and that even without a consideration of cl 5.21 of the CLEP (or other relevant controls) the Court should "conclude that the proposal ought be refused on the basis of the impacts of the works (and use of them) that are sought to be regularised: s 4.15 of the EP&A Act makes these impacts a relevant consideration the DA for us ought be refused on this basis" (RWS at [57]). The respondent goes on to submit that "moreover, by analogy with the principles applying to a development application (as a useful guide in the way identified by Cssr Gray applying Bignold J [in Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009 at [69]-[79]] allowing the works the subject of the BICA to remain is inappropriate for the same reasons" (RWS at [57]).
8. I consider the flooding impacts of the Unauthorised Works and works proposed by the Amended Development Application highly relevant to the consideration of the public interest and whether the Unauthorised Works should be permitted to remain and be "used" (even if modified in the manner proposed by the applicants).
9. Having regard to the evidence and facts in this case, I accept Dr Phillips' analysis of the increase and decreases in flood affection (whether it be extents, depths, velocities etc) as a result of the Unauthorised Works (set out at [103]). I note that Dr Phillips' analysis is drawn from Mr Barthelmess' model and the figures contained in Attachment H to the Joint Flooding Report and does not appear to be disputed as to the recording of the results.
10. I am satisfied that the Unauthorised Works, in conjunction with the works proposed by the Amended Development Application and their use, will increase the flooding extent and depths at 212A Springfield Road, 7 Upfield Lane and the Subject Land itself, primarily in the 1% AEP (with and without climate change) and the PMF modelled flood events. This includes the inundation of the septic tank located at the rear of 212A Springfield Road during the 1% AEP and PMF and the inundation of 3 Upfield Lane up to the dwelling located on that property during the PMF which would not otherwise have been affected by flooding in these events prior to the Unauthorised Works. I note that even the 20% AEP modelled flood event shows increases in the flood extent and depth on 7 Upfield Lane (see Figure A9.1 in Ex H to the Joint Flooding Report).
11. Although I accept that some flooding impacts will be reduced during various modelled flooding events and the modelled increases do not appear to effect dwellings (other than potentially 3 Upfield Lane during the PMF), the fact that the Unauthorised Works and their proposed augmentation and use may increase flood affectation on neighbouring properties by a significant lateral extent as well as depths of up to 0.3m during the 1% AEP without climate change and up to 0.5m during the PMF, is not immaterial or insignificant and amounts to an adverse and detrimental impact.
12. Further, flood affectation will also be increased to a considerable extent on the Subject Land itself during certain modelled flood events (see for example, the comparison of Figures A3.2 and A6.2, comparison of Figures A3.3 and A6.3 and A9.2 in Ex H to the Joint Flooding Report).
13. In my view, it is not within the public interest to allow works carried out without consent (even if to be augmented by proposed works to be carried out with consent) to remain in circumstances where they will increase the potential for adverse flood affectation to neighbouring properties and the Subject Land itself. The Amended Development Application must therefore fail. As I have determined to refuse the Amended Development Application, it is not appropriate to permit the Unauthorised Works to remain and the BIC Application must similarly fail.
14. Having regard to findings above, it is not necessary to deal with other issues raised in these proceedings.

Orders

1. In Proceedings 2023/320704, the Court orders that: 1. The appeal is dismissed. 2. Development application DA/2023/390/1 is refused. 3. The exhibits are returned except for 3, 4, A, B, G.
2. In Proceedings 2023/320711, the Court orders that: 1. The appeal is dismissed. 2. Building information certificate application BC/2023/33/1 is refused. 3. The exhibits are returned except for 3, 4, A, B, G.

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