COMMISSIONER: This is an appeal against the refusal of Development Application DA0371/21 by Eurobodalla Shire Council (the Council), which seeks construction of a two-storey dwelling house and associated civil works on Lot 9 Deposited Plan (DP) 571676, also known as 13 Wharf Street, Nelligen (the site).
For the reasons explained below, I am satisfied that Development Application DA0371/21 (hereafter the application), as amended, addresses the relevant jurisdictional and merit assessment requirements for the Court to determine to grant consent.
[2]
Background
The application was made pursuant to s 4.12(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and submitted to Council on 8 December 2020. In addition to being internally reviewed, the original application was notified to residents between 8 December 2020 and 4 January 2021, and also was referred to the NSW Department of Primary Industries (DPI), whose positive response is adopted in the conditions of consent.
After internal review, the Council refused the application on 22 December 2021. The applicant subsequently appealed against the refusal of the application, pursuant to s 8.7(1) of the EPA Act.
The Council agreed for the applicants to amend the application on 31 January 2022, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), by Notice of Motion filed on 23 January 2023 and heard by the Registrar on 31 January 2023, tendered as Exhibit B.
The appeal is a Class 1 proceedings, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), which was first dealt with by way of a conciliation conference. As the parties were unable to reach an agreement, the conciliation conference was terminated, and pursuant to s 34AA(2)(b) of the LEC Act, the hearing was held forthwith.
The hearing (and conciliation) did not rely on a site inspection, at the request of the parties, pursuant to s 34D of the LEC Act. However, photographs of the site, as provided in Exhibits 7, F, H and J provide relevant context of the site within its local setting, and in particular its relationship to the Clyde River.
At the commencement of the hearing, as well as during the hearing, amendments to the application were sought by the applicants relating to the proposed refuge area in the dwelling. Mr O'Gorman-Hughes made oral submissions that the changes sought had responded to the joint conferencing of the experts and the previous conciliation, to address the flooding contention.
Pursuant to cl 55(1) of the EPA Reg, Ms Sims on behalf of the respondent submitted that the amendments, as sought, were not opposed on the grounds of being responsive to expert conferencing, although they did not adequately address the flooding contention.
During the hearing, the oral submissions for the amendments sought, the Court granted leave to rely on the amended application, with relevant amendments tendered in evidence in Exhibits D and K. An amended BASIX certificate that relates to the amended application is tendered in Exhibit M.
Further to this, leave was granted, without opposition of the respondent, to update the flood evacuation response plan that reflects the agreement of the flooding experts provided during oral evidence to address the flood response time and water depths, and which is tendered as Exhibit N, after the hearing on 27 June 2023.
The parties agreed to update and amend draft conditions of consent to reflect the evidence of the experts. Amended conditions with track changes were filed on 27 June 2023 and these amended conditions replace Exhibit 9.
[3]
The contentions before the Court in consideration of the (amended) application
At the commencement of the hearing, the respondent identified the primary contentions that are still pressed and as raised in the Statement of Facts and Contentions (SoFC, Exhibit 1), being:
1. the site is unsuitable for a residential dwelling due to the flooding risk; and
2. residential development of the site is not in the public interest, without lot consolidation to effectively restrict development intensification in the flood prone area.
The Council considers that the contention relating to waste management is addressed by an agreed condition of consent, based on the amended design of the dwelling and waste system. In consideration of the contention in the SoFC and evidence before the Court, I am satisfied that the effluent pump out system described in a report by Peter Spurway & Associates, dated April 2022 (Exhibit B) together with the agreed conditions of consent (Exhibit 9) address the requirements to provide a suitable sewage disposal system on flood prone land. The waste management contention is resolved,
It is noted that where there are jurisdictional requirements for consideration, the Court must form its own opinion of satisfaction based on the evidence, as explained by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 ("Toga judgment"). The Court is also required to undertake its own merit assessment of the application before determining a grant of consent.
The assessment of the merits and relevant jurisdictional requirements of the amended application are addressed below, with the issues raised by the resident in objection also considered as part of the Court's consideration.
[4]
The Site
The site is a regular, rectangular shape, and fronts directly to Wharf Street, forming the eastern boundary..
The site is currently vacant, covered by grasses. A single level dwelling that stood once on the site was demolished in mid-late 1990's, based on the oral evidence of Ms Bradshaw (the second applicant).
To the north of the site are predominantly single to two-storey detached residential properties forming part of the village of Nelligen. To the west and south of the site is coastal wetland habitat. The Clyde River (highwater mark) is located approximately 25m to the east of the site, separated by Wharf Street.
[5]
Relevant planning controls and legal framework for assessment
In consideration of the jurisdiction requirements relating to the application, the Court is informed by the amended application described in Exhibits B, D and K, the Council's determination report, Exhibit 3 and the respondents Bundle of Documents, tendered as Exhibit 2.
The requirements of the EPA Act are relevant for the Court's consideration to grant consent to the amended application under appeal, and specifically in consideration are the matters described in s 4.15(1) below:
4.15 Evaluation (cf previous s 79C)
(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.
The site is mapped as being within the locality of Batemans Marine Park, pursuant to s 56(1) of the Marine Estate Management Act 2014 (MEM Act). Pursuant to s 4.47 of the EPA Act, the application was referred to the DPI, who are satisfied there is no assessed impact to the Marine Park. I am satisfied that the relevant requirements of the MEM Act are sufficiently addressed and there is no assessed adverse impact to the Marine Park resulting from the application.
I am satisfied that the proposed development relates to the land described in the application, and that owner's consent, pursuant to cl 49 of the EPA Reg has been provided. It is understood that the parties agree, by condition of consent, for a flood level sign to be erected on Council land.
In consideration of the requirements of s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Hazards), I am satisfied that the Council has considered, and application has demonstrated the previous residential use of the site, which together with the agreed conditions of consent, address the relevant requirements of s 4.6.
Further to this, the site is located on lands within the proximity area for coastal wetlands, as mapped on the Coastal Wetlands and Littoral Rainforests Map, thereby engaging s 2.8(1) of the SEPP Hazards. The site is also located within the area mapped as Coastal Environment and Coastal Use, engaging ss 2.10 and 2.11. The Council assesses in the Council's determination report (Exhibit 3) that there are no likely impacts to the coastal wetlands surrounding the site, based on the physical separation of hard surfaces (car park) between the proposed development and wetland habitat. I am satisfied that the proposed development sufficiently addresses the requirements of ss 2.8, 2.10 and 2.11 of the SEPP Hazards.
The proposed development is required to comply with the provisions of the State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX Certificate, 1110002S_12, issued on 14 June 2023, relevant to the proposed development as amended, has been sighted, tendered in evidence (Exhibit M) and is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.
The site is located on land zoned C2 Environmental Conservation, pursuant to cl 2.3 of the Eurobodalla Local Environmental Plan 2012 (ELEP).
A dwelling house is not a permissible development in the C2 Environmental Conservation zone, pursuant to cl 2.3 of the ELEP. However, following amendment to the ELEP to recognise the historic residential use of the rezoned land along Wharf Street, pursuant to Sch 1, cl 15A, a dwelling house is deemed permissible on the site, provided there is only a single dwelling house on the parcel of land that is defined by Lots 8 and 9, DP 571676, as described below:
15A Use of certain land at Wharf Street, Nelligen
(1) This clause applies to the following parcels of land at Nelligen -
(a) the parcel of land comprising 1 Wharf Street, being Lot 15, Section 6, DP 758762,
(b) the parcel of land comprising 3, 5, 7 and 9 Wharf Street, being Lots 11-13, Section 6, DP 758762, Lot 1, DP 125591 and Lot 1, DP 1038903,
(c) the parcel of land comprising 11 Wharf Street, being Lot 10, Section 6, DP 758762,
(d) the parcel of land comprising 13 and 15 Wharf Street, being Lots 8 and 9, DP 571676,
(e) the parcel of land comprising 17 and 19 Wharf Street, being Lots 6 and 7, Section 6, DP 758762.
(2) Development for the purposes of a single dwelling house (and any associated bed and breakfast accommodation, health consulting rooms, home-based child care, home business, home industry or secondary dwelling) is permitted with development consent on each of the parcels of land specified in subclause (1).
(Emphasis added.]
In consideration of the evidence, I am satisfied that the relevant C2 zone objectives, as established in cl 2.3 of the ELEP, are addressed by the proposed development. The relevant development standards of the ELEP are satisfied by the proposed development. For reasons assessed in the judgment, I am satisfied that the relevant aims and objectives of the ELEP, as described in cl 1.2 are sufficiently addressed by the proposed development, and specifically cl 1.2(2)(e) which relates to considering the flood risk.
The site is mapped as being underlain by Class 2 Acid Sulphate Soils (ASS), in the ELEP, therefore cl 6.3 is engaged. The proposed development is subject to a management plan to mitigate any adverse impact from exposure of ASS, which is considered in an ASS Assessment report by Geoff Metzler & Associates, dated 7 June 2022, and described in the conditions of consent. I am satisfied that the objectives of cl 6.3 are addressed because the development is unlikely to cause environmental damage resulting from exposure of ASS.
The controls of the Nelligen Development Control Plan 2012 (NDCP) are a relevant consideration of the Court, particularly with respect to the bulk and scale of the proposed development. I am satisfied, based on the evidence before the Court that the application under appeal has generally complied with the relevant controls of the NDCP.
[6]
Experts
The Court was provided with written and oral evidence from the following experts: planning, Mr Brett Daintry for the applicants and Ms Rebecca-Lee Ireland for the respondent; and for flooding, Mr Stephen Gray for the applicants and Ms Sabina Mallard for the respondent. I refer to their joint expert reports, tendered as Exhibits 4, 5 and 6, and consider their oral submissions made during the hearing.
[7]
Is the proposed development compatible with the flooding associated with the site?
The primary contention of Council, as explained to the Court, is that there is a potential for adverse flood risk to future residents of the site, that these risks cannot be mitigated by a dwelling design that relies on shelter in place. Therefore, the site is unsuitable for a dwelling.
The following definitions provided in the NSW Floodplain Development Manual (FDM) are relevant for consideration of the application under appeal and assist the Court in understanding the flooding situation on and around the site:
"Average recurrence interval (ARI) - the long-term average number of years between the occurrence of a flood as big as or larger than the selected event. For example, floods with a discharge as great as or greater than the 20 years ARI flood event will occur on average once every 20 years. ARI is another way of expressing the likelihood of expressing the likelihood of occurrence of a flood event.
Flood planning area - the area of land below the FPL and thus subject to flood related development controls. The concept of flood planning area generally supersedes the "flood liable land" concept in the 1986 Manual.
Flood planning levels (FPLs) - are the combinations of flood levels (derived from significant historical flood events or floods of specified AEPs) and freeboards selected for floodplain risk management purposes…
Flood prone land - land susceptible to flooding by the PMF event. Flood prone land is synonymous with flood liable land.
Probable Maximum flood (PMF) - the PMF is the largest flood that could conceivably occur at a particular location …"
It is accepted that the entire site, being proximate to the Clyde River, is subjected to significant areal flooding, including in a flood event with a 1:100-year average recurrent interval (ARI) and the probable maximum flood (PMF). The accepted flood planning level (FPL) for purposes of consideration of the application, is established at the 1:100-year ARI plus 0.5m freeboard, being 5.9m Above Height Datum (AHD) for the site. This FPL has been adopted by the experts to establish the minimum habitable floor level of the proposed dwelling. The PMF is assessed as being at 8.05m AHD.
I understand that the applicants' expert, Mr Gray, assesses the 1:100 year ARI flood level as being 3.7 to 4.8m AHD, based on his analysis of historic flood data. He, however, accepts the Council estimate of 5.4m AHD for the purposes of establishing the FPL relating to this application.
The entire area of the site is (topographically) below the FPL. The site is assessed as being within a 'flood planning area', and also below the PMF, therefore on flood prone land. Based on this assessment, the application requires consideration of the relevant flood planning provisions and controls described in the ELEP and NDCP, respectively.
On 14 July 2021, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (hereafter Order 2021), sought to amend an environmental planning instrument relating to flooding provisions, which had the effect of amending the ELEP, by inserting a new cl 5.21 for flood planning. Consequently, pursuant to Sch 1 of the State Environmental Planning Policy Amendment (Flood Planning) 2021, cl 6.5 of the ELEP was repealed.
In submission to the Court, the parties agree that the application is saved from consideration of the new provision, cl 5.21 in the ELEP, by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006, below:
8 Application of amending orders
(1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order.
(2) (Repealed)
(3) In this clause -
amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order.
The parties agree, and I concur that pursuant to Order 2021 or any other legal instrument, the application is jurisdictionally not required to consider the now repealed cl 6.5 of the ELEP, because it was not identified as being 'saved' in either Order 2021 or the State Environmental Planning Policy Amendment (Flood Planning) 2021.
It is also accepted that pursuant to cl 1.8A of the ELEP the repealed cl 6.5 of the ELEP is saved in the consideration of the application, consistent the decision of McColl JA, Basten JA and Payne JA in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189.
The parties agree, and the Court accepts that there are effectively no flood related provisions in the ELEP or controls described in the NDCP that are relevant for consideration of the application.
As there are no jurisdictional requirements in the consideration of the application and relating to the flooding contention, the Court must relies on its merit assessment of the application to inform the determination of the appeal, and, as contended by the respondent, the suitability of the site, pursuant to s 4.15(1)(c) of the EPA Act. This assessment considers the potential risk posed to future residents (and visitors) on the site in the event of flooding.
The following guidance documents, as directed by the experts and tendered in evidence, assist and inform the Court in the merit assessment of the flooding contention:
NSW Floodplain Development Manual, 2005. The management of flood liable land (FDM) (Exhibit 2)
Australian Institute of Disaster Resilience (AIDR) (Exhibit 5)
Managing the Floodplain: A Guide to Best Practice in Flood Risk management in Australia, Handbook 7, 2017
Flood Hazard, Guideline 7-3, 2017
Planning Circular PS 21-006 Considering flooding in land use planning: guidance and statutory requirements (Exhibit 2)
Department of Planning and Environment, Support for Emergency Management Planning, Flood Risk Management Guide EMO1, February 2022 (the EMO1) (Exhibit 5)
Whilst acknowledging there is no jurisdictional requirements to assess flooding, the respondent maintains that the proposed development should have regard to the objectives of cl 5.21, which are consistent with the repealed cl 6.5 of the ELEP. In their joint expert report (Exhibit 5), the flooding experts have considered the objectives of these provisions, although do not agree that they have been addressed by the amended application.
Clause 5.21 of the ELEP is relevantly described below:
5.21 Flood planning
(1) The objectives of this clause are as follows -
(a) to minimise the flood risk to life and property associated with the use of land,
(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,
(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,
(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.
(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development -
(a) is compatible with the flood function and behaviour on the land, and
(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and
(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and
(d) incorporates appropriate measures to manage risk to life in the event of a flood, and
(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters -
(a) the impact of the development on projected changes to flood behaviour as a result of climate change,
(b) the intended design and scale of buildings resulting from the development,
(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,
(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.
(5) In this clause -
Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021.
flood planning area has the same meaning as it has in the Floodplain Development Manual.
Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
I adopt the same approach as the experts and consider the objectives of cl 5.21 of the ELEP from a merit assessment perspective. In consideration of the evidence, I have had regard to the objectives of cl 5.21 (which align with repealed cl 6.5) of the ELEP. For reasons given below, I am satisfied that the objectives of cl 5.21 are addressed by the proposed development.
Establishing the habitable floor level above the agreed FPL (of 5.9m AHD), with the dwelling made of material to withstand the assessed velocity of floodwaters;
Visual siting of floodwaters in Wharf Street, emergency trigger system (with sensor at boundary), and regular updates from Bureau of Meteorology (BoM) and State Emergency Services (SES) alerts; and
Signage and a flood evacuation response plan.
The application relies on a flood evacuation response plan (FERP), as described in Exhibit B, Tab 5, Appendix 7, which was updated on 27 June 2023, as Exhibit N. The signal to evacuate is firstly made when there is an alert by BoM and SES that flooding is expected. The next level of response is triggered when water is observed in Wharf Street and an alarm placed at the western boundary triggers a response is required. If for some reason the residents do not heed the warnings at the appropriate time, they then must shelter in place, either on the first floor of the dwelling, then if floodwaters rise further, in the refuge room or roof, as necessary.
It is accepted that the proposed development does not exacerbate existing flood conditions on and surrounding the site. The experts agree that based on the applicants' flood modelling described in Exhibit B, the proposed development does not result in adverse changes to the flood hazard/behaviour onsite/offsite. I am satisfied that the objectives of cl 5.21(1)(b) and (c) of the ELEP are addressed.
I am satisfied that the proposed location of the dwelling on the site, design and materials of the dwelling are sufficient to withstand the forces of floodwaters. I understand that the application relies on shelter in place if the opportunity to safely evacuate is not taken at the appropriate time before floodwaters inundate the site and surrounding streets.
The experts agree that persons on the site have opportunity to shelter in place or evacuate depending on their willingness to evacuate and timeliness of their response. They disagree whether shelter in place is an appropriate option in consideration of the flood risk.
Travel along Wharf Street then via Braidwood Street is designated as the safe evacuation route for pedestrians and vehicles from the site. After 50 minutes, it is potentially too unsafe for residents to leave the dwelling on the site, due to the sag point in Wharf Street, and therefore persons remaining on the site must shelter in place for the duration of the flood event.
Safe evacuation from the site is deemed feasible when floodwaters are less than 0.3m deep for vehicular access and 0.5m deep for pedestrian access, when measured at the lowest point of the route (sag point in Wharf Street), which is consistent with the hazard categories described in the FDM. To ensure residents are aware of the level of flooding before they proceed through the lowest point on the evacuation route, the parties agreed that by condition of consent (Exhibit 9), the applicants will install a flood level sign on Council land.
In consideration of the evidence, including the assessed depth of floodwaters, velocity for flow, timeframe for inundation and FERP, I am satisfied that the application has addressed the objectives of cl 5.21(1)(a) and (d) of the ELEP. The risk to future residents (and visitors) of the site is sufficiently mitigated by the strategies and measures adopted in the application, together with the agreed conditions of consent.
I am satisfied that residents will have sufficient time to respond in the event of flooding, to make a reasonable and timely decision to evacuate, and if they do not heed the warnings can safely shelter in place for the duration of the flood event. In a catastrophic event such as a PMF or above, if the residents are on the site, they can access the roof where rescue is possible, or they can remain there until it is safe to leave.
[8]
Should the lots in ownership of the applicants be consolidated to promote the orderly economic use and development of the land?
A contention of Council, as explained to the Court, is that due to the potential for adverse flood impact on and surrounding the site, Lots 8 and 9 DP 571676 (together the land), should be consolidated to ensure future development of these lots is constrained to reflect this risk. Consolidation of these lots is deemed by Council to be in the public interest, to promote an orderly economic use and development of the land.
Ms Ireland accepts that there is no jurisdictional requirement to consolidate the land, or to ensure these lots remain in the same ownership. She also accepts that pursuant to Sch 1, cl 15A of the ELEP, only a single dwelling is permissible on this land, being deemed a 'parcel' in cl 15A(1)(d).
Council contends that a constraint in the development of the land is consistent with the aims of the ELEP as described in cl 1.2(2)(e) 'to restrict development of land that is subject to flooding, coastline hazard, bush fires and land slip'.
It is accepted that use of the land must be consistent with the C2 zoning described in cl 2.3 of the ELEP, which includes boat sheds, camping grounds, environmental facilities, oyster aquaculture, roads, sewerage systems, water recreation structures and water supply systems. It is also accepted that by dint of Sch 1, cl 15A, a dwelling house is permissible on the land.
Mr Daintry contends that a constraint to development of the land would be inconsistent with the zoning in cl 2.3 of the ELEP, and does not serve an economic purpose, nor in the public interest. He agrees that a single dwelling is permitted on the (parcel of) land, although considers that Lot 8 is capable of being developed in the future for purposes consistent with the zoning.
I prefer the evidence of Mr Daintry that site consolidation does not serve any reasonable planning purpose. The Lot 8 should not be constrained to be developed in the future for a permissible use, as described in cl 2.3 of the ELEP.
The flood hazard associated with the land was well known before the C2 zoning was imposed on the site and land, and also at the time that the amendments were made to the ELEP in Sch 1 permitted a dwelling on the land. There is no evidence to suggest that future development of the remaining lot (8) in the parcel of land could not be approved for consent by application, consistent with the zoning and after consideration of other relevant provisions of the ELEP. A future development application would be subject to consideration of cl 5.21 of the ELEP, a planning provision specifically applied to address the known flood hazard of the land.
The consolidation of the land, as sought by the Council is unreasonable and is opposed by the applicants.
Based on the merits of my assessment, I find that consolidation of Lots 8 and 9 DP 571676 is not required to promote an orderly economic use and development of the land, and is not in the public interest, pursuant to s 4.15(1)(e) of the EPA Act. Further to this, I find that a dwelling on the site satisfies the relevant aim of cl 1.2(2) of the ELEP '(d) to identify and protect the established residential neighbourhoods and ensure a sufficient supply of suitable land to meet the future residential needs of Eurobodalla', without compromising the other aims of this provision, namely (e).
[9]
Have the resident objections been considered?
Residents were given the opportunity, during notification of the original application to provide written submissions on the application. The submission received has been tendered in evidence (Exhibit 2).
I am satisfied that the residents have had sufficient opportunity to assess the application and address the Court, pursuant to s 4.15(1)(a)(ii) of the EPA Act. I am also satisfied that the issues raised by the objector, have been considered by the experts and where appropriate, are addressed by amendments made to the application, pursuant to s 4.15(1)(d) of the EPA Act.
The objection raised by the resident of 1 Clyde Boulevard to the future use of the land as a carpark to meet Council's needs is not a relevant consideration of the Court. The issues relating to flooding have been appropriately addressed by the amended application. The planning experts are satisfied that the proposed design of the dwelling does not pose any amenity impacts and is consistent with the character of the local area. The Council and Court are satisfied that the dwelling can be serviced with water and sewer services, and the conditions of consent also address these requirements.
I have considered the submission of the resident and am satisfied that the proposed development, as amended, together with the adopted conditions of consent, sufficiently address the concerns raised by the resident, where relevant.
[10]
Conditions
Based on the findings described above, I determine to grant conditional consent to the application as amended, pursuant to ss 4.16(1)(a) and 4.17(1) of the EPA Act. Consent relates to conditions, as described in Annexure A.
I adopt the draft conditions of consent in full as agreed by the parties, which were amended and filed on 27 June 2023, tendered as Exhibit 9.
With regards to condition (31) which remains in dispute, I delete this condition as it relates to site consolidation, which I have determined is not reasonable. I adopt the conditions sought by the applicants, apart from deletion of 'generally' from condition 13(g) to provide certainty.
[11]
Conclusion
The amended application has been assessed, based on the evidence before the Court, including the (amended) supporting plans, documents, agreed conditions of consent, expert reports and submissions from residents.
In determining to grant consent to this amended application, I find that the development application satisfies the requirements of the relevant regulatory instruments, namely and as assessed in this judgment the EPA Act, MEM Act, EPA Reg and ELEP. The reasons for my determination have considered that: the proposed development sufficiently addresses the flood risk associated with the site; a dwelling is suitable on the site; and the proposed development is in the public interest.
I, therefore, determine to grant consent for Development Application DA0371/21, with conditions, pursuant to s 4.16(1)(a) of the EPA Act.
[12]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application DA0371/21 which seeks construction of a two-storey dwelling house and associated civil works on Lot 9 Deposited Plan 571676, also known as 13 Wharf Street, Nelligen is determined by the grant of consent, subject to conditions in Annexure A.
3. The exhibits are retained.
[13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 July 2023
It is my understanding that the application, as amended, seeks to construct a two-storey dwelling with a habitable floor level at 5.9m AHD, at effectively the FPL. There is a part of the proposed dwelling below FPL, which is shown on the amended plans as being for parking, boat storage, workshop and laundry. Incorporated in the amended design of the dwelling is a room that has a floor level of 8.05m AHD, which is identified as a 'flood shelter room'. This room is described by the experts as a 'refuge room' that will have access to emergency potable water supply from a roof top storage tank. This room has direct access to the roof, via a ladder through the skylight. The roof is at 10.62m AHD, above the PMF.
The planning experts agree that the proposed design of the dwelling does not breach any development standards as described in the ELEP or controls in the NDCP, and therefore does not pose any concerns with regards to character of the streetscape. It is agreed that the site was historically zoned for residential development, and that the site is located within an existing village.
It is known that the site floods in a 1:100-year (ARI) event and larger floods. It is unknown how affected the site is in smaller flood events. The 1:100-year ARI flood and PMF events are agreed to be the key events that could pose a serious risk to human life and from a planning perspective, the application should be assessed against.
I understand that the experts have considered three separate flood models relating to the site, including the initial and revised site-specific models that form part of the (amended) application, and a 'GHD' model relating to a new bridge nearby the site. Before joint conferencing, Ms Mallard also had the opportunity to consider a peer review undertaken on the initial model results by Southeast engineering and environment, dated March 2021 (Southeast review) (Exhibit 3). This was not shared with Mr Gray until the start of the hearing, and did not form part of the discussion in joint conferencing.
In consideration of the flood modelling in evidence, I find that the most reliable data to inform my assessment of the application is derived from the flood model by GRC Hydro, dated 28 October 2022 (Exhibit B). This model builds upon a more considered understanding of the amended application and flood conditions relating to the site. The 'GHD' model and Southeast review are of limited value (and weight) in my assessment, by relating to broader catchment wide studies, not related to the scope of this application and consider irrelevant planning frameworks.
With regards to the accuracy of flood modelling, I prefer the evidence of Mr Gray, and accept that the flood model results provided in Exhibit B are sufficiently accurate to inform my assessment.
Based on the evidence of Mr Gray, it is understood that once floodwaters reach the rear boundary of the site, where floodwaters will likely first arrive, in a 1:100 ARI flood event, there is a window of between 50 minutes to 2 hours for residents to safely evacuate along Wharf Street. The floodwaters are expected to remain a risk to residents remaining on the site for 12-14 hours in a 1:100-year ARI flood event, and for 12 hours in a PMF event.
Mr Gray assesses that the velocity of floodwaters flowing across the proposed evacuation route could be up to 2 m/s in a 1:100-year ARI flood event and PMF event, and likely lower in more frequent flood events, due to being mainly backwater.
To mitigate the known risks to persons and property associated with flooding on and around the site, the amended application relies on a number of strategies, including:
The proposed dwelling is located within the village of Nelligen, where several existing residences will be in a similar situation to become flooded. There is also a part of the village that remains above the PMF. Residents on the site will not be isolated, and I would expect that in such a small community, there will be assistance at hand to those in need without reliance solely on the SES for assistance. In this context, a dwelling on the site would not pose any additional or unreasonable risk to responders, which is a valid and significant concern of the SES.
I find that the flood risk associated with the site is sufficiently mitigated and that there is no inconsistency with the guidance provided in the FDM, AIDR, EMO1 and by the SES. It is appreciated that dwellings located on flood prone land pose a risk to residents and responders. However, in this situation, I assess that the application relies on sufficient strategies and measures to mitigate the risk to a level that residents can make an informed decision.
In this situation, I am satisfied that reliance on a private flood plan is reasonable and appropriate. The measures that the application has adopted to mitigate risk to persons recognises the flood hazard, changing circumstances that flooding presents and the need to respond appropriately to the conditions. The measures adopted in the application are informed by appropriate assessment of the flood conditions.
Based on the evidence before the Court, I have considered and am satisfied that the proposed dwelling is suitable for the site, pursuant to s 4.15(1)(c) of the EPA Act.