The Trustee for BCA Unit Trust v Blacktown City Council

Cases Cited: Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526

Texts Cited: Blacktown City Council Growth Centre Precincts Development Control Plan 2010
Blacktown Development Control Plan 2015
NSW Department of Planning, Infrastructure and Environment, Child Care Planning Guidelines: Delivering quality child care for NSW, September 2021
NSW Department of Planning, Housing and Infrastructure, Shelter in Place Guideline for Flash Flooding, 2024

Category: Principal judgment

Parties: The Trustee for BCA Unit Trust v Blacktown City Council (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
Mr AM Pickles SC (Applicant)
Mr G Farland (Respondent)
Solicitors:
Conomos Legal (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s): 2024/348796

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER**:** This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No DA-24-00518 for demolition and construction of a two-storey child care centre including basement parking for 26 cars (13 staff and 13 visitor spaces including 1 disabled space) on land known as 2 Galbraith Street, Nirimba Fields (Lot 1 in DP 1221556) (the Site) by Blacktown City Council (Council). The proposed child care centre is to accommodate a total of 76 children comprising 20 x 0-2 years, 24 x 2-3 years and 32 x 3-5 years in addition to 14 educators and 1 cook.

2. The key issue in the proceedings is the suitability of the site for the proposed child care centre use having regard to the risk to life from flash flooding as a result of overland flooding. The proposal relies on a Flood Evacuation Response Plan (FERP) (Ex E) which outlines a shelter in place strategy for overland flooding.

3. For the reasons set out below, I have determined that the site is not suitable for the proposed childcare centre use having regard to overland flooding and risk to life and accordingly the application is refused.

The site and locality

4. The site comprises an irregular, triangular shaped lot legally descried as Lot 1 in DP 1221556 with an area of 1,512m2. The site has frontages to Galbraith Street and Voysey Close to the west (4.945m), and Quakers Road to the north east (44.53m). Quakers Hill Parkway is generally to the south with an unformed part of Voysey Close and nature strip being located between the site and Quakers Hill Parkway (refer Figures 1 and 2 below). The site’s northern boundary (60.01m) adjoins dwelling houses at 6 and 8 Galbraith Street (battleaxe block) and on the southern boundary the unformed Voysey Close having a dimension of 65.755m. The site is generally surrounded by low density detached residential development. Access to the site is only available from Galbraith Street to the west with no access being available to or from Quakers Hill Parkway or Quakers Road both of which are classified roads.

5. An existing substation is located along the southern boundary on Voysey Close. The site is burdened by a (3.050m wide) grassed drainage easement which runs along the northern boundary of the site towards Galbraith Street, which conveys overland (stormwater) flow and also contains stormwater infrastructure (pipes and pits). The site is affected by three forms of flooding: riverine flooding from Eastern Creek and the Hawkesbury River and local overland flooding. The overland flooding originates from two main sub-catchments, one to the north east (generally aligned with Pacific Road) and one to the east (generally aligned to Quakers Hill Parkway and Quakers Road).

Figure 1: Aerial image of site (Ex 1)

Figure 2: Locality Map (Ex 1)

The proposal

6. The proposal before the Court can be summarised as follows:

7. Demolition of existing dwellings;

8. Tree removal;

9. Construction of a two-storey child care centre to accommodate a total of 76 children, with the following groups:

(a) 0-2 years: 20 places; (b) 2-3 years: 24 places; (c) 3-5 years: 32 places.

1. Basement level car parking providing a total of 26 car spaces (13 staff and 13 visitors, including 1 disabled space);

2. Landscaping and 1.8m to 2.4m acoustic fence;

3. Proposed hours of operation from 7:00am to 6:00pm, Monday to Friday, with the facility to provide a total of 14 educators and 1 cook; and

4. Basement entry/driveway ramp is proposed to be constructed over road reserve.

5. Due to flood affectation the proposed centre is to be built over a flood void area with a height of 1.1m which sits above the basement car park and which is designed to provide for the conveyance of overland flooding beneath the childcare centre.

6. The application includes a Flood Evacuation Response Plan (FERP) (Ex E) which provides for flood evacuation during riverine floods and implements a shelter in place strategy for flash flooding which results from overland flooding.

Planning Framework

9. The primary environmental planning instrument applying to the site is State Environmental Planning Policy (Precincts – Central River City) 2021 (Precincts SEPP) in accordance with which the provisions of Appendix 9 Schofields Precincts Plan 2012 (Precinct Plan) apply.

10. Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (GCPDCP) also applies.

11. Notably Blacktown Local Environmental Plan 2015 (BLEP) does not apply to the site as it is repealed by s 1.8 of the Precinct Plan. However, some parts of Blacktown Development Control Plan 2015 (BDCP) apply to the site by reference in the GCPDCP.

12. As outlined below the key issue in this matter relates to flooding from overland flow and flood risk. Accordingly, the key planning controls relevant to this issue are set out below.

13. The site is zoned R2 Low Density Residential under the Precinct Plan. Centre-based child care facilities are permissible with consent in the R2 zone. The objectives of the zone are:

14. To provide for the housing needs of the community within a low density residential environment.

15. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

16. To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

17. To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

18. Section 3.26 of the Precincts SEPP applies to development on flood prone and major creeks land however does not apply to the site as the land is not mapped as being flood prone under the SEPP. However, it is noted that the relevant SEPP flood maps were prepared in 2012 and as agreed by the parties are out of date. Council has undertaken more recent flood assessment both in respect of riverine and overland flooding and accordingly has prepared more up to date mapping for the local government area. This is provided in its online mapping which identifies that the site is partially within a ‘Flood Extents Medium Flood Risk Precinct’ and partially within a ‘Flood Extents Low Flood Risk Precinct’. These precincts generally relate to riverine flood and are defined as follows:

Riverine Medium Risk Flood Precinct – Equivalent to the flood planning area, except for areas that have already been identified as not within the high flood risk precinct. The freeboard used is 500mm.

Riverine Low Risk Flood Precinct – Equivalent to flood prone land. This includes all land that is flood affected by riverine flooding in some capacity, up to and including the PMF, except areas that have already been identified as being within the high or medium risk precinct.

15. The parties agree that merit assessment of the proposal in respect of flooding (in addition to other matters) should be undertaken in accordance with s 4.15(1) of the EPA Act (primarily in respect of site suitability and likely impacts) but that s 3.26 of the Precincts SEPP and cl 5.21 of BLEP, although not technically applicable provide relevant principles for consideration. Section 4.15(1) provides:

(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 significant 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.

16. Section 3.26(2) of the Precinct SEPP provides:

(2) Consent is not to be granted to the carrying out of development to which this section applies unless the consent authority has taken the following into consideration—

(a) whether or not the development will adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties,

(b) whether or not the development will alter flow distributions and velocities to the detriment of other properties or the environment of the floodplain,

(c) whether the development will enable safe occupation of the flood prone and major creeks land,

(d) whether or not the development will detrimentally affect the floodplain environment or cause avoidable erosion, siltation, salinity, destruction of riparian vegetation or a reduction in the stability of the riverbank/watercourse,

(e) whether or not the development will be likely to result in unsustainable social and economic costs to the flood affected community or general community, as a consequence of flooding,

(f) whether or not the development is compatible with the flow conveyance function of the floodway,

(g) whether or not the development is compatible with the flood hazard,

(h) in the case of development consisting of the excavation or filling of land, whether or not the development—

(i) will detrimentally affect the existing drainage patterns and soil stability in the locality, and

(ii) will significantly impact on the likely future use or redevelopment of the land, and

(iii) will adversely impact on the existing and likely amenity of adjoining properties, and

(iv) will minimise the disturbance of relics, and

(v) will adversely impact on any watercourse, drinking water catchment or environmentally sensitive area.

17. Further s 5.21 of BLEP provides:

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the 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.

18. As noted above, the Precincts SEPP does not include the subject land in its mapping as flood prone land however updated flood mapping is available from the Council. Notwithstanding, provisions of the GCPDCP relevant to flooding apply as they are not limited to flood liable land mapped under the SEPP. Relevant provisions include s 2.3.1.3 in respect of subdivision and particularly development of land within a floodway (although there is disagreement between the parties as to whether the site is within a floodway) and s 4.4.2 in respect of child care centres (and which incorporates the provisions of BDCP Part C, s 8.3 Child Care Facilities). The Applicant, The Trustee for BCA Unit Trust (BCA Unit Trust) refers to the objectives of s 8.3 which include:

a. To ensure all local communities have convenient access to high quality child care services, and

b. to ensure that child care centres provide a safe, healthy and active environment for children of all ages.

19. Council refers to cl 4.4.2.4 in respect of site selection and location and which indicates that child care centres are not appropriate on the following land:

Flood liable land or land affected by local overland flooding (refer to clause 2.3.1)

20. State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) also applies to child care centres. In accordance with s 3.23 of the TI SEPP before determining a development application for a centre based child care centre the consent authority must take into consideration any applicable provision of the Child Care Planning Guidelines 2021 (Department of Planning, Infrastructure and Environment, October 2021) (CCPG).

21. There are other statutory provisions applicable to the proposal however the above summarises the key provisions relevant to the outstanding matters in contention between the parties.

Public submissions

22. The original application was notified between 29 August and 12 September 2024 with a total of five submissions received by way of objection. Following amendment of the application in August 2025 the application was renotified from 8 to 22 September 2025. Three submissions by way of objection were received in respect of the amended application. In addition, the Court was addressed by six resident objectors at the commencement of the hearing on site. In summary, key issues raised by the objectors include: traffic, access and parking, noise, privacy and amenity, bulk and scale, overshadowing, security and flooding and fire evacuation.

The expert evidence

23. Expert evidence was adduced in the appeal in respect of (1) town planning and (2) flooding and stormwater matters. The expert town planning evidence was given in a joint expert report (Town Planning JER) prepared by David Waghorn engaged by BCA Unit Trust and Nabila Sarwary engaged by Council. Oral evidence was also given.

24. Expert evidence in respect of flooding and stormwater matters was given in a joint expert report (Flooding JER) by Samer El Haddad (stormwater) and Steven Molino (flooding) both engaged by BCA Unit Trust and Rhys Thomson engaged by the Council. Oral evidence was also given at the hearing.

Contentions

25. As a result of amendments to the development application, together with the evidence in the joint expert reports and agreed conditions of consent, Council agreed that a number of the contentions had been resolved.

26. The remaining contentions in dispute are:

27. 1 - Flood risk and site suitability;

28. 2 – Site selection and location;

29. 6 – Drainage / flooding matters;

30. 7 – Flood modelling; and

31. 9 – Additional matters (limited to potential contamination in the undercroft area / flood void).

32. Notably the parties agree that the proposed FERP is adequate in respect of riverine flood during which the centre would be evacuated with adequate warning.

Key Issues

28. The key issues in the case are therefore flooding, risk to life and site suitability. In summary the Council in its closing submissions put that the proposal should be refused primarily having regard to flood issues including:

29. The FERP is unworkable particularly the shelter in place strategy proposed for flash flooding which occurs as a result of overland flooding with very little warning.

30. The flooding analysis undertaken on behalf of BCA Unit Trust, which the respondent says is flawed, demonstrates that there are adverse flooding impacts from the development, particularly at the entrance to 8 Galbraith Street.

31. The flooding impacts make the site unsuitable for a child care centre.

32. In the alternative BCA Unit Trust in its closing submission put, in summary, that:

33. The FERP proposes a suitable shelter in place strategy in the event of overland flooding during which time children and staff would be safe and above the flood level. This would be for a limited period and the FERP includes measures to advise parents and carers that the children are safe and not to attempt to access the centre through flood waters. BCA Unit Trust says that Council’s concern about risk only considers potential consequence and not probability.

34. There is no adverse flood impact from the development at the entrance to the neighbouring property at 8 Galbraith Street which has been modelled as having a 90% blockage factor given the existing block wall with Colourbond gate with brush extruder at the base.

35. The site is suitable for a child care centre having regard to all relevant considerations.

36. As noted at [5] the parties agree that the site is affected by three forms of flooding: riverine flooding from Eastern Creek and the Hawkesbury River and local overland flooding. These matters are addressed separately below.

Riverine flood

31. In respect of riverine flood, in the Hawkesbury River PMF (which the parties agree is most appropriate to consider) the site is completely inundated to a height of RL 30.6 where the upper floor of the development will have an RL of 29.7.

32. Notwithstanding this maximum level of affectation, the flood experts agree in the Flood JER (Ex 7) that the proposed evacuation strategy outlined in the FERP (Ex F) is appropriate given that there is likely to be 15 hours notice of such an event during which time the centre can be evacuated and closed. Mr Molino and Mr Thomson are satisfied that in the case of riverine flood the risk can be managed through the FERP (Ex 7, p 8).

Overland flooding

33. In respect of overland flooding the site is inundated from two sub-catchments: to the north east (7.9 ha) and one to the east (11.15 ha). As outlined in the Flood JER (Ex 7, p 7) under existing conditions catchment runoff arrives at the site from the direction of Pacific Road as well as via flows that overtop Quakers Hill Parkway from the east. As advised by the experts overland flooding is caused on the site by either a storm cell within prolonged rainfall or an intense cloud burst during which the existing drainage system would be overwhelmed resulting in overland flooding across the site. In these circumstances the modelling indicates that the peak flood would occur in less than 15 - 20 minutes (potentially within 5 minutes) and would have a duration of less than one hour. Flood depths could be up to 1m on site and have high velocities particularly at the site frontage on Galbraith Street where the hazard level would increase to H4 (adjacent to the stormwater easement) in the PMF.

34. The FERP (Ex E) proposes a different response for overland and riverine flooding noting:

Overland flooding and riverine flooding present different frequency and durations for access being cut to the site and so this FERP presents two flood emergency response strategies (FERS):

Shelter in place for short duration overland flooding. Access to the building will be cut off for less than one hour so it is appropriate to advise parents or carers not to come to the centre, and for anyone of[f] site to stay in the building, until the water has receded.

Close the centre when the forecast river level at Windsor will reach 20m or creek flooding has reached the intersection of Arkell Street and Voysey Close and do not reopen until advised that there is no more flooding on the Hawkesbury Nepean River system. (Ex F, p 26)

35. The FERP identifies ‘triggers for action’ and ‘actions’ before a flood, during a flood and after a flood which vary in respect of riverine flooding and overland flooding. Generally, the experts agree that for riverine flooding sufficient time and warning exists to provide for the safe evacuation of the site and for the site to be closed until such time as the flooding has ceased and it is safe to return. However in respect of overland flooding the FERP provides for a shelter in place strategy and seeks to implement a system where staff observe an imminent flood, move children inside from the play area and notify parents and carers that while the site will be cut off, the children are safe, the duration will be short and not to come to the Centre but rather to wait until the flood recedes (which should be less than an hour). Notably given the short time frame between a flood event and flooding of the site, no alarm system is available. Whilst the FERP identifies that there may be alerts from the Bureau of Meteorology or the Department of Education, generally it will be up to staff to observe an imminent flood and take action in accordance with the FERP procedures.

Risk to life

36. As outlined above both parties agree that risk to life can be appropriately managed via the FERP for riverine flooding. In relation to overland flooding Mr Molino (engaged by BCA Unit Trust) states at p 9 – 10 of Ex 7 that he is of the opinion that with regard to overland flows the proposed development can be managed in a way that satisfies s 5.21(2) (c) and (d) of BLEP (see above at [17]) as:

a. The operating hours mean that the premises are not open for more than 11 hours in any day and are only open 55 hours per week. Taking into account public holidays and weekends, the child care centre will be only open for 251 out of 365 days in any year and 2,761 hours per year which represents less than 1/3 of the hours in a year.

b. This means that a 1 in 5 (20%) AEP overland flood would have about a 1 in 15 chance of occurring when the centre is open and a 1 in 100 (1%) AEP event about a 1 in 300 chance. A PMF in a small catchment such as this is likely to have less than a 1 in a million chance of occurring in any year and so less than a 1 in 3 million chance of occurring when the centre is open.

c. Given the short duration of even the most extreme events (less than one hour), the probability of overland flooding occurring when children are being dropped off or picked up is even more remote

d. While there may be little warning of an overland flow event occurring, it is unlikely that it will occur without some preceding rainfall. Accordingly, it is most likely that children will all be inside out of the rain prior to the event occurring

e. Even a PMF overland flow event will not enter any habitable parts of the building or the basement car park so all building occupants can safely shelter within the building until the water has receded.

f. Even an overland flow event a large as a PMF is unlikely to last for more than one hour so it will be easy to keep the children occupied indoors with normal activities

g. Overland flows first cut access to the site when they cross Quakers Road north of the site. This is hundreds of metres by vehicle from the site and presents no greater risk to caregivers trying access the site than flooding which could cut their route more distant from the site. It highly unlikely that anyone will be access the front of the premises in Galbraith Street during an extreme overland flow event.

h. The proposed FERP (Attachment B) provides measures to inform care givers not to drop off or pick up children when there is local flooding and assure them that it will be a short delay with no financial penalty.

37. Mr Thomson engaged by the Council states at p 10 of Ex 7 that he is of the opinion that the risks associated with overland flows and the development as proposed cannot be managed appropriately through the FERP and that the proposed development puts up to 76 children (together with their parents and carers) together with 14 staff, at risk in an area that is identified to be high hazard overland flow in a PMF overland flow event. He states that he therefore does not believe it is consistent with s 5.21(2) (c) and (d) and 5.21(3) (c) of BLEP. Further at p 11 – 15 of Ex 7 he opines that:

32. An overview of the overland flows through the site for the 1% AEP and above are provided in Figure 3. Overland flows pass through either the easement adjacent to the site (to the north), or via the flood void through the site. These flows are subsequently concentrated toward the western end of the proposed development on Galbraith Street, which also happens to be where both the carpark entry and the pedestrian entry for the development are located (refer Figure 4 and Figure 5). In the PMF event, hazard in and around this area is between H4 to H5, as shown in Figure 6. This is an area that would be at a minimum “unsafe for people and vehicles” as per the hazard vulnerability curves (Figure 7).

33. The PMF flows estimated by SGC would suggest that the PMF may peak in 15 minutes from the commencement of rainfall. A further review of the PMF model results show a rapid rate of rise. Figure 8 shows the PMF depths on Galbraith Street in front of the easement. While the peak flood level occurs around 15 minutes, the flood reaches 0.5 metres in less than 5 minutes from the commencement of rainfall, leaving little to no warning time available prior to the flood event.

34. While the FERP suggests monitoring rainfall and Bureau of Meteorology (BOM) warnings, there is no guarantee that these will provide significant additional warning time beyond 5 minutes noted above. The types of storms associated with these scale events often have little lead time or warning. Even in the situation where a severe storm is preceded by broader rainfall, it is unclear in the FERP:

(a) How the Chief Warden might determine what “intense rainfall” is relative to “normal rainfall”;

(b) Even if they have received a BOM warning or have identified “intense rainfall”, the only action at that point is to warn staff of potential flooding and to monitor roads every 2 hours (which is longer than the potential duration of some of the flood events);

(c) The only trigger for action is once flooding is observed in Quakers Road or Galbraith Street, by which time there would be less than 5 minutes to respond.

35. Childcare centres face significant challenges in flood-prone areas that make safe and practical operation difficult. Childcare facilities have extended pick-up and drop-off windows throughout the day to accommodate parents’ work schedules, including shift work. This means children and carers may arrive or depart during a flood event, increasing exposure to danger and complicating emergency response efforts.

36.Given the short potential lead times (potentially less than 5 minutes), it is unrealistic to expect parents and carers to fully comply with a FERP during such events. Also, carers who are not listed as authorised contacts may be responsible for collecting children on any given day, creating further confusion and safety risks. These factors make controlled evacuation or shelter-in-place strategies extremely difficult to implement under any FERP.

37 While Quakers Road may become impassable to cars during a flood event, the very fast rate of rise (less than 5 minutes) could easily result in parents and carers arriving by vehicle to have travelled past that location. Further, parents and carers may not act rationally and may attempt to traverse Quakers Road even when it is impassable, particularly when the child care centre with their children is visibly surrounded by water.

38 It is also unreasonable to assume that all parents and carers will use cars to pickup children, and may approach from a range of directions for pedestrian access.

39 The ability for the Chief Warden to identify the potential risk, make the decision for action, and to notify staff and parents/ carers (even through an app), and for the parents and carers to take appropriate action is limited given the timeframes (again, potentially less than 5 minutes).

40 Additionally, childcare operations may be vulnerable to high rates of personal leave (due to frequent exposure to illnesses) as well as casual staffing. This increases the likelihood that flood wardens or staff familiar with the operations are away during the event. The combination of unpredictable staffing, extended operating hours, and uncontrollable behaviour of children and their carers during emergencies creates unacceptable safety risks for children and staff.

41 The latest guidance from ARR2019 version 4.2 suggests that severe rainfall events will become more frequent. Table 3 shows the changes in frequency of the previous ARR2019 flood estimates (consistent with the SGC analysis, refer contention 13a) and near-term (2030) and long-term (2090) under an SSP3-7.0 climate scenario. This suggests that the risks associated with more extreme events will only continue to increase and become more frequent over the foreseeable operations of the child care centre, increasing the risk over time

Consideration

38. While the parties presented a myriad of arguments in relation to other matters I consider that the key issue to be determined, in accordance with the matters for consideration set out at 4.15(1) of the EPA Act, including most relevantly (c) the suitability of the site for the development and (e) the public interest, is the appropriateness of the proposal having regard to the risk to life from flash flooding as a result of overland flooding and the ability of the proposed FERP to mitigate that risk.

39. The other matters raised by the parties included, but were not limited to, the appropriateness of the flood modelling and flood void, whether climate change should be included in the flood modelling, whether the site should be considered to be a floodway and whether the proposed development will change the nature of the flood function on site, the impact on adjacent roadways and on the neighbouring property at 8 Galbraith Road and the consistency of the proposal with the identified planning controls albeit that they are not technically applicable.

40. BCA Unit Trust argued that risk is a factor of consequence and probability and that having regard to these matters the risk resulting from the proposed development is low. I am however persuaded by Mr Thomson’s evidence that the risk to life is not acceptable in this instance and that it is not appropriate for the site to be developed for the purposes of a child care centre which is a sensitive use. I accept that flash flooding will occur as a result of overland flows affecting the site and the site’s existing flood function and that while the flooding impact will likely be limited to less than an hour in duration, there will be little warning of the impending flood with floodwaters rising rapidly. I also accept that given the site configuration the flood waters will be concentrated at the western end on Galbraith Street in the location of the carpark and pedestrian entries and that in the PMF event, the hazard in and around this area would be between H4 to H5 (currently H1 to H2 low hazard in the 1:100 ARI) with flooding up to 1m with high velocities. Accordingly, I agree that the area would be unsafe for people and vehicles during such a flood event.

41. I am not satisfied that the FERP can adequately mitigate the risk to life that would result from locating a child care centre on the subject site. In particular it is clear that the FERP outlines detailed procedures which would need to be scrupulously followed in the event of overland flooding to ensure the safety of people on site (including young children and staff) and people off site (carers / parents etc) who may panic in the knowledge that the centre is cut off by flood waters even if only for a limited time period. I agree that when faced with this situation, notwithstanding communication to the contrary, parents, grandparents or other carers may panic and seek to pick up children and thus travel through floodwaters to access the centre. Further, with the very limited amount of warning potentially available of this form of flooding, I am not satisfied that staff would have adequate time to (1) observe the flood risk, (2) secure the safety of the children on site and (3) send relevant communications to care givers advising that the children are safe and not to attempt to access the site. I also accept that there is a risk that confusion may result from the FERP prescribing different procedures in the case of riverine and overland flooding and that this may lead to carers not adhering to the proper protocol and thus placing themselves and/or the children at risk.

42. Notably both parties refer to the Shelter in Place Guideline for Flash Flooding (NSW Department of Planning, Housing and Infrastructure, 2024) (the Guideline) (Ex 2, Tab 7) which aims to assist consent authorities to undertake site specific risk-based assessment to assess if shelter in place is a suitable emergency management strategy for development proposed in a flash flood environment. In reaching my decision I have considered the Guideline which notes that flash flooding can be more dangerous than long duration flooding largely due to the rapid changes in velocities and depths of water and very short or minimal warning time providing limited opportunity for communities to respond to a flood threat in an appropriate and timely manner (p 1). I note that the Guideline states that it considers shelter in place where flash flooding is the only flood risk present at the site (p 2). This is not the only risk applicable in the current situation. I consider that as more than one flood risk applies to the site there is an increased potential for confusion which may lead to behaviour that is not in compliance with the FERP. This is consistent with the findings of Walsh C in Zaki P**roperty Pty Ltd v Wollongong City Council [2022] NSWLEC 1526 who, when considering the effectiveness of a FERP in mitigating risk, commented at par 82 that:

There seems to me to be a number of settings where third parties either dropping off or picking up children in care might act in unexpected ways, beyond the capacities for FERPs to address, which bring about flooding related risks. There may well be others but some of these settings include:

(1) Flood coincides with a situation where the individual responsible for drop off is under particular pressures and has no readily apparent option other than to drop off the child (e.g. those under pressures at work which make dropping of the child an acute need). They may believe, against the FERP ambitions, that there’s a chance to drop off the child before the flood is problematic.

(2) Flood event coincides with a situation where the individual responsible for pick up is under pressures which have a relationship to picking up the child at a certain time (e.g. due to other care responsibilities). They may seek to turn up at the centre, again against FERP ambitions.

(3) The parent or other individual responsible for drop off / pick up otherwise ignores the directions on flood risk and non-attendance, for example due to anxiety in relation to children in care during the flood risk event.

(4) Flood event coinciding with a situation where an individual generally responsible for day to day drop off and pick-up of children is not available and, no doubt against the FERP principles, the person doing duties for that day is not aware of the flood event protocols.

43. Walsh C further comments at par 83 that “these situations may involve people behaving irrationally, but none of these situations necessarily present as particularly unreasonable, or as unlikely behaviours, in my opinion” and further “that it is necessary to consider both the potential for such situations to occur and the implications should they do so”.

44. I would add to the potential settings identified by Walsh C, relevant to the current case, the setting where confusion occurs between the protocols outlined in the FERP for riverine flood, that is, evacuation and centre closure and overland flooding, that is shelter in place.

45. The Guideline states that:

When considering shelter in place, consent authorities should take a risk based approach that is informed by the proposal’s scale and establishes controls and mitigation measures that reflect the duration and depth of modelled flooding up to the PMF…

and that

… In addition to this, the following will help guide consent authority when initially assessing if shelter in place is an appropriate emergency management strategy for the site:

…

3. does the development include medical centres, emergency service and community facilities, and sensitive and hazardous land uses, some of which may not be suitable for shelter in place…

46. The proposed child care centre is a sensitive land use and if approved would place a significant number of vulnerable members of the community, and their carers, at risk from flooding. I find that the proposed FERP cannot adequately mitigate this risk as it relies heavily on scrupulous compliance with numerous procedures and protocols by both staff and parent / carers that is essential to the safe operation of the Centre and cannot be guaranteed. Further the consequence of an adverse event occurring in this situation is unacceptable.

47. Accordingly, I find having regard to s 4.15 of the EPA Act that the proposed development is not suitable for the proposed childcare centre use having regard to overland flooding and risk to life and is not in the public interest. Accordingly, the application is refused.

Orders

48. The Court orders that:

49. The appeal is dismissed.

50. Development application DA-24-00518 for demolition and construction of a two-storey child care centre including basement parking for 26 cars (13 staff and 13 visitor spaces including 1 disabled space) on land known as 2 Galbraith Street, Nirimba Fields (Lot 1 in DP 1221556) is refused.

51. The Exhibits, other than Exhibit C and 1, are returned.

H Miller

Acting Commissioner of the Court

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