Ward v Port Stephens Council

Land and Environment Court (NSW)|2022-02-17

cyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Gardiner v Central Coast Council [2022] NSWLEC 1007 OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Texts Cited: Department of Infrastructure, Planning and Natural Resources, Floodplain Development Manual: the management of flood liable land (2005) Planning for Bush Fire Protection 2019 Port Stephens Community Participation Plan Port Stephens Development Control Plan 2014 Category: Principal judgment Parties: Neil Andrew Ward (First Applicant) Bronwyn Patricia Ward (Second Applicant) Port Stephens Council (Respondent) Representation: Counsel: M Staunton (Applicants) H Irish (Respondent)

Solicitors: Peter Evans & Associates Solicitors (Applicants) Local Government Legal (Respondent) File Number(s): 2021/285440 Publication restriction: Nil

Section 4.14 of the Environmental Planning and Assessment Act 1979 (EPA Act) - consultation and development consent - certain bush fire prone land

The proposed development is within mapped bush fire prone land and conformed to the specifications of Planning for Bush Fire Protection 2019.
The development engineer considered that an appropriate Bushfire Attack Level (BAL) and the provision of an asset protection zone would be required.
Consent authorities when they evaluate development applications are required to apply s 4.15 of the EPA Act and address the matters for consideration specified in s 4.15(1)(a): (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…
In this case, the matters in s 4.15(1)(a)(i) and(iii) are of particular relevance.
The development engineer in their assessment considered: 1. State Environmental Planning Policy (Coastal Management) 2018: This is now incorporated into Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). 1. The assessment concluded that the proposed development was compliant with the Resilience and Hazards SEPP and was unlikely to cause negative impacts. Issues relating to waste management, sediment control and surface runoff could be addressed by conditions of consent. The officers considered that an approval under s 68 of the Local Government Act 1993 would be required to ensure sewage would be appropriately managed. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. A valid BASIX certificate was supplied with the application. 1. State Environmental Planning Policy No 55 - Remediation of Land: This is now included as Ch 4 of the Resilience and Hazards SEPP. 1. The development engineer considered that the application was compliant and that there were no previous records of contamination. 1. State Environmental Planning Policy (Koala Habitat Protection) 2019: This is now Ch 3 in State Environmental Planning Policy (Biodiversity & Conservation) 2021. 1. The site is mainly cleared and the application does not include the removal of natural vegetation and is not expected to impact on koala habitat. 1. The applicable Local Environmental Plan at the time the application was submitted was Port Stephens Local Environmental Plan 2013 (PSLEP), of which a number of clauses apply to the proposed development. 1. The site is on land zoned RU1 Primary Production. The proposed development is for a dwelling and is permissible with consent in the RU1 zone (PSLEP cl 2.1). 2. Clause 4.2B(3)(b) provides that the lot receives a dwelling entitlement as the lot was created prior to the commencement of PSLEP and has an area greater than 4000m2. 3. There is no maximum building height specified in cl 4.3 for land in the RU1 zone. The development engineer was satisfied, given the height of existing buildings in the wider area, that the objectives of cl 4.3 were met. 4. No heritage items, archaeological site, aboriginal objects or places or conservation areas have been identified on the subject site so cl 5.10 is satisfied. 5. Clause 7.1 is in Pt 7 of PSLEP (the Special Local Provisions) and relates to Acid Sulfate Soils (ASS). 1. The site is mapped as containing potential Class 3 Acid Sulfate Soils. The DA does not identify any earthworks extending below 1m depth, so it is expected that even if ASS were present they would not be disturbed, so no ASS management report is required. 1. Clause 7.2 deals with earthworks. Earthworks are part of the application but the development engineer considered that standard conditions of consent would be applied in the event consent was granted and no extra measures were needed. 2. Clause 7.3 addressed development within flood planning areas. This clause has now been repealed but at the time the application was made read: 7.3 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause - flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.
The development engineer's assessment concluded that the proposed dwelling was not compatible with the flood category of the site and should be refused.
This was the core issue in the appeal and will be considered further later in this judgment.
Clause 7.6 of PSLEP required that development consent must not be granted unless the consent authority is satisfied that services "that are essential for the development are available or that adequate arrangements have been made to make them available when required".
Vehicular access and electricity were available, and the Applicants listed appropriate methods for the provision of water, sewer and stormwater services, as reticulated services were not available.
The applicable Development Control Plan when the application was made was Port Stephens Development Control Plan 2014 (PSDCP). This has since been amended. At the time of the initial assessment of the application the provisions of the PSDCP in relation to flooding were given considerable attention.
Section 4.15(1)(b) of the EPA Act requires that the consent authority consider the likely impact on the environment of the proposal. The development engineer considered that the proposal would result in flood isolation during floods smaller than the future 1% ARI and would place additional people at risk during floods and impose an extra burden on the State Emergency Services (SES).
Section 4.15(1)(c) requires consideration of the suitability of the site. Although the zoning of the site (RU1) would permit the development with consent, the assessment considered that due to the identified flood hazard the proposal was not a suitable outcome for the site.
Section 4.15(1)(e) requires that the consent authority consider the public interest. The Council officer considered that granting consent was not in the public interest due to the development not being suitable due to the flood risk.

The proceedings

The matter was allocated by the Court to conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act), as the application was for a single dwelling. I presided at the conciliation conference which commenced on 16 February 2022, by AVL because of the procedures implemented during COVID-19.
While there was lengthy discussion between the parties, and between their experts, no resolution was reached, so I terminated the conciliation conference and the matter was continued on 17 February 2022 as a hearing, again by AVL. Neither the Court nor the parties and their experts took part in a joint site inspection. This was an inevitable consequence of the COVID-19 restrictions. Although there was no combined inspection by parties and experts, the parties have long experience of the area, and the experts had also visited the area on other occasions and were very familiar with the area and the issues. The documents in evidence were well illustrated so the Court could gain an appreciation of the features of the area and of the issues.
The proceedings were an appeal against the refusal by the Council on 30 April 2022 of the DA lodged by the Applicants on 8 March 2019 for a dwelling house (a single storey dwelling) to be situated on Lot 51 in DP 125064 with the street address of 1 Swanreach Road, Hinton. There is an already approved mound on Lot 51.
Earth mounds are a feature of the landscape over a much larger area than the subject site. They are structures for which development consent is required. The purpose of construction of mounds was primarily to provide flood relief for livestock (predominantly cattle). In the case of the mound on Lot 51, the Applicants have made clear their intent to provide a mound to facilitate the development of a single dwelling. The Applicants had lodged on 18 September 2018 their development application seeking consent for the construction of a flood mound (development application no. 16-2018-621-1) (Mound DA). The application indicated that the Applicants intended that the mound would be used for a residential development. The Assessment Report prepared by Council officers (Ex 3 folios 1-10) stated that the land was classified as Flood Prone Land (High Hazard Flood Storage). The Assessment Report also acknowledged that the intended use of the mound was for residential development (at folio 7 in the section headed 'Internal Referrals'; at folio 8 under the heading 'Clause 7.3'; folio 9 second paragraph under the heading 'Chapter B5-Flooding' (Chapter B5 is a Part of the PSDCP)).
The last sentence on folio 9 of the Assessment Report reads: "Given the mound is intended for residential development a condition was placed stating that the mound should be at 6.2m AHD consistent with the FPL.'' (FPL is the Flood Planning Level)
The FPL is 6.2m AHD which is calculated as the 1% AEP + 500mm freeboard stated on the 2018 Flood Certificate (Ex J).
The Mound DA was approved subject to conditions: "The Mound DA was approved subject to conditions ("Mound Consent"). A copy of the Notice of Determination dated 31 January 2019 approving the Mound DA is in Exhibit 2 behind Tab 4 at folios 27-32. Condition 5 of the Mound Consent can be found at folio 30 which required the finished level of the constructed earth mound to be at a height no lower than 6.2m AHD. In simple terms, the Respondent was aware that the Applicant was seeking consent for the mound so that they could construct a dwelling house on top of the mound and, with that knowledge in mind, the Respondent required the top of the mound to be at the flood planning level to facilitate that future residential use." (Applicants' closing submissions dated 8 March 2022 par 12)
The Notice of Determination, dated 31 January 2019 (Ex 2 Tab 4 folios 27-32), provides in Condition 5 at folio 30: "...the final level of the constructed mound is to be at a height no lower than 6.2 m AHD. The condition specifies a height no lower than 6.2 m AHD, it does not limit the height if the Applicants construct a mound higher than 6.2 m AHD."
By setting the minimum height at 6.2m AHD the Applicants may have assumed that the Council was aware of their intent to construct a dwelling house on top of the mound and so required the top of the mound to be at or above the FPL to facilitate the future building of the dwelling house (see Applicants' closing submissions dated 8 March 2022 at par 12).
The Council considers that the original approval for the flood mound was for "an innominate use" (for example in the Council's outline of submissions filed 9 June 2022 par 37) regardless of what may have been intended by the Applicants, and for which in the Assessment Report (Ex 3 folios 7-9) potential for future development of a house on the mound was acknowledged by the Council officers who had prepared the Assessment Report.

What occurred during the two years after lodging of the DA and its eventual refusal by the Council?

The chronology of events is laid out in Section E 'Actions of the Respondent' in the Statement of Facts and Contentions (SOFAC) at pars 27-36. "27. The DA was lodged with Council on 8 March 2019. 28. In accordance with Port Stephens Council Community Engagement Strategy, the DA was not notified to adjoining properties as notification is not required for single storey dwellings. However, If the DA was to be amended to increase the flood mound, the amendment may be required to be notified in accordance with the Port Stephens Community Engagement Strategy. 29. Council Officers undertook inspections of the Site in April 2019 and June 2019. 30. The DA was reported to Council at its meeting on 10 September 2019. At that meeting it was resolved that the DA be deferred for a period of time to undertake a site inspection and convene the Floodplain Committee to consider amendments to the flood controls. 31. On 10 December 2020 an amendment to Chapter B5 Flooding of the DCP was endorsed which sets out prescriptive and performance based controls for new development on flood prone land. 32. Following the changes to the DCP, the Applicant was requested on 18 January 2021 to address the new controls and Councillors were invited to attend a site inspection. 33. On 16 February 2021, the Applicant provided an Addendum to Statement of Environmental Effects, which included a new Flood Impact Assessment Emergency Response Plan prepared by Torrent Consulting. 34. The DA was determined by Council on 13 April 2021 by way of refusal on the following grounds: a. The proposed development fails to satisfy Clause 7.3 Flood Planning of the Port Stephens Local Environmental Plan 2013 as the development does not demonstrate that it is compatible with the high hazard floodway category of the site, including minimising the risk to life associated with the flood hazard (s4.15(1)(a)(i) EP&A Act); b. The development does not comply with the controls contained within Chapter B5 Flooding of the Port Stephens Development Control Plan (s4.15(1)(a)(iii) of the EPA Act); c. The proposed development does not demonstrate the site is suitable for the proposed site given the flood category of the land s4.15(1)(c) of the EP&A Act); and d. The proposed development is not considered to be in the public interest as the development is inconsistent with the adopted principles and strategies which seek to promote the appropriate development of the land (s4.15(1)(e) EP&A Act). 35. The determination of the Council was reached for the following reasons: a. The proposed development is not consistent with the objectives of the applicable Environmental Planning Instruments being: Port Stephens Local Environmental Plan 2013 (PSLEP). b. The proposed development is not consistent with the objectives of the applicable Development Control Plan, being: Port Stephens Development Control Plan 2014 (PSDCP). c. The proposed development is not consistent with the public interest as it is inconsistent with the adopted legislation and strategies of the land. 36. On 7 October 2021, the Applicant filed this Appeal against Council's refusal of the DA."
The Council "resolved that the DA be deferred for a period on 10 September 2019" (SOFAC par 30). As recorded in the SOFAC, no length of the period of deferral was specified. The SOFAC does not indicate whether the Applicants were advised.
In the Council's outline of submissions dated 9 June 2022 at par 28, the changes to the PSDCP were discussed. "Consideration of the planning controls in the DCP in relation to flooding 28. Port Stephens Development Control Plan (PSDCP) applies to the site. Of particular relevance to the determination of the issues in dispute is Section B, Chapter/Part B5 Flooding (hereafter Part B5) which applies to all development on flood prone land (as defined in the Glossary to the PSDCP). On 10 December 2020, Part B5 Flooding was amended to include prescriptive and performance based controls for new development on flood prone land, giving effect to Council's resolution of 8 December 2020. While the performance based criteria in Part B5 are current as at the date of determination (and were not as at the date that the development application was lodged: 8 March 2019), there is no savings provision in the PSDCP suspending the application of the new controls vis-à-vis undetermined applications. The Applicants could have, but did not, appeal the deemed refusal of their development application within 6 months after the date of deemed refusal under s 8.11 (the deemed refusal period being 60 days), i.e. before Part B5 was amended in December 2020. The Applicants instead waited until 7 October 2021." (footnotes omitted)
Two matters in this paragraph can be stressed.
Firstly, there is no saving provision in PSDCP suspending operation of the new controls for applications made prior to 10 December 2020. The DA was lodged with Council on 8 March 2019, well before the changes to PSDCP came into effect. As the DA had not been determined, the December 2020 amendments to the PSDCP apply in the assessment of the DA.
Secondly, par 28 of the Council's outline of submissions suggests that the Applicants could have launched an appeal much earlier, on the basis of deemed refusal, any time after 60 days since the DA was originally lodged.
The Applicants in their closing submissions dated 21 June 2022 at pars 28 and 29 responded thus: "28. Agreed in part. The Applicant accepts that the latest DCP applies however it sits ill in the mouth of the Council to say that the Applicants' could have appealed earlier before Part B5 was amended when it was the Council who was holding back its determination of the DA so it could amend the controls and apply them to the development. on the evidence of Mr Jones, it also appears that Council changed the flood hazard category after the DA was lodged. 29. The DCP speaks for itself. The evidence is that the flood hazard category of the land at the time the DA was lodged was "High Hazard Flood Storage" and that the hazard category was changed to "High Hazard Floodway" by 9 April 2019. There is no satisfactory explanation for this change as there was no change in the material before the Council to prompt the change."
The Applicants accept that the amendments made to the PSDCP in December 2020 are applicable to the assessment of the DA, but point out that it was the Council which deferred its consideration of the DA "so it could amend the controls and apply them to the development".
An applicant can institute an appeal if a development application is not determined within 60 days of lodgement, but it is not mandatory that such an action is taken. The Court was not provided with any advice as to whether there were communications from the Council to the Applicants which indicated that the decision to defer determination of the DA had been taken.
The Applicants, in closing submissions at par 29, consider there is no satisfactory explanation as to why the hazard category had been changed from "High Hazard Flood Storage" to "High Hazard Floodway".
There is some information provided as to the process resulting in the change, although whether this constitutes a satisfactory explanation is questionable.
The Applicants lodged the DA to build the dwelling house on the mound on 8 March 2019. The Council refused the DA by a Notice of Determination dated 13 April 2021, more than 2 years after it was lodged. During the two years the flood classification of the subject site was changed from "High Hazard Flood Storage" to "High Hazard Flooding" and there were also changes in the PSDCP controls applying to the site.
At the time the Applicants applied for approval to construct a mound they obtained from the Council a Flood Certificate, tendered in evidence as Ex J (Certificate no. 8 83-2017-191-1) (2018 Flood Certificate). There is nothing stated on the certificate which indicates an expiry date. The certificate states the flood classification of the site was High Hazard Flood Storage.
The PSDCP was amended around December 2020, and unlike the predecessor document specified that a Flood Certificate was valid only for 12 months from the date it was issued.
The Applicants, following the issue of the certificate in Ex J, had not applied for any other certificate, which is unsurprising as they thought they had a certificate which remained valid.
The Council issued a Flood Certificate in respect of the subject site on 14 February 2022 (2022 Flood Certificate). This certificate was not issued to the Applicants, who had not applied for a new certificate. The Applicants only became aware of the existence of the new certificate on the day before the hearing when they were served with the Council's Supplementary Bundle (Ex 3 with the new certificate at folio 19).
The 2022 Flood Certificate, as well as being valid for only a year, differed from Ex J (2018 Flood Certificate) by having a different FPL of AHD 6.6m rather than 6.2m, and a change in flood classification to High Hazard Floodway.
The limited length of validity for the (new) 2022 Flood Certificate is not restricted to the Applicants' land - the rule applies to certificates for land throughout the local government area.
No information was provided as to whether the Council had undertaken any publicity campaign to advise landholders of the change. It is possible that other landholders may no longer possess a valid certificate applicable to their land holding, and might only become aware of the need for a new certificate when they lodge a development application for modification of an existing building or construction of a new building.
For the majority of landholders a new certificate is unlikely to reveal a change in flood classification or changes to the FPL, but there might be some cases similar to that which became apparent to the Applicants.
There was no information provided on the (new) 2022 Flood Certificate which explained the basis for the change to flood classification - and no information was provided about how to access the relevant data which led to the changes. There does not appear to be a mechanism for a landholder to challenge the changes made to a certificate.
In her opening, Ms Irish, counsel for the Council, referred to the change from "High Hazard Flood Storage" to "High Hazard Floodway" in Tcpt, 17 February 2022, p 7(8-39): "IRISH: So that's the 1 in 50 year event and that's fixed at 5.5 metres, so the observation made at para 25 of the facts is that the low point of Swanreach Road at RL2.4 AHD is well below that 5.5 which is what would be reached in the 1 in 50 peak flood level from a Hunter River event. If I then go back to para 17 of the facts on p 3 of exhibit 1 the site was provisionally mapped as high hazard flood storage based on information extrapolated from the Maitland City Council and Cessnock City Council, Hunter River Branxton to Green Rocks flood study WMAwater Sydney. Because that's one of the library of documents to which the flooding experts have regard in their full joint report. That document is actually included in volume 2 of exhibit 2 at p 331. I don't need to take you to that. The flood storage designation has been superseded for the purposes of this development application. It was already designated as floodway not flood storage by the time that the assessment of this development application commenced. That's the purpose of including the referral document, the internal referral document at p 11 of exhibit 3 to which you were taken yesterday. So that was a document that was completed on 9 April 2019, so a month after the lodgement of the DA there was already by Mr Osborne(?) an assessment which when you look at p 12 hand numbered in exhibit 3 says at item (ii), "The proposal is…high hazard floodway." Opposite you can see a hand annotated flood velocity vectors diagram in the 1% AEP flood, hand annotated to show by a rough rectangle the location of Lot 51. Then over the page you can see on p 14 there's information of the kind which is extracted for flood certificates, the flood summary includes that the highest hazard category by 9 April 2019 was high hazard floodway. So the council says it's irrelevant whether it was provisionally mapped in a different way before more fine grained attention to mapping occurred so as to identify it as high hazard floodway and there is a contest between the parties flooding experts as to whether the mound and what might be built on it is categorised under the hazard categorisation as high hazard floodway."
The earlier classification was based on extrapolation from studies in nearby areas, but not, it would seem, on any direct observations of the site.
The Council says it is "irrelevant, whether it was provisionally mapped in a different way before attention to more fine-grained occurred" (see above Tcpt, 17 February 2022, p 7(35-36)).
However, there is no clear explanation as to what form the fine-grained mapping took.

PSDCP Part B5

Part B5 of PSDCP includes Figure BH - a diagram of the flood hazard landscape.
The topography has very little variation in elevation. There was no evidence produced that there has been a change in topography in the recent past, such that the position of the floodway has changed.
There have been other mounds constructed in the area and these might potentially alter flood behaviour.
Figure BH in Part B5 is to be taken as providing the characterisation of flood hazard on the site today regardless of how areas may previously have been mapped.
However, the change from flood storage to floodway, without an explanation being offered as to why the change was made, may not encourage faith in the accuracy orstability of the current mapping.
The flooding experts (Mr Williams, for the Applicants, Mr Cotterill for the Council) disagreed as to whether mounds within an area mapped as high hazard floodway are themselves to be categorised as being part of the floodway. "I think Mr Williams has the view that if it's above the FPL then it is not high hazard floodway. Mr Cotterill holds the view that the mapping is of the land at a general scale and that it deliberately does not seek to accommodate every island or high point as being distinguished from and not having the overall characterisation of a high hazard floodway. I don't think anything turns on that context between the experts because it is common ground that this dwelling will be isolated during events that are even more frequent than the one in a hundred and it will be surrounded by high hazard floodway and the risk to life posed by that high hazard floodway in those circumstances. So I don't think it's material to concentrate on the contest as to whether what pokes out above the flood planning level may or may not itself be characterised as a high hazard floodway the context in which this proposed dwelling would sit is that it's exposed to the risk of being surrounded by a high hazard and risk to life by isolation more frequently than the one in the hundred." (Tcpt, 17 February 2022, pp 7(41)-8(5)) "Mr Williams agrees that the broader site is within the High Hazard Floodway (Ex 4, p 6, [6], [11] and Ex 6, p 11), and Mr Cotterill and Mr Dylan Mitchell say, vis-à-vis the existing flood mound, that flood islands are included within the mapping of floodways as general practice consistent with the principles of the FDM [Floodplain Development Manual] (Ex 4, p 8, [28]; Ex 5, [1.20]; Ex 6, 11). The Court would accordingly accept that the man-made flood mound does not alter the hazard categorisation of the land which is a mapping outcome) or the substantial depth of flood waters that drive the high hazard flood conditions at the Site (per Mr Williams' modelling discussed at paragraphs 18-19 above)." (Council's outline of submissions dated 9 June 2022 at par 32 on pp 12-13)
The Applicants took a different view. "…The Council cannot overcome the fact that whilst the land may be mapped as a high hazard floodway, the mound does not function as a high hazard floodway. The FDM definition of a floodway is "areas conveying a significant proportion of the flood flow and where partial blocking will adversely affect flood behaviour to a significant and unacceptable extent". This is not true of the flood mound." (Applicants' closing submissions dated 21 June 2022 at par 32)
The issue is one on which there could be continuing academic debate, but I do not think the issue is of particular relevance to the matter at hand. The mounds could be considered to be islands above the floods, but they are limited in area, and any dwelling on a mound would, during floods, be separated from other areas above the flood level by water, and the depth of the water, the velocity of flow, and the length of time a mound will be isolated are important considerations in the determination of this matter.
Ms Irish suggests there is common ground between the experts about the frequency of isolation of the dwelling and the risk to life (Tcpt, 17 February 2022, p 7(46-49)). I think this is not a complete description of the experts' views, and that a more nuanced interpretation is required. The experts did agree on the estimated frequency of inundation, and they agreed that there was a risk to life, but the Applicants consider that the risk can be managed appropriately, whereas the Council considers that the risk could not be appropriately managed, and the existence of the risk requires that the DA must be rejected.
The original DA had not been notified, either to neighbours or, through public notice, to the general public. The non-notification was in accordance with the Port Stephens Community Participation Plan that does not require notification of any application for a single dwelling. There were therefore no submissions made by individuals or groups to be considered.
The Council did, however, seek advice from the SES. The response from the SES is in Ex 2 behind Tab 7 at folio 94, and stated that the position of the SES was: "Unless there is some critical factor indicating otherwise the NSW SES does not generally involve itself in individual development applications. This is because the NSW SES is not resourced to do so."
The letter outlined general principles which a consent authority would need to consider in making an assessment of a proposal, but does not make any specific recommendations in regard to the proposal in the DA.
It had been suggested that the application was for designated development with a requirement to seek General Terms of Approval (GTAs) from the Natural Resources Access Regulator (NRAR). GTAs have not been issued but correspondence from the NRAR indicated that in the circumstances of the case there was no requirement for them.
The application was originally for the construction of dwelling house on a concrete slab on an artificial mound and specified that the slab simply sit on top of the mound.
The Council's engineer proposed, in a letter, which was tendered as Ex E, that the slab be supported on piles extending into the mound, and this was accepted as a modification to the design.

Relevant flood terms

Before discussing the evidence and the submissions of the parties, it is appropriate to introduce some of the terminology related to flooding and flood events used by the experts. Some of the terminology has already been mentioned in earlier parts of this judgment, but bringing them together, may assist the reader.
This discussion of terminology is largely derived from the Department of Infrastructure, Planning and Natural Resources' Floodplain Development Manual: the management of flood liable land (2005) (Floodplain Development Manual), by direct quotation or paraphrase.
Annual Exceedance Probability (AEP): The chance of a flood of a given or greater size occurring in anyone year, usually expressed as a percentage. It can be applied not just to height of a flood but to other parameters such as velocity, which are all closely correlated. If the AEP is 5%, there is a 5% chance (a 1 in 20 chance) of the particular value of the parameter being exceeded in any one year.
Australian Height Datum (AHD): A national surface level datum which is approximately mean sea level.
Average Recurrence Interval (ARI): The long-term average number of years between an occurrence as big as or larger than the selected event. A flood with an equal or greater magnitude than the 20-year flood event will occur on average once every 20 years.
It needs to be stressed that this is the average over a long term. Available long-term documented records are from within the last approximately 200 years, that is, since the European colonisation of Australia, and for many localities have only been measured for considerably shorter periods. The knowledge of First Nations peoples has not been systematically explored, but may provide information over longer periods; sedimentary and geomorphological evidence has also been little studied to determine previous flood events.
The ARI is often referred to in terms, such as the 1 in 100-year flood, or 1 in 20-year flood etc. This is often done without recognising that the ARI is based on a long-term average - just because an individual event is classified as a 1 in 100-year flood does not mean that another 1 in 100-year flood may not be experienced at the same locality in the next year. An ARI described as a 1% event means that the probability of it occurring in any one year is 1 in 100 years; over a long period, the average occurrence would be 1 in 100 years.
Flash flooding is flooding that is sudden and unexpected and caused by sudden, local, heavy rainfall, and peaks within a matter of hours of the causative rainfall event.
Flood Planning Level (FPL): This is a combination derived from local levels observed from historical data or floods of specified AEPs with an additional freeboard incorporated into management plans - for the subject site the FPL is the 1% AEP + 500 mm.
Probable Maximum Flood (PMF) is the largest flood that could conceivably occur at a particular location and is usually estimated from Probable Maximum Precipitation, and the worst flood producing catchment conditions.
As has been shown in flooding events over the last few years, when preceding a particular flood event there had been extended periods of rainfall. This results in saturated soil and an increase in the likely run off.
Probable Maximum Precipitation: It is the highest precipitation for a given duration meteorologically possible over a given size storm area, and a particular time of the year. Importantly, no allowance is made for long term climatic trends, although trends likely to result from global warming may become important considerations in planning future developments for particular catchments.
A floodplain is an area of land, which is subject to inundation by floods up to, and including, the probable maximum flood event. A floodplain therefore occupies flood prone land (for which flood liable land is a synonym). A floodplain is more extensive than the area below the relevant flood planning level.
Two terms that are highly relevant to the present matter are flood storage area and floodway area. These are defined in the Floodplain Development Manual as: "Flood storage areas are those parts of the floodplain that are important for the temporary storage of floodwaters during the passage of a flood. The extent and behaviour of flood storage areas may change with flood severity, and loss of flood storage can increase the severity of flood impacts by reducing natural flood attenuation. Hence, it is necessary to investigate a range of flood sizes before defining flood storage areas. Floodway areas are those areas of the floodplain, where a significant discharge of water occurs during a flood. They are often aligned with naturally defined channels. Floodways are areas that, even if only partially blocked, would cause a significant redistribution of flood flow or a significant increase in five levels."
Since colonisation by Europeans, the highest overbank flooding in the Hunter River was that associated with the February 1955 Maitland flood. The height of this flood was below what is predicted to be the probable maximum flood.

Planning controls relevant to flooding

In the SOFAC (Ex 1), Contention 1 was: "1 Flooding The consent authority could not be satisfied that the development complies with cl 7.3 of PSLEP."
Clause 7.3 of PSLEP provides: 7.3 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause - flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.
On 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 came into effect. Clause 7.3 of PSLEP was, by the operation of Sch 1 of the SEPP, repealed, without any savings provisions. (The equivalent clause was repealed in all other LEPs.)
Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 inserted in PSLEP (and all other LEPs across the State) a new clause - cl 5.21: Councils have the option of also including an additional cl 5.22 of Special Flood Considerations.
However, cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 states: 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 DA, the subject of these proceedings, was lodged before 14 July 2021, and therefore, pursuant to cl 8(1), cl 5.21 does not apply.
The deletion of cl 7.3 and the inapplicability of cl 5.21 to the DA creates a lacuna, which has been discussed in a number of judgments, of which those delivered before the date of the Council's final submissions were summarised by Ms Irish in her final submissions of 9 June 2022 in Annexure A.
The repeal of cl 7.3 means that, while cl 7.3 was relevant at the time the Council's SOFAC was filed, Contention 1, and most of its particulars, are no longer relevant to determining the matter (Applicants' closing submissions of 8 March 2022 pars 23-28).
Because the DA was lodged prior to the introduction of cl 5.21 in PSLEP, cl 5.21 does not apply. In the cases referred to in Annexure A of Ms Irish's final submissions the facts of each case differ and there were also differences in whether it was considered that cl 7.3 and 5.21 applied. In the most recent of the judgments referred to by Ms Irish - OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 (OM Vinayak) - Commissioner Dickson provides a cogent analysis as to why neither cl 7.3 nor 5.21 applied in that case, and this analysis is equally relevant to the current matter (although the circumstances in the case were different from those in the present matter in that the development was in a low risk flood area and the depth of inundation during a 1% AEP event was in the range 0.3m-0.5m). The apparent anomaly will only have arisen in matters involving development applications submitted but not determined prior to the introduction of cl 5.21, so the number of cases in which it is manifest will be limited.
Even if there are no specific provisions in the LEP relating to flooding which apply in the particular circumstances of this case, it is agreed that the site is flood prone, so that flood-related matters need to be considered.

Evaluation of the DA

Evaluation of development applications must take into account the requirements of s 4.15 of the EPA Act: 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.
I am required to consider, in particular, s 4.15(1)(a)(i), (iii), s 4.15(1)(b), (c) and (e).
Section 4.15(3A) provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
Importantly in this matter the note to subs (3A) is relevant as performance criteria come into play.
The requirement to consider the DCP applies to all evaluations but is of greater significance here given the repeal of cl 7.3 and the non-applicability of cl 5.21 in the PSLEP.
Ms Irish in her opening addressed the issue: "In Gardiner Commissioner Morris while she was dealing with a two lot residential subdivision on flood prone land not a dwelling house such as this it was proposed that the response to manage the risk of the flood proneness of the proposed subdivision being a stay in place protocol it was considered by her not to be acceptable but the approach she took to what statutory provision applied was that the LEP does not contain specific provisions but the provisions contained within the DCP guide determination of the application so she went down the path that Commissioner Chilcott trod in the Rothshire matter which is to use the DCP for guidance in a context of there being no effective LEP provision during this lacuna that exists between the repeal of, in our case, 7.3 and the application of 5.21." (Tcpt, 17 February 2022, p 9(37-47)) (Gardiner is Gardiner v Central Coast Council [2022] NSWLEC 1007)
Application of DCP provisions to fill the lacuna had occurred in a number of other cases included in Annexure A to the Council's final submissions, including OM Vinayak.
Section 3.42 of the EPA Act reads as follows: 3.42 Purpose and status of development control plans (cf previous s 74BA) (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development - (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements. (2) The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43(1)(b)-(e). (3) Subsection (1) does not affect any requirement under Division 4.5 in relation to complying development.
Although a DCP is not a statutory instrument, it should always be given consideration in the evaluation process, as a 'fundamental element' and 'focal point' in decision making (Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75] per Spigelman CJ). The weight required to be given to the DCP is perhaps greater in this matter given the absence of applicable specific flood related requirements in PSLEP.

Applying the flood provisions in PSDCP

Part B5 Flooding of the 2021 version of the PSDCP is the version of the DCP applicable to the DA.
Figure BF determines the assessment pathway to be deployed:
The progression through Figure BF was described by Mr Staunton: "Now if you go to the DCP which came into operation and you heard in opening the council deferred my client's DA so it could make this DCP. If you go to those provisions and you go to the table, which is the application so folio 138. It says "Is the development…or planning certificate?" The answer's yes. That then says, "DCP Part B5 - flooding applies." It says, "Determine the flood…of the land." The council now say it's high hazard floodway. Then if the land is described as "flood prone land subject to further investigation." We're not presumably you then just go down to the next arrow. "Is the proposed…in figure BL?" and the answer is no. If you look at BI it's not identified as with a "U" it's identified with a "PV" and then it says "Is the proposed…applicable development controls?" If the answer to that is "Yes" it says "No flood related controls apply." Well we're a no, so you go to the next one. "Is the proposed…to development controls?" The answer is "Yes." So you shift across to the right and it says, "Apply development controls at B5.1 to B5.17" and then it goes down a step and it says, "Development that cannot…B5.18 to B5.20." So they are the controls in 5D. I don't, I'm not going to put to you and I would reject any construction of the DCP that then says you go back to the left arrow and have to comply with that. If you meet the requirements in that box which is the performance based requirements then you pass the test of the DCP. That's what I say the focal point of your assessment should be." (Tcpt, 17 February 2022, p 18(16-37))
Flood categories are those in the table in Figure BG:
The subject land is, as stated on the 2022 Flood Certificate issued by the Council to itself just before the commencement of the hearing, within a High Hazard Floodway (see also Figure BH reproduced at [59] above).
The Glossary to the PSDCP is in Section E1 of the PSDCP - this includes definitions of both low and high hazard areas (not floodways but the concept appears similar). "low hazard flood area is the area of flood where, should it be necessary, a truck could evacuate people and their possessions or an able-bodied adult would have little difficulty in wading to safety." "high hazard flood area is the area of flood which poses a possible danger to personal safety,where the evacuation of trucks would be difficult, where able-bodied adults would have difficulty wading to safety or where there is a potential for significant damage to buildings."
These definitions are important in that they indicate that Council contemplates circumstances when evacuation might occur on foot, or by truck when there is some water covering the accessway, but not in high hazard areas.
Truck is applied in common parlance to a very broad range of vehicles - which encompasses a very wide range of sizes and forms. Truck is not a term defined in the E1 Glossary. During the hearing I sought to clarify what types of truck might be anticipated to be relevant, but enlightenment was not forthcoming.
Suitable land uses for lands in particular flood hazard categories are identified in Figure BI (there is some confusion in the PSDCP, with references to both Figure BI and Figure BL - but there was agreement that this was most likely to reflect a proofreading error and that both BI and BL refer to Figure BI).
The proposed development is categorised as a dwelling house, for which Figure BI specifies for High Hazard Floodway PB - which is explained in the legend as "A performance based solution may be provided to demonstrate that the proposed land use is suitable."
The table in Figure BI does not identify development in floodways as being unsuitable - such a characterisation would prohibit any dwelling house being constructed on the subject site, rather it permits an applicant to propose a performance based solution.
B5.D establishes criteria for determining the acceptability of proposed performance based solutions. "B5.D Application of performance based solutions Objectives Performance based solutions that meet the objectives listed below apply to: • Proposed development identified as suitable on flood prone land in Figure BI that cannot meet the relevant development controls in this Part; or • Proposed development that is identified as possibly suitable on flood prone land in Figure BL, subject to performance based solutions. Performance based solutions Risk to life The proposed land use is consistent with Figure BI, which shows suitable land uses by flood hazard category (as identified on a flood certificate) and the proposed development incorporates adequate measures to manage risk to human life from flooding, including: • Evacuation access from an area affected by flooding to an area free of risk from flooding, taking into account any potential access restrictions; B5.18 • Warning times and procedures to make people aware of the need to evacuate; • Consideration of the current and potential future occupants; and • Consistency with the most recent Council adopted flood study or floodplain risk management study that has been undertaken for the site. Risk to property The proposed development will not increase the potential individual or cumulative flood impacts on other development or properties that are likely to occur in the same floodplain. In determining any potential increase in flood impacts, Council will consider: B5.19 • Future (in the year 2100) flood levels and/or velocities including, but not limited to the 5% AEP flood event, 1% AEP flood event and probable maximum flood (PMF) events; • Loss of flood storage in the immediate floodplain; and • Consistency with the most recent, Council adopted flood study or floodplain risk management study that has been undertaken for the site. Flood hazard computability The proposed development must be compatible with the flood hazard category of the land (as identified on a flood certificate) or include mitigation measures or offsets to reduce the flood risk. In determining compatibility, Council will consider: • Whether there is other land on the site with lower flood risks where the development could be located; B5.20 • Depth of flood inundation on the site and the adjacent land; • Flow velocity on the site as well as upstream and downstream from the site; • Suitability of design so that the development does not become isolated by high hazard floodwaters; and • Consistency with the most recent, Council adopted flood study or floodplain risk management study that has been undertaken for the site.

The Council was satisfied that Risk to Property was not a concern, so that B5.19 need not be considered.
However, B5.18 Risk to Life, and B5.20 Flood Hazard Compatibility remain important matters for consideration, and underlay much of the discussion when the experts appeared, by AVL, and were cross-examined.

Evidence from experts

Four expert witnesses gave evidence: 1. For the Applicants: 1. Mr Daniel Williams - Flood engineer. 2. Mr Hugh Jones - Planner. 1. For the Council: 1. Mr Bryn Cotterill - Senior Development Engineer. 2. Mr Dylan Mitchell - Senior Development Planner
Mr Williams and Mr Cotterill had prepared a Joint Expert Report, which became Ex 4, filed on 28 January 2022.
Mr Jones and Mr Mitchell had prepared a Joint Expert Report which became Ex 5, filed on 8 February 2022.
All four experts had held discussions on the day before the hearing as a group and the resulting Joint Expert Report became Ex 6.
All four experts were present by AVL during the hearing.
Mr Williams had prepared the BMT flood impact assessment, dated 11 September 2018 that was annexed to the initial Statement of Environmental Effects prepared by the Le Mottee Group for the Applicants.
He subsequently prepared, when he was employed by his own company, Torrent Consulting, a further report dated 15 February 2021.
The modelling and reports prepared by Mr Williams related to a Hunter River flood event, and not to local (flash flooding) events, although localised events were modelled by Mr Williams immediately before the hearing.
A subject of concern to the Council was the frequency and depth of flooding along Swanreach Road. Mr Williams was questioned by Ms Irish about the low point on Swanreach Road, which is the access road from the proposed development location. "IRISH: Could you help the Court with where those depths are? WITNESS WILLIAMS: No it's just normally we'd put a general description of the depths so you know if the average sort of ground - ground level at a site is 2.3 metres below the flood level we would just say you know typical depth's around 2.3 metres, just to provide some contextual information. IRISH: Then you continue in that sentence, "So it's the substantial depth of floodwater that drives the high hazard flood conditions at the site." WITNESS WILLIAMS: Yes, correct, yeah. IRISH: You remain of that view? WITNESS WILLIAMS: Yes, that's correct they, they are dominant, they're the dominant driver of hazards. There's two combination - the hazard is a combination of velocity and depth and it's principally the depth that's the main driver of the high hazard conditions of the site, yep. IRISH: I understand. Then you prepared the Torrent Consulting report on 15 February 2021. WITNESS WILLIAMS: Yes, correct. IRISH: And that again discusses the Hunter River flooding. WITNESS WILLIAMS: Yep, yep. IRISH: You talk on page 5 about the limited assistance provided by the Branxton to Green Rocks flood study and so you remodel the peak design floods downstream of Maitland for this site, that's correct, isn't it? WITNESS WILLIAMS: That's correct, yes. IRISH: Table 4, do you have a copy of your 2021 effort with you? WITNESS WILLIAMS: Not open but I can, I can open it quite readily so I'll - just bear with me whilst I open it up. IRISH: Sure, so I'm looking at table 4 on page 5. WITNESS WILLIAMS: Yep. IRISH: These are the design events and the flood levels that the Court should have regard to in determining the impact of the Hunter River flooding. That's correct, isn't it? WITNESS WILLIAMS: Not necessarily, it depends what we're talking about. If we're talking about flood planning levels then no because they depend on council's adopted ones but if we're just - if some, I'll give some context to them. So the models purpose is produced to assess flood impacts so relative impacts. So if we're building a mound we can model the pre-imposed conditions and identified flood impacts. But the model doesn't seek to overturn council's adopted flood planning levels. So models that are developed for flood planning purposes, you know, commissioned by councils and adopted through the formal council process it doesn't seek to make council stuff obsolete or - it just seeks to be able to provide a tool for determining flood impact assessment requirements and also assisting in you know information for flood emergency response needs. IRISH: Understand and your focusing here on the modelled peak design flood levels from a Hunter River flood event not in this document from a localised event, that's correct isn't it? WITNESS WILLIAMS: This is the Hunter River event in this document. In terms of the local catchment event that's what I have undertaken in the last few days and we've provided, yes. IRISH: The low point of the road access when council filed a document called the statement of facts and contentions it said it was a low point of 2.4 metres AHD in Swanreach Road, you'd agree with that? WITNESS WILLIAMS: I disagree with that. I believe it's about 2.5, I think we've both had this discussion with Mr Cotterill, I think we're both referring to the, the New South Wales and LiDAR elevation data set and at the low point of the road there's a large tree that obscured some of the, the ground surface points so you can tell, I mean, I've got significant background in GIS so I'm very used to dealing with topographical terrain, survey data sets and you can kind of see the impact that this tree has had on the, the ground surface underneath. But if you look at the, the camber of the road which is got a high elevation on the, along the eastern edge, you can see that that's around, that's around that 2.5 metres AHD and then there's a bit of a gap in that where the tree is obscuring levels and then, and then it jumps to 2.5 metres AHD again once you get to the other side of the tree. So with the best available information I would say that we're, we're about at 2.5 metres AHD rather than 2.4. IRISH: Do you agree with that Mr Cotterill or disagree? WITNESS COTTERILL: I agree that there is some uncertainty we can't be a hundred per cent reliant on the LiDAR levels. To the best of my knowledge the - it's in the order of 2.4 or 2.5 metres as Mr Williams says. IRISH: Have you visited the site, Mr Williams? WITNESS WILLIAMS: I have, yes. IRISH: So should we deduct 2.5 from the model peak design flood levels in your table 4 on page 5 of your Torrent report of 15 February 2021? WITNESS WILLIAMS: Correct, yes. IRISH: In order to understand the approximate depths at the low point of the road? WITNESS WILLIAMS: Yes, so I modelled the actual low point physically at 2.49 so if you want to be very specific I would, I would subtract 2.49 rather than 2.5. I'm just referring to 2.5 because of the inherent uncertainty like Mr Cotterill's alluded to but yes I've modelled it at 2.49, so that's technically what should be subtracted." (Tcpt, 17 February 2022, pp 31(4)-33(13))
Accuracy to the nearest centimetre is unnecessary, and neither would I put any great weight on the 10cm difference between 2.4-2.5m AHD, but it is important to be aware that Swanreach Road would have water lapping over it during flood events at levels well below the 1% AEP level.
Ms Irish subsequently questioned Mr Williams about the consequences of the introduction of the low point on Swanreach Road. (In the passage below references is made to the FERP (Flood Emergency Response Plan) in Ex H). The FERP evolved over time with the final version being Ex U. (Given the importance of the FERP, Ex U is included as Attachment 1 to this judgment. The changes to the FERP did not affect the general tenor of the discussion reproduced below.) "IRISH: … we're in the predicament that at best we're on a site which is isolated and it is unsafe for vehicles and people-- WITNESS WILLIAMS: That's correct, yes. IRISH: And all fences are susceptible to failure which isn't relevant so you accept in the first paragraph on page 7 that the frequency of short duration high intensity rainstorms is expected to increase? WITNESS WILLIAMS: Yes, yes that's correct, yes. IRISH: And a large river system, what I want to put to you is that a large river system event is not a useful predictor of the Swanreach Road affectation without also considering the possibility of a localised event which you've now done in the additional modelling in the last couple of days. WITNESS WILLIAMS: That's correct, that's what we've done in that additional model, yeah. IRISH: So you wouldn't rely upon just this large river predictor assessment in order to make an informed decision about the Swanreach Road affectation for the purposes of determining this development application? You'd consider both? WITNESS WILLIAMS: We've considered both, yep. IRISH: Yes, okay now the large river system warning that you rely upon you say 24-hours is the Maitland Belmore Bridge gauge triggering a warning of a moderate or major flood, that's correct isn't it? WITNESS WILLIAMS: That's correct, yes. IRISH: But the site access is inundated in the large river system event between a minor and a moderate flood, you say that twice, you say it once in this Torrent flood risk assessment-- WITNESS WILLIAMS: Yep. IRISH: --you said it again in the FERP which is now exhibit H, don't you? WITNESS WILLIAMS: Yep. IRISH: And that's between - at the foot of page 7 in this Torrent flood risk assessment for example you say that the site access becomes inundated between the 50% and the 20% event, that's somewhere between the one in two and the one in five year event, that's correct, isn't it? WITNESS WILLIAMS: That's correct, I mean it's actually probably very close to a one in four but we don't normally because of uncertainty we don't normally specify actionable frequencies of flood in between the standard design events which is why you normally say between a 50 and 20 you don't normally say at a 25% AEP, it's just not standard practice. IRISH: I understand. But that's a reasonable frequency want to put to you. On page 9 you actually say in your second paragraph the frequency of a moderate flood event is expected to occur on average every few years. WITNESS WILLIAMS: Yes, correct. IRISH: So we've got a frequency of site access inundation between the 50% and the 20% and that's coupled with you saying that the moderate gauge event is itself likely to be on average every few years? WITNESS WILLIAMS: Yes, because they're consistent with each other, so some context might help assist is that the moderate flood warning trigger is specifically at that level because that's the level that it is known that the levy (sic) system overtops so these flood warnings levels of triggers are always tied to some sort of consequence. So that moderate level is at that level because they know from past floods when it gets to 8.9 at Maitland our levy (sic) system is getting, getting compromised. IRISH: But my point is the moderate flood is not the first point at which the site access becomes inundated, it happens between minor and moderate, doesn't it? WITNESS WILLIAMS: It happens at the moderate. IRISH: No it happens, you say twice, once in this document and again in the FERP, you say site inundation occurs between the minor and the moderate flood at the Belmore Bridge gauge. WITNESS WILLIAMS: I think it was like, something like 8.8 but again see that would be based on that would be based on my modelling which is not as reliable as SES is and the BOMs triggers there so I think, like, in my modelling for instance it happened 8.8 not 8.9 but like I say they have specifically been set at 8.9 because they know that is the level at which it occurs. So in all intents and purposes their consistent but technically just a minor difference. IRISH: Yes but it's an important difference because evacuation needs to occur prior to that inundation in order to avoid being isolated by flood waters or in order to avoid the restriction on evacuation. WITNESS WILLIAMS: Yes well this is why I've then recommended it in the FERP that it's at that moderate level because that is the level that at which the levy (sic) system overtops. IRISH: No it needs to be before the moderate level because inundation occurs before the moderate flood. WITNESS WILLIAMS: No - it shouldn't, in the modelling that I looked at in this assessment it occurred like a hundred mils difference, 8.8 rather than 8.9 and that's why I've said that there but then when I've analysed it in more detail producing the FERP that's why we're triggering it at the moderate, I mean that's why it's set so that it's more reliable because that moderate level 8.9 is set on actual flood events not, not model flood events. So it's, yeah, I would rely on that over, over what my modelling was suggesting. IRISH: In the middle of page 8 of this assessment you say that the ultimate magnitude of the flood may not always be known in advance. That's still your position, isn't it? WITNESS WILLIAMS: Yes, that's correct, yes. IRISH: The frequency of inundation, that is between the one in two and the one in five rounded out although you say it's not standard practice to say that you think it's actually about one in four-- WITNESS WILLIAMS: That's correct, yeah. IRISH: --the frequency of that inundation, I want to put to you, might lead to a complacency about evacuating? WITNESS WILLIAMS: No I disagree with that. You know I'd say if it was something that was happening, you know, three or four times a year for instance then obviously that could generate a complacency I think happening on average once every four years is, is an ideal kind of frequency because it's not like every 20 years where it's - you're never going to be experiencing it but once every four years is, is not frequent enough to be a nuisance or complacent but, but a nice frequency at which to, to actually be able to practice putting the evacuation in the FERP into place. IRISH: But Mr Williams if I live in the flame zone I'm not necessarily at risk of having to evacuate for a bushfire with the frequency of one in four years. STAUNTON: I object. What's the relevance of a bushfire to the flood? IRISH: Mr Williams, this is a real and present recurring risk not merely a possible risk isn't it? It's a real and probable risk that there will be a flood event that requires evacuation at a frequency of about one in four years according to you? WITNESS WILLIAMS: Correct, yes." (Tcpt, 17 February 2022, pp 35(20-38(12))
Mr Williams' view that the frequency of the need to evacuate was 'ideal' was not subject to further discussion, and neither party cited any evidence from other studies about the inducement of complacency. Mr Williams' hypothesis may be intuitively credible, but as it stands it is merely untested speculation. However, the FERP requires evacuation, so regardless of whether residents might become complacent, if approval were granted the conditions of consent would require observance of the requirements of the FERP.
Ms Irish was concerned that there might not be adherence to the FERP: "IRISH: It's because of the use of self in that evacuation model that there is a concern that the particular occupier may not do all of the things that are prescribed as things they should do in the FERP, do you understand that there is room for concern that the FERP says you should do this, that and the other but that a particular occupier might in a circumstance not avail themselves of any of those things? WITNESS WILLIAMS: Yes, correct, as they could do with a bushfire one, you know, you can't, you can't physically go in there and, and control what people do. IRISH: That sort of person, is therefore a person of a type in respect of whom it's understandable that there might be a transfer of risk to, for example, the SES? WITNESS WILLIAMS: Not in the proposed situation when we've got the emergency refuge then, then if they stayed there obviously they could, they could take refuge in, in the space that's been indicated on the plans. IRISH: But if could just get you to look at the FERP in its most recent rendition which is exhibit H? There's a lot of things on page 2 to 3 that they should do. So for example they should pay attention to any Flood Watch or flood warnings. They should follow instructions, they should be prepared to respond to a flood emergency without assistance. They should set themselves up to receive RSS feeds from the Bureau of Meteorology. They should actively monitor gauge levels. They should be organised and prepared for the flood, they should have an emergency kit, they should turn the power off; the electricity at the switchboard, the gas at the metre, the water at the metre, block toilet bowls with strong plastic bags." (Tcpt, 17 February 2022, p 38(19-47)) and "IRISH: That's fine, you agree these are the things that should be done but might not be done by a particular occupier Mr Williams? WITNESS WILLIAMS: Yeah, that's correct, that's the recommendations. IRISH: This property could be rented, do you agree with that? STAUNTON: Sorry, I think I've missed some cross-examination, where I lost you was page 2 and 3 required things that should be done. IRISH: Yes, and I identified all of them and I can go back and do that again but Mr Williams then when you returned agreed with me that they're all things which while they are described as should be done might not be done. STAUNTON: Right. IRISH: So this is a property that could be - mightn't be the home owner who's occupying this dwelling house, that's correct, isn't it Mr Williams? WITNESS WILLIAMS: Well I don't know the intentions of the owners to rent it out or live - I couldn't comment I don't think. IRISH: But it's feasible once it's approved as a dwelling house you accept that it's feasible it could be rented or it could be used as an Airbnb? WITNESS WILLIAMS: I accept it could be feasible." (Tcpt, 17 February 2022, p 39(22-47))
I recognise the concern; it is one that arises frequently in relation to conditions, but the Court must assume the mandatory requirements within conditions will be observed, and that any future owners will have carried out due diligence investigation for conditions which continue to apply to a property, and if not discovered by themselves should be discovered during the conveyancing process.
Ms Irish was also concerned about whether warnings will always be available regarding impending flood events although Mr Williams was less concerned. "IRISH: Even if the person was minded to acquaint themselves with Flood Watch or flood warnings or set themselves up to receive RSS feeds those matters might be issued overnight when they're asleep? WITNESS WILLIAMS: They could be, yes. IRISH: Now on page 8 of your Torrent document you say that Swanreach Road becomes inundated in the 20%, one in five event, around two hours after the moderate flood level has been reached at Maitland. WITNESS WILLIAMS: Yeah, that's correct, yep. IRISH: But it's three hours before that moderate flood level if it is the one in a hundred event. WITNESS WILLIAMS: Based on the best available information in the modelling, yes. IRISH: So we've already got something less than 24-hours if inundation is occurring prior to actual moderate flood being experienced at the Maitland Belmore Bridge gauge. WITNESS WILLIAMS: Yeah we wouldn't - when you're talking about things like this we don't have that, that level of certainty and accuracy, you know, you would generally be talking about warning times, you would say we've got one hour warning time, three hour, six, 12, 18, 24. You wouldn't normally say you've got 21 hours warning time or 22. So, you know, in the context of which we normally explain these things we've got that 24-hour warning time. IRISH: Well that's assuming the target flood warning time because that's all it is, isn't it? It's-- WITNESS WILLIAMS: Complicated. IRISH: --an authority expressing as a mission statement a target of giving-- WITNESS WILLIAMS: Yes. IRISH: 24-hours, isn't it? That's the best guess. WITNESS WILLIAMS: Yeah, well, except no actually that's the minimum. So that's their target but what you'll find particularly this - the larger the flood is so if we're talking something like a 1% AEP they'll know much, much earlier 'cause it can't, it can't just appear out of nowhere. So for instance the, the only flood we've got experience with of that kind of magnitude in the catchment is the 1955 flood. And so that flood actually originated as monsoonal, the monsoonal weather system off the north coast of Australia and then it moved, you know, it came in over the Gulf of Carpentaria and progressed along the western side of The Great Dividing Range before entering the top of the Hunter Valley and progressing down towards the coast. So this is the sort of weather system that you know you're tracking for a week so with these very large floods you would generally have much more than that. They wouldn't issue an official 24-hour moderate warning until the 24-hours because generally that's - they need, that's when they're going to - it has a particular trigger press, yes. So, I'm mean they will, they will make that earlier if they know so for instance if they know that there's been so much rainfall recorded across the catchment the only time that's happened before was in 1955 they will - BOM will instantly anticipate that they could have a 1955 standard flood on their hands and therefore they may well liaise with the SES and say, "Look, we don't know exactly how high it's going to be but we know it's going to be very high, it's going to exceed even the major warnings." So they could, they could put that out a couple of days earlier based on, based on rainfall in a large enough event. But the target warnings are generally, they can be harder for a small event as you might imagine like a 20% AEP, a lot less certainty as to you know when that's going to arrive because it's, it's not, not as extreme so they hold off and they target giving a minimum 24-hours warning time to enable things like evacuation processes to occur. But, but like I say in a very large event that, that may well happen sooner, but it probably, probably wouldn't happen sooner than the required 24 - you know 20% AEP one in five but I would expect it to in a hundred year because they would know it was coming probably purely from the rainfall that they wouldn't even have to wait for it to actually respond in the rivers and come down, come down the system. IRISH: But even if there is an expectation of a warning time of the duration or degree of warning before the event that you summarise as 24-hours, that's only in relation to a river event and there would need to be a separate comprehension of the impact locally in order to issue a more pinpointed warning, for example a severe weather warning. WITNESS WILLIAMS: No I disagree with that because we've done the analysis. A - actually a very conservative analysis of local catchment conditions and found that they, they don't compromise the ability to evacuate the site so you don't need to be paying attention to what the local systems are doing. Just, you know, the main Hunter River system. IRISH: But what about a localised intense rainstorm in addition to what's happening elsewhere in the catchment or upstream of the catchment? WITNESS WILLIAMS: That's what we've - that's what we looked at and submitted, you know, in the last few days and from that concluded that, that we don't need to be concerned about that local weather system compromising flood evacuation because it's only H1 low hazard conditions at worst under the very conservative and assumptions that we've adopted so that they can safely evacuate along Swanreach Road and Hinton Road regardless of the local weather conditions. IRISH: Well I'll come back to how safe that is but you haven't produced any Bureau of Meteorology data which demonstrates to the Court that the real time provision of these Bureau of Meteorology warnings have indeed provided 24 hours warning to the residents of for example Hinton. You haven't attached or produced any bureau data to say here's the last seven times warnings were given, here's the last seven times Hinton was affected by access being cut and here's the hours of warning that that actually amounted to in the circumstances of each of those seven cases, you haven't done something like that have you? WITNESS WILLIAMS: No to my knowledge that data's not publicly available. IRISH: Is it available if you do a freedom of information request or its equivalent? WITNESS WILLIAMS: I don't know, I don't know how long they retain their stuff and what format they might retain it in. I can't comment. IRISH: So I think my understanding of your further data prepared on the 15th is that what foretells the inundation of Swanreach Road between a minor and moderate flood is a visual inspection of the road, is that right? WITNESS WILLIAMS: No, I'm sorry I don't understand what, what you're trying to ask. IRISH: Well, what foretells the inundation to a - for an occupier of this house what foretells the actual inundation of Swanreach Road, is it a visual inspection of the road? WITNESS WILLIAMS: Are we talking from local catchment - the local catchment-- IRISH: Yes. WITNESS WILLIAMS: Well I mean they could always look outside and see what was going on I suppose, yeah, I mean they're not - you're not monitoring, you don't - there's no monitoring system to be, to be informing people what's happening there, no. IRISH: So unless it's the subject of either a flood warning or a severe weather warning what you're left with is just visual inspection? WITNESS WILLIAMS: That is not of concern because we know that it can't create waters that are hazardous to evacuation. IRISH: Well in your view even though the safety of moving either people or vehicles through floodwaters is discouraged by the SES in your view they can move through water up to 300 millimetres, that's the difference between you and Mr Cotterill, isn't it? WITNESS WILLIAMS: Yeah, I mean that's, that's certainly what the hazard guidelines say in the AIDR, I also noticed in B5.14 I think of Port Council - Port Stephens Council DCP that it refers to flood evacuation through a what effectively are H2 floodwaters. IRISH: So, do you know whether you can see the low point of the road from the proposed dwelling house? WITNESS WILLIAMS: You could just go down the road and have a look if you needed to, I don't know whether it's directly visible from the house or not. IRISH: So the answer is you don't know. WITNESS WILLIAMS: Correct. IRISH: Do you know what the triggers are for the issuance of a BOM severe weather warning? WITNESS WILLIAMS: No it's normally when they know there's, you know, there's a big weather system coming in and they know some where's going to get a lot of wind or rain or big sea swells then they give them, they issue them to just give people that, that advanced warning. IRISH: Do you know what the number of hours warning are or is it just not issued until there's enough information to warrant the issue of it in the particular circumstances. WITNESS WILLIAMS: Well that's correct because sometimes you could have a very small localised storm cell that just generates that, you know, on very short time but like we've said this isn't a concern for the evacuation of the site because we, we demonstrated that those local conditions aren't going to make it unsafe to evacuate. IRISH: In your opinion. WITNESS WILLIAMS: Yes, in my - well, in my opinion and the, the hazard classifications and so, so on. IRISH: It's possible that the road access could be inundated by the time awareness from either a flood warning or a severe weather warning is received? WITNESS WILLIAMS: Are we, are we talking specifically about - so are you saying - are we talking about the Hunter River system now again? IRISH: Well in either event, either a Hunter River flood warning or a severe weather warning that might be triggered by a localised event both warnings might be-- WITNESS WILLIAMS: I-- IRISH: --not taken up by a particular occupier because they're not listening to the radio or looking at an app and that the road might be inundated by the time they receive or are made aware of such warnings having been issued. WITNESS WILLIAMS: I mean, it's unlikely, I mean, the, the most likely scenario, if you are, if you are faced with the need to evacuate and we've got that moderate flood warning, the most likely scenario by far is that there is no inundation of Hinton Road and Swanreach Road but there is an unlikely possibility that there could be inundation of the evacuation route. But like we've suggested it's, it's shallow and we've, we've adopted a conservative assumption whereby none of that local rainfall can drain out to the Hunter River which it typically does so even under those conservative conditions it, it's not going to compromise that safe evacuation route. IRISH: Now you've amended the FERP haven't you between the version that was attached to the expert report you did with Mr Cotterill and the version that has come in today which I can tell you has become exhibit H. One way in which it is amended on page 3 is it used to say, "It is important to never drive through floodwater." WITNESS WILLIAMS: Yep. IRISH: And that's Commissioner on the last page of-- COMMISSIONER: Yes, I've got it. IRISH: --exhibit 4, "It is important to never drive through floodwaters as they are extremely powerful and potentially dangerous." WITNESS WILLIAMS: Yes. IRISH: And now it says an additional sentence, "If surrounding flood conditions prevent safe evacuation then refuge should be sought within the flood refuge in the roof space of the building." Do you see that? WITNESS WILLIAMS: (No verbal reply) IRISH: So you are counselling against what you otherwise tell the Court is an available safe evacuation which is through what you say is 250 mils of inundation in for example a one in ten year event. You say that that was capable of being traversed by foot or by vehicle. WITNESS WILLIAMS: Correct, yes. IRISH: And yet you say it's important never to drive through deep or fast flowing floodwaters. WITNESS WILLIAMS: Yes. IRISH: So which is it that you recommend to the Court is the touchstone by which the Court should assess the adequacy of the measures provided in relation to this development application? WITNESS WILLIAMS: Yes, both so, so the additions were made because now the applicants are proposing to install that flood refuge. So, so the FERP has been amended to include the presence of that refuge. So because there is a refuge there, it was prudent to mention that, you know, like you said, people may not act upon the advice of the FERP and if they decide to belatedly and you know they suddenly find that the Hunter River is flowing over the landscape then, then they don't try and go through it they, they retreat to the flood refuge. But the expectation is that that's not required, the expectation is that they would have evacuated but that when it's kind of a - because we're obviously proposing this refuge as a safety net and that was to incorporate that safety net within the overall recommendations. IRISH: Now what I want to put to you is there's still a risk to life even if they use the refuge because it's unknown what the duration of a storm is, you've already agreed that you've said that in your expert evidence? WITNESS WILLIAMS: Well the things that are there to, to actually mitigate that risk to life are the flood refuge above the level of the - the extreme flood and the structural certification that that's going to be sound so, so yeah that's what's going to be put in place as I think was in the conditions of consent from council to ensure that that's the case. IRISH: But they don't know the magnitude of the flood or the duration of the flood that will isolate them, do they? WITNESS WILLIAMS: Not when it happens that's why the refuge is set above the extreme flood levels so they are accounting for a worst-case scenario. IRISH: But they may still need to be rescued because of the magnitude of the flood or the duration of the flood? WITNESS WILLIAMS: It's not an impossibility. I mean the - it, the idea is that they obviously supply in the flood refuge and looking to seek shelter in there until those flood waters subside, yeah. IRISH: If you block the toilets as recommended in the FERP, how do you go to the toilet while you're in isolation? WITNESS WILLIAMS: I don't know, I mean I wouldn't be concerned about going to the toilet if I was experiencing an extreme flood, I'd just be thankful I was alive. IRISH: Well could you answer my question? WITNESS WILLIAMS: I thought I did. IRISH: Well, if you have to turn off the power, the gas and the water-- WITNESS WILLIAMS: Yeah. IRISH: --block the toilets in the way described in the FERP-- WITNESS WILLIAMS: Yeah. IRISH: --strong plastic bag filled with earth or sand, how do you go to the toilet while you are isolated for an unknown amount of time during an event the magnitude and duration of which aren't ascertainable. WITNESS WILLIAMS: Yeah, that's different because obviously if you've got a smaller flood event them most of the house is going to be functioning as normal so what you're saying is if we're in a position where you're just when you're forced to retreat to the refuge then we know we've obviously got a very rare event, you know, it might be a one in a thousand year, could be an extreme flood which could be a one in ten, one in a hundred thousand year. So you know, placed in those circumstances I'd probably just urinate and defecate into the surrounding river water, I'd just be thankful that I had my refuge and I survived an extreme cataclysmic event. IRISH: Can you help the Court understand when someone should consider themselves obliged to engage a flood emergency response for the purposes of the bottom of page 2? WITNESS WILLIAMS: That window of moderate warning, so their evacuation is this when the moderate warning of the Belmore Bridge is, is given. IRISH: That's when they should locate the emergency flood kit, switch off the electricity, turn off the gas, turn off the water, block the toilet bowls, cover the shower drains. WITNESS WILLIAMS: Correct, yes. IRISH: So whether they're evacuating or staying they do all of those things? WITNESS WILLIAMS: Yeah, well they should be evacuating. IRISH: I know they should evacuate, if they default to using the refuge it won't be the extreme event where they're urinating and defecating into the passing river, they'll be upstairs in the refuge with no electricity, gas, water, toilet bowl. They'll have a generator from which they could recharge their iPhone but they will otherwise be sitting there, one in four years frequency, by having elected to take refuge in the refuge instead of self-evacuating. Do you see the difficulty? WITNESS WILLIAMS: Yeah well they shouldn't be taking refuge in there, they should be evacuating and the refuge has only been brought in to try and satisfy some of council's concerns, it wasn't part of my original proposition which was flood evacuation. The refuge has been brought in at council's - to try and satisfy some of their wants and needs through this process. STAUNTON: Sorry, Ms Irish, you were just suggesting to Mr Williams that they're going to have to be in the refuge every four years is that what you're saying? IRISH: I was suggesting that they, there is - well, let me clarify. Mr-- STAUNTON: The refuge at the PMF. IRISH: I know the refuge is at the PMF but Mr Williams told the Court that the trigger for engaging the flood emergency response described in the FERP is the moderate flood. STAUNTON: Yes. IRISH: And whether you are evacuating or defying evacuating you do all of the things that are triggered by the moderate flood which we are told will happen approximately one in four years and if you don't-- STAUNTON: It's the way you're asking the question but anyway I'll clear it up in redirection. It'd be easier because of the amount of time that's being spent on this. You'll be able to use the toilet won't you, if you happen to be there and it's the moderate flood? It's only the PMF that's the problem, isn't it? WITNESS WILLIAMS: It depends what the various stages are and obviously if you're probably going to get something in the order of a one in 500 year that .2% AEP before it comes into the house. Obviously the sewer system will be set at a lower than that - I think when we looked that's like a one in a 20 year occurrence. So yeah it'd have to be rarer than like a one in 20 year flood probably before the toilets became unusable. But you wouldn't, I mean, that's the thing, you should be onsite anyway. You should have evacuated that, that is the primary response to manage risk of life." (Tcpt, 17 February 2022, pp 39(49)-47(29))
Neither of the Council experts were questioned about whether they could confirm the accuracy of Mr Williams' knowledge of the availability of Bureau of Meteorology (BoM) data.
Ms Irish raised the possibility that external power might be cut off during flooding, although within the dwelling the FERP requires cutting of services prior to use of the refuge: "IRISH: And the power might be cut by external forces not just by complying with the FERP? WITNESS WILLIAMS: That's a possibility, yes. IRISH: And the continuity of fixed wireless access to receive messages will depend upon access to a temporary power source, that's correct, isn't it? WITNESS WILLIAMS: Yes, I don't understand how these systems work but I would assume so but there may be ways and means. That's not my area. IRISH: What I want to put to you is that if you are now inhabiting this site, instead of as may have been the case with the prior owner merely husbanding the site you might maintain an interest in evacuating livestock and other assets before yourself? WITNESS WILLIAMS: Yes, correct. IRISH: And that might put at risk whether you have self-evacuated before the roads become inundated? WITNESS WILLIAMS: No, no it was - I mean if you've got 24-hours warning time - all of these things that require doing would comfortably fit into there before you drove two minutes to Hinton. And obviously if you believe there wasn't enough time I think you'd save yourself rather than cows if it really came to it, I mean it depends what hypothetical situation we're faced with. IRISH: An ambulance won't drive through floodwaters, I put to you? WITNESS WILLIAMS: I don't know. IRISH: A local authority or local utilities won't drive through floodwaters I put to you? WITNESS WILLIAMS: I don't know. IRISH: I want to put to you that the collective minds of farmers and friends exchanging ideas about what are you doing might triumph over whatever's written in the FERP? WITNESS WILLIAMS: I don't know. It shouldn't because the FERPs informed advice that I don't know how, how people are going to deal with situations. It's out of our control." (Tcpt, 17 February 2022, pp 49(20)-50(12)) and also raised again a concern that people would not carry out the requirements of the FERP (Tcpt, 17 February 2022, p 50(6-8)).
Mr Cotterill was asked about his response to Mr Williams' evidence: "IRISH: … Mr Cotterill is there anything you've said in your two joint reports, exhibit 4 or exhibit 6, is there anything you've said in either of those reports which you would change having regard to what you've heard Mr Williams say? WITNESS COTTERILL: No I don't believe there is, I maintain a reasonable concern that the consequence of failure of any of these controls in a high hazard floodway environment would still constitute a high hazard risk and haven't been mitigated sufficiently for us to support the proposal. IRISH: Thank you." (Tcpt, 17 February 2022, p 52(18-28))
Mr Staunton questioned Mr Cotterill on the warning period for evacuation: "STAUNTON: Okay, now in relation to evacuation times you accept 24-hours as the appropriate timing? WITNESS COTTERILL: I think it's all relative to the flood event and the situation. I think that the longer warning that you can get obviously the better. STAUNTON: Yes but would you accept 24-hours? When I read the joint report the only criticism you have is you say there isn't 24-hours, is that right? WITNESS COTTERILL: That's correct that was in response to the comment that there was a guaranteed 24-hour warning time. STAUNTON: Yes and now you've been provided with additional modelling, is that correct? WITNESS COTTERILL: I've been provided with additional output from the model, that's correct. STAUNTON: You haven't taken issue with anything that's in that, within that output that's been provided to you, have you? WITNESS COTTERILL: I have no reason to take issue with it, I take it in good faith. STAUNTON: Okay, thank you. Now in relation to evacuation as I understand it the concern you identified with respect to guaranteeing 24-hour access was a flash flood in the local catchment, is that correct? WITNESS COTTERILL: No the main issue I have is that it's in a high hazard floodway area and therefore self-evacuation isn't an acceptable option. STAUNTON: All right, well let's go to the joint report, have you got a copy of your joint report which is exhibit 4? WITNESS COTTERILL: Sorry, just remind me is that the one with just Mr Williams? STAUNTON: Yes, the first one, sorry, Mr Cotterill, yes. WITNESS COTTERILL: Yes, I do. STAUNTON: Yes, I just want to take you to paragraph 35. That was the concern you expressed with respect to the 24-hour notice. WITNESS COTTERILL: I'm just obviously scrolling down through the document at the moment. Yeah, correct I make the statement that the development has no guarantee of a 24-hour warning time due to the potential flash flooding, that's correct. STAUNTON: You've been provided with additional information in relation to that, haven't you? WITNESS COTTERILL: In relation to flash flooding, that's correct, yes. STAUNTON: With respect to your concern about the 24-hours as I understand it your concern now relates to inundation of the access road within that period of time, is that right? WITNESS COTTERILL: Yes, that's one scenario of concern, that's correct. STAUNTON: Okay what's the other scenario. WITNESS COTTERILL: There are numerous scenarios of concern but that's one. STAUNTON: I'm talking about in relation to paragraph 35 and is the difference between you and Mr Williams as to whether or not you should drive a vehicle through the water? WITNESS COTTERILL: Yes there is a - there appears to be a difference of opinion there although Mr Williams did also mention that you shouldn't drive through floodwaters. STAUNTON: Yes, but it would depend upon, wouldn't it, like obviously if you're on the site you wouldn't leave in the PMF? WITNESS COTTERILL: Me personally? STAUNTON: Well there's a difference between a level of five metres of water and 250 mil of water isn't there? WITNESS COTTERILL: I'd agree as a statement of fact, yes. STAUNTON: And in terms of your expert opinion you don't dispute do you that when you look at the hazard categories that you can drive a vehicle through water up to 300 mil. WITNESS COTTERILL: I don't agree with that statement in its entirety, no. STAUNTON: Okay what don't you agree with in that statement? WITNESS COTTERILL: So there is a reference to material that's in the floodplain development manual as well as other places that suggests that it's generally safe to drive a small vehicle through waters up to 300 mil in depth. There's no dispute in that. It does say generally and obviously the caveat is that you know definitively that that's the conditions, so say it's laboratory conditions for instance? A small vehicle is less likely to have experienced buoyancy impacts to the extent that it washes away. There are numerous other concerns though in a real life scenario. For instance the road is slightly higher than say the verge of the road, the crown of the road is higher than the verge of the road or the table drain beside it or the culvert in the creek adjacent to the house that you have to cross across in the road. I don't want to waste the Court's time so I won't go through all the possible scenarios where it can go wrong but I maintain a reasonable concern that in a potentially high hazard floodway you try and self-evacuate without that knowledge the flood waters are unlikely to be very clear. You're often going to have an intense driving rain so that if you are in a vehicle during such an event you're going to have your vision impaired further. Yes, I'll leave it at that for now." (Tcpt, 17 February 2022, pp 53(4)-55(13))
At several points in this passage Mr Cotterill accepted the results of Mr Williams' modelling (for example on Tcpt, 17 February 2022, p 53(25-26)). There is no evidence that Mr Cotterill, or any other Council engineer, had carried out any modelling, either involving different models, or different assumptions of the values of parameters to be used in the same models employed by Mr Williams. The joint reports do not contain evidence of any questioning of the models - Mr Williams' results were accepted - the difference between the parties related to how the results of Mr Williams' modelling could be interpreted and applied in evaluation and decision making.
Mr Williams was asked about the responses of those persons who were likely to be present in the dwelling and who might be required to respond to a flood situation. "STAUNTON: So now in relation to this evacuation people who live on this side are going to be familiar with the road conditions aren't they? WITNESS COTTERILL: When you say road conditions you mean the alignment of the road? STAUNTON: Yes, the alignment of the road? WITNESS COTTERILL: I would expect that someone who lives locally would pretty quickly understand the alignment of the road. STAUNTON: And the elevation of the road? WITNESS COTTERILL: Yes, yeah, I suppose relative to visual indicators, yes I suppose, yes. STAUNTON: So they would be able to judge the depth of floodwater and the velocity of the floodwater wouldn't they? WITNESS COTTERILL: So the classic advertising material that's provided by the State government will often show a road before flooding, during flooding where it's obscured and then after flooding when the road is washed away. So I suppose that I would expect that they'd have an understanding of what they expect to be the elevation of the road. But no guarantee that they have a true understanding of the nature of what lies below a floodwater which is why the advice is do not travel through floodwaters. STAUNTON: Yes, now in relation to the warning time of 24-hours, you told me that you accepted the outputs of the modelling from Mr Williams. Do you agree in the worst case scenario of the PMF event for the flash flooding that the level is the level of an H1 classification is only exceeded for an hour? WITNESS COTTERILL: The actual duration I don't think was delved into but certainly the depth was in the order of the H1 classification. But again that, that level is relative to the assumed existing level which is also in dispute, between 2.4 and 2.5 metres. If that level drops say on an unsealed section of road then that would change obviously but the depth is what's fixed and perhaps the road level changes below it or perhaps there's some other obstruction on the road as a result of the intense rainfall event which often is attributed to, sorry, accompanied by a high winds,..(not transcribable)..debris, ..(not transcribable)..-- STAUNTON: Do you know the probability of the coincidence of the flash flood and the river flood? WITNESS COTTERILL: Well look all floods are obviously very different. We've got two separate recurrence intervals that have been provided to me kindly by Mr Williams. One which ranges up to or the 1% and the 10% have been the focus of the discussion, which are comparable. Then obviously there's between minor and moderate where it inundates. Whether or not those two coincide again I only have a reasonable concern as the consequence of failure is that you're in a high - stuck in a high hazard floodway environment. STAUNTON: Yes, well you're not stuck in a high hazard flood environment to the extent that if you can't get out of the site there is now a refuge above the PMF. That's correct, isn't it? WITNESS COTTERILL: The proposal includes a PMF flood refuge, that's correct. STAUNTON: So, just going back to some questions that Ms Irish asked Mr Williams, if someone didn't evacuate for any reason whether it be complacency or plain ignorance they would become aware of the hazard when water entered the house, wouldn't they? WITNESS COTTERILL: I would imagine that unless they were asleep in their bed or similar or unconscious due to misfortune yeah, yeah, you'd hope that someone would notice water entering the house. STAUNTON: Yes and it's at that point that you need to move to the refuge, isn't it? WITNESS COTTERILL: I think there were a number of activities but I can't recall that were obviously listed within that FERP that need to be undertaken, along with any other potential preparation. The duration of warning again I still have reasonable concern about but yes I suppose a rational person if they saw water entering their house would seek higher ground as a priority regardless of whether or not they'd undertaken all of those tasks. STAUNTON: Why would they undertake some of those tasks and ignore the critical one which is to leave. If they're an ignorant person who's not having regard to any of the FERP why would they be doing any of those things? They feel the water or see the water at their ankles and they go the PMF refuge, wouldn't they? WITNESS COTTERILL: I take exception to the assumption that they were an ignorant person, they, they might with all the best of intentions not be able to undertake the FERP, FERP sorry. STAUNTON: All right, well I'm talking that there's various scenarios Mr Cotterill and the one I'm talking about is someone ignoring the FERP which was one of the propositions that were put. WITNESS COTTERILL: Or that they'd be unable to undertake FERP, yeah. For whatever reason. STAUNTON: Yes, okay. So we have a refuge where they can go and they will be in the worst case flood, they will not be exposed to risk unless they leave that to travel into the floodwaters, that's correct, isn't it? WITNESS COTTERILL: I would disagree with that statement, there's always a residual risk and the problem is a consequence of failure is that they're in a high hazard floodway environment." (Tcpt, 17 February 2022, pp 55(15)-57(17)) "STAUNTON: Now in the DCP, the DCP contemplates refuges as an alternate solution to evacuation access doesn't it? WITNESS COTTERILL: As a performance based solution no high hazard floodway. STAUNTON: Sorry? WITNESS COTTERILL: So that there are a couple of performance based solutions-- STAUNTON: What's the answer to my question? WITNESS COTTERILL: Sorry I don't understand the question, I think in this context there's performance based solutions so there's no alternative. STAUNTON: Well-- WITNESS COTTERILL: There's a list of factors that need to be considered which are more or less mirror the Floodplain Development Manual and-- STAUNTON: They're non-exhaustive, they say including and what I'm suggesting to you is in your LEP you have a refuge when you have got a flood that when you have the maximum flood you have a refuge that's above it. That's correct, isn't it?" (Tcpt, 17 February 2022, pp 60(49)-61(23))
Mr Staunton's reference to the LEP was a slip of the tongue and it was corrected to DCP. "STAUNTON: Yes, so DCP at least in I think it's B5.14 talks about where you can't provide evacuation access you can have a refuge. See that? WITNESS COTTERILL: Yeah, it says that it must be provided, yeah, that's correct. STAUNTON: There's nothing that says you can't have a refuge on as a performance solution on a subject site. WITNESS COTTERILL: No that, that's correct but performance based, I think what you're saying, a performance based criteria don't strictly say what you must have they give us considerations for a merit based assessment or risk based assessments. STAUNTON: Yes that's correct. WITNESS COTTERILL: Yep. STAUNTON: So if you can't get evacuation an alternative is to provide a refuge which is above the PMF so that if you have the maximum flood persons on the site can seek refuge. WITNESS COTTERILL: That-- STAUNTON: Do you agree with that? WITNESS COTTERILL: No, that's not my interpretation of the what the performance based solutions in B5.18, 19, 20-- STAUNTON: But that wasn't my question. I said there's a suggestion that you can have a refuge as an alternate to providing evacuation access. Yes? WITNESS COTTERILL: For, for a different, for a different hazard category there is. STAUNTON: There's nothing that says you can't do it in relation to this land. WITNESS COTTERILL: So sorry you're looking for an exclusionary line. Now there's not an exclusionary line, no there's a list of considerations with this. STAUNTON: Correct, so it's a matter that can be considered and it comes down to, if you can't get out and you want to minimise the risk to life, you have a refuge so if someone disobeys the FERP they have somewhere to go and they are not exposed to the floodwaters. WITNESS COTTERILL: It seems to suggest to me that if you're isolated by high hazard floodwaters you can't have a dwelling or a refuge in a dwelling because-- STAUNTON: Why would you ever need a refuge-- WITNESS COTTERILL: For livestock. STAUNTON: Why would you ever need a refuge if that's the position? The purpose of a refuge is you can't evacuate. WITNESS COTTERILL: Okay, so clearly-- STAUNTON: That's why you have it. Why would you have it? WITNESS COTTERILL: So if you had for instance a mapped height of floodway area there is this DCP contemplates that it could be on the fringe of a lower hazard category so essentially you could mitigate by a huge amount of fill for instance and you could have an area that was previously mapped high hazard floodway but then in effect becomes a lower hazard category because it's connected to broader services having-- STAUNTON: Why would you need a-- WITNESS COTTERILL: --so for instance into Hinton-- STAUNTON: Why would you need a refuge. If you do that, you just leave the WITNESS COTTERILL: Sorry? STAUNTON: --site don't you? WITNESS COTTERILL: So our consideration or our typical expectation for that connection is the 1% level. So obviously you can still have water that rises and traps somebody over this side or over that side of it, if they don't get across the 1% level in time. That's why you'd still have a refuge it's that additional certainty that if they're primarily unable to, for whatever reason, leave their home before that 1% was inundated, which of course is possible, that - there's no contest about that. Then they've got somewhere to go till late rescue or resupply. STAUNTON: Yes and the same applies in relation to the subject site except for your concern that about the high hazard environment. WITNESS COTTERILL: It's a fairly considerable concern about the high hazard floodway environment, yes. STAUNTON: Yes but the very considerable concern in relation to the high hazard environment is it would only come to fruition of people try to leave that refuge during the flood. WITNESS COTTERILL: No so if they're in the PMF refuge they're still isolated and entrapped within a high hazard floodway environment. Anybody who comes or attempts to aid them needs to also be in that high hazard environment. Presumably they've needed to travel across even higher hazard environments of the rivers system, which obviously join in this location. STAUNTON: You accept don't you your DCP contemplates vehicles driving through floodwaters? WITNESS COTTERILL: The DCP gives as a measure or as a description from the Floodplain Development Manual a hazard category which refers to trucks driving through waters, that's correct. STAUNTON: Yes, so to the extent that you say council doesn't allow that, it contemplates it in its controls, correct? WITNESS COTTERILL: I think it's more or less a copy paste from the Floodplain Development Manual as a measure of - see people understand for instance they, they probably struggle or most people would struggle normally with the say a velocity depth product or an abstract term like that. But if the can imagine, okay, what have I seen a LandCruiser drive through or a larger truck drive through, I can understand that. So the Floodplain Development Manual attempts to be a bit a more pragmatic in the way it describes hazards from that perspective. So it discusses a lower hazard, for instance, but unfortunately in this instance, we're in a high hazard floodway. STAUNTON: Yes but the flooding we're talking about which is category H1 and H2 in the table is not a high - sorry, yes, so on. WITNESS COTTERILL: So sorry, that category is obviously an individual point of time based on some assumptions be that conservative or not. I would say that they're probably appropriate assumptions. It doesn't actually change the hazard category of that land. The hazard category of that land remains high hazard floodway for the purposes of the Floodplain Development Manual and its application on this site to land use. STAUNTON: Yes but the purpose of it is, is to distinguish effectively the particular hazard at various depths and velocities, isn't it? WITNESS COTTERILL: The particular risk profile there in one scenario? STAUNTON: Yes. WITNESS COTTERILL: Yeah that obviously has informed some of the discussion that's correct. STAUNTON: The different of opinion between you and Mr Williams is you just say under no circumstances should you drive through it if there's any water on the road is that right? WITNESS COTTERILL: I don't think that's actually difference of opinion. I think there's a difference of risk appetite potentially and whether or not that's advisable or acceptable. But I, I don't think there's actually a difference of opinion based on how the original FERP was written and even the amended FERP still suggests that you shouldn't - there's probably an overreliance I would suggest from the applicants that people have a good understanding of exactly how fast the water is or how - how deep the water is. I don't think that you can reliably assume that with floodwaters. (Tcpt, 17 February 2022, pp 61(43)-64(45))
Mr Cotterill's response (at Tcpt, 17 February 2022, p 64(4-12)) to Mr Staunton's comment that the PSDCP contemplates vehicles driving through floodwaters, that the wording was "more or less a copy paste from the floodplain development manual" is not supported by any evidence. The PSDCP was developed by the Council, but no evidence was provided as to how the process was carried out, and which Council officers took part. Mr Cotterill does not indicate that he was part of the process, but given the importance of flooding issues it would be surprising if there had been cutting and pasting from the Floodplain Development Manual (which would not of itself have been inappropriate) without there being careful consideration whether the words would achieve the desired outcome. Mr Cotterill's wording about "cut and paste" could imply that the cutting and pasting was all that occurred, without there having been any thoughtful analysis.
Mr Staunton questioned Mr Cotterill about risk: "STAUNTON: The different of opinion between you and Mr Williams is you just say under no circumstances should you drive through it if there's any water on the road is that right? WITNESS COTTERILL: I don't think that's actually difference of opinion. I think there's a difference of risk appetite potentially and whether or not that's advisable or acceptable. But I, I don't think there's actually a difference of opinion based on how the original FERP was written and even the amended FERP still suggests that you shouldn't - there's probably an overreliance I would suggest from the applicants that people have a good understanding of exactly how fast the water is or how - how deep the water is. I don't think that you can reliably assume that with floodwaters. STAUNTON: Okay well I-- WITNESS COTTERILL: ..(Not transcribable)..-- STAUNTON: I'll get Mr Williams to address that in due course. Sorry I'll just have to go back to your joint report. In relation to reducing risk on this site you accept don't you that providing the mound reduces risk? WITNESS COTTERILL: Any level that you can be raised above the floodplain particularly in a high hazard floodway environment reduces risk. STAUNTON: Okay and you agree effectively then it follows that the construction, particular construction of this house which is above the flood planning level reduces risk, is a measure that reduces risk. WITNESS COTTERILL: I've only seen architecturals and a general structural engineering advice. It doesn't constitute a structural certification or level of detail for a construction certificate for instance. But I believe it's the intent and I do accept that it's possible that at a cost to build a structure which can withstand a high hazard floodway. STAUNTON: And there's a condition proposed to be imposed if consent is granted requiring that certification isn't there? WITNESS COTTERILL: That's the intent of the consent, yes. STAUNTON: Yes okay. Then you also accept, don't you, that providing the refuge above the PMF level is a reduction in risk on this site? WITNESS COTTERILL: Yes it does reduce the risk. STAUNTON: And you also agree, don't you, that the provision of the Flood Emergency Response Plan is a measure that reduces risk on the sight? WITNESS COTTERILL: It is a measure that reduces risk on the site, yes. STAUNTON: You agree, don't you, fundamentally with the provisions of the FERP that require evacuation? WITNESS COTTERILL: Yeah, the principal idea that evacuation should be undertaken, I have a real concern about the triggers. I think they need to be much earlier. STAUNTON: Sorry, you mean earlier than 24-hours? WITNESS COTTERILL: Yeah, yeah, I mean earlier than the moderate flood warning or, you know, the severe weather warning I guess is going to be the best that you get for, for this scenario. STAUNTON: Right well you haven't said that in your evidence before have you Mr Cotterill? WITNESS COTTERILL: No what I said was there is no guarantee of the 24 hour-- STAUNTON: Yes, so you've never put that proposition, you're saying that for the first time in the witness box. Is that right? WITNESS COTTERILL: That I think that you should have the longest possible warning time for a flood? STAUNTON: Yes. WITNESS COTTERILL: Yes. STAUNTON: Then I mean the longest possible warning time could be anything, couldn't it? WITNESS COTTERILL: I agree, like for instance if you were notified that it was a high hazard floodway maybe don't occupy it at all. STAUNTON: Or someone could say look we think there is going to be a storm in six weeks, but that's not appropriate planning is there, like we've got to look for a trigger that is a trigger that is available to people to be aware of. WITNESS COTTERILL: I mean-- STAUNTON: That's correct, isn't it? WITNESS COTTERILL: --if you're not able to reside there and you've got livestock there then moving them to high ground includes ahead of time if that's what's convenient however many trips that might take. STAUNTON: What's the answer to my question, Mr Cotterill? WITNESS COTTERILL: Sorry I might have over spoken you and missed the question. STAUNTON: Or you're answering the question I asked but you were trying to answer the question I asked but you didn't. I said you need to have a trigger that people can ascertain? WITNESS COTTERILL: That's correct in a lesser hazard scenario a trigger and a FERP would be appropriate but in a high hazard floodway it's not an appropriate control. STAUNTON: Yes. WITNESS COTTERILL: I suppose I wouldn't want to mislead the Court into thinking that there is an appropriate trigger to evacuate a high hazard floodway, I would suggest that it shouldn't be occupied. Those that sadly do already occupy or regretfully occupy that area would be best to leave as, as soon as they are, are able or as regularly as they're able. STAUNTON: Yes, so really there's the possibility of warnings prior to 24 hours, isn't there? WITNESS COTTERILL: You can be put on Flood Watch, that's correct. STAUNTON: The worst case scenario is that you have 24-hours from when the moderate warning is issued at Belmont Maitland gauge, correct? WITNESS COTTERILL: My understanding is that that is attributed to be described but that's not necessarily the trigger for you being isolated in the high hazard floodway in this location. STAUNTON: Yes, sorry but the isolation you're talking about can you please tell me? WITNESS COTTERILL: So there's, there were the two factors that we discussed, there was isolation as a result of..(not transcribable)..three I guess if you add them together. The isolation from the, the river which is the more obvious one and the more generally regionally focussed one then there's isolation as a result of potential flash flooding, or intense local rainfall, local catchment flooding. Then there's the summation of the both of those which may or may not join. STAUNTON: Yes, so in terms of the river warning, it's adequate, isn't it, 24 hours WITNESS COTTERILL: No. STAUNTON: Why not? WITNESS COTTERILL: No I - because in a high hazard floodway environment you shouldn't be occupying there. So that there's no adequate warning time. STAUNTON: Let me be very specific. We've got to travel a maximum of three minutes, are you seriously suggestion in a 24-hour period when the river floods that that is insufficient warning to carry out that evacuation? WITNESS COTTERILL: Depending on the list of activities and, and how successful they are but assuming they're successful I, I believe that there's a possibility that a person could enact all of those things based on river flooding, yes. STAUNTON: Then in relation to your flash flooding I just want to confirm that the difference between you is whether or not you go through the water at the low point at Hinton Road and Swanreach? WITNESS COTTERILL: I think there are a few other probably differences of opinion that we weren't asked about in terms of the assumed level of the road below the floodwater or, or the conditions if it. There might not be effectively a road at all or it might be partially blocked. You might also accidently in driving rain navigate away from the road but there is theoretically, in lab conditions, a change or it's considered regularly or generally sorry safe for a small vehicle to traverse less than 300 mils of, of water, yes. STAUNTON: Now in relation to - sorry, I think I asked you, you haven't done any calculations in relation to the probability of having the flash flood and the river flood-- WITNESS COTTERILL: No we've been agreeable to the applicant's reports and outputs in that relation. STAUNTON: Yes, okay. Now, we talked about, I mean, I don't know if I really have to talk to you about urination and defecation in the refuge but it's only when the water enters the house isn't it that you've got an issue? WITNESS COTTERILL: I'm not sure if I am the appropriate expert to discuss that but I'm happy to from an..(not transcribable).. -- STAUNTON: No if you're not the appropriate-- WITNESS COTTERILL: --perspective. STAUNTON: --expert don't worry about it, I was just going to suggest a bucket but I agree it's - maybe we need a plumber. Now there was a concern in relation to SES, SES generally when you write to them they provide advice but they say they don't assess individual development applications, that correct? WITNESS COTTERILL: What they've referred to there is we - there used to be a practice I believe of referring the, the FERPs to them, the Flood Emergency Response Plans. They considered it to be too much of a liability to comment on these. Potentially there was also a timing issue where there was a general agreement made that they would no longer be referred to but if a flood risk was deemed acceptable by the council officers they'd apply that standard condition and empower an owner, I guess, to within a framework that we generally provide them with some general advice, develop a FERP. STAUNTON: Well you read the referral, I mean they say unless there's some critical factor indicating otherwise the NSW SES does not generally involve itself in individual DAs. Do you agree with that? WITNESS COTTERILL: I'll take your word for it, I don't have that in front of me right now. STAUNTON: You don't have the referral, okay. WITNESS COTTERILL: I'm not, I'm not surprised to hear that. STAUNTON: Then in the it's an unlikely event isn't it that someone would have to take shelter in the refuge on this site, having regard to the measures that are in place? WITNESS COTTERILL: Sorry, are you suggesting it would be an unlikely event? STAUNTON: I am. WITNESS COTTERILL: It, it seems as though the, the FERP would require them to attempt to leave primarily - so in the instance if you're talking about the recurrence intervals, I believe the way the Floodplain Development Manual refers to it is as a foreseeable risk. So instead of misguiding the public by considering these events unlikely, relative to say a 1% or a 10% or a PMF annual exceedance probability, we talk about foreseeable risk because the language again used in the Floodplain Development Manual is that inevitably these more severe events will happen and there will be repercussions and in a high hazard floodway the consequence of failure of those repercussions or any misadventures that occur are more severe which is why we take this approach and not supporting dwellings in a high hazard floodway. STAUNTON: Sure, do you remember my question? WITNESS COTTERILL: Yeah, it was, it was asking me about the likelihood. STAUNTON: Yes so how frequently, I'm going to suggest to you that people are not going to need to shelter in this refuge or in this house frequently? WITNESS COTTERILL: I, I would suggest that I would prefer to use the language that it's a foreseeable risk and that I've got concern for it. But in terms of annual exceedance probability I suppose you could generally refer to it as being unlucky if you happen to be there." (Tcpt, 17 February 2022, pp 64(34)-69(30))
Mr Staunton also questioned the Council's planner Mr Mitchell, who had not visited the site but had relied on photographs (Tcpt, 17 February 2022, p 74(23-24)): "STAUNTON: Mr Mitchell, thanks you've turned on your camera. You expressed a concern with respect to this area of the land not being the appropriate location for the dwelling house. Do you recall that? WITNESS MITCHELL: I recall expressing concern or noting that with reference to the development control plan we're required to consider whether there are less hazardous parts of the land that could be developed. STAUNTON: Yes. I think it's in B5.20 "Whether there is other land on the site with lower flood risk whether the development could be located." WITNESS MITCHELL: Yes, that's, that's where that control's located. STAUNTON: Yes and the mound that was approved by council with the contemplation of residential use has been constructed? WITNESS MITCHELL: I'm-- STAUNTON: Do you agree with that? WITNESS MITCHELL: --I'm not aware if it's been constructed. In fact there's a condition that on that consent that required the, the beneficiary of that consent to provide a survey of the final levels to be provided to council and we don't have that on record, so I - I couldn't say that the mound has been completed. STAUNTON: Let's move away from completed, have you been to the site? WITNESS MITCHELL: I haven't actually been to the site. I've relied on photographs from the-- STAUNTON: Mr Cotterill, have you been to the site? WITNESS COTTERILL: Sorry, just getting off mute. Yes, I've been to the site several times. STAUNTON: Have you see the mound? WITNESS COTTERILL: So there was a, a mound and there were obviously recent works. I think as Dylan alluded to we haven't had a confirmation of survey to the extent of those and obviously I don't carry a survey equipment in for these kinds of inspections. STAUNTON: No but you're an engineer and there's not an insubstantial amount of fill that's been placed on the land for the purposes of the mound, is there? WITNESS COTTERILL: To, to use a layperson's term I suppose you could say there's that, yep. STAUNTON: Yes, okay thanks. So, sorry Mr Mitchell, I'll come back to you. So if there's a substantial amount of fill that's already been placed on the land in an area where consent has been granted, you aren't seriously suggesting, are you, that that fill should be relocated to somewhere else on the site? WITNESS MITCHELL: I think you used the phrase not insubstantial amount of fill, so I would suggest that a substantial amount of fill might, your know be flood free but it certainly appears to be far from flood free particularly for a high hazard floodway. STAUNTON: Ms Irish said in opening that council's understanding is that it's been built to 5.7 with the other fill onsite to take it up to the 6.2, did you hear that? WITNESS COTTERILL: I think it was based on the plans that we've been provided but there's not a worker's X that have confirmed the level so there was that uncertainty. STAUNTON: Yes, well someone must have given those instructions? WITNESS COTTERILL: Again based on the plans we were provided by the applicant. STAUNTON: Right, okay so does that mean there's an acceptance it's there to up to 5.7? WITNESS COTTERILL: We're working on, on that assumption I think, yeah. STAUNTON: Okay. So sorry Mr Cotterill, I'm going back to Mr Mitchell on the planning issue, so Mr Mitchell are you suggesting that all of that fill should be taken up and moved somewhere else on the site? WITNESS MITCHELL: No I've never suggested that that I'm aware of. STAUNTON: So you haven't said in your evidence that it should be located somewhere else on the site further away from the river, closer to Hinton Road and the fill, the mound, should - there should also be a mound and the other mound removed-- WITNESS COTTERILL: I think that was my-- STAUNTON: --is that what you said? WITNESS COTTERILL: --..(not transcribable).. sorry Mr Staunton? WITNESS MITCHELL: Yeah, to answer that question, I don't believe I've made a comment as such. STAUNTON: So then can I assume then you having not made that comment that you would agree wouldn't you that the area where it's proposed given the amount of fill and the proximity to the existing infrastructure and the site, would satisfy, wouldn't it the inquiry in B5.20, the first bullet that we were talking of?" (Tcpt, 17 February 2022, pp 73(45)-75(46))
The reference to B5.20 refers to the third of the 3 sets of objectives for performance based solutions provided in B5.D of the PSDCP. "WITNESS MITCHELL: And the question is whether or not relocating that fill to an area closer to Hinton Road, the question is whether that would satisfy that clause? STAUNTON: Well I understand you haven't suggested that. You're saying you have never suggested that? WITNESS MITCHELL: I'm saying-- STAUNTON: Is that right? WITNESS MITCHELL: --what I've said is that when considering this provision of the DCP I note that there are other locations on the site that would be of a lesser flood risk than the one proposed. STAUNTON: Sure but that would require, wouldn't it, the establishment of another mound? WITNESS MITCHELL: Yes it, it would if it was to provide any sort of flood immunity. There's no reason the applicant couldn't propose to do it without it, but it's a hypothetical. I would expect that they would fill it, yeah. STAUNTON: That's not orderly and economic development is it to, if you accepted Mr Cotterill's advice which is you should remove the current mound and put the mound somewhere else that's not orderly and economic development is it? WITNESS MITCHELL: I wouldn't agree with that statement. STAUNTON: Well the council approved it, the mound specifically in contemplation of the potential for the construction of a dwelling house, didn't it? WITNESS MITCHELL: What I understand is that it was put forward in the application that the mound may in the future be used to support a development application for a dwelling but it doesn't limit it to that purpose. It was approved as earthworks, there are other uses for mounds, stock refuge, for example. STAUNTON: Yes but you know don't you that the SEE specifically said the primary purpose was for a future residential dwelling? WITNESS MITCHELL: I acknowledge that the SEE had commentary to that effect. STAUNTON: Then in relation to the height, it was proposed originally at 5.7 wasn't it? WITNESS MITCHELL: I believe that's correct. STAUNTON: The requirement was to increase that to 6.2 because it was proposed for future residential dwelling. WITNESS MITCHELL: It was a comment from the engineering referral, I recall and the request made by the development planner at the time. Inherently it would provide additional flood immunity compared to what was proposed. So that, that would likely be the rationale behind that decision. I didn't issue it myself but there is rationale in requesting that. STAUNTON: Yes, sure but one would have thought that if you had a statement of environmental effects that made it clear that the primary purpose was for a future residential dwelling, albeit subject to another DA that council specifically assessed it on that basis and required it to be increased to 6.2 that an assessment was undertaken wasn't it in relation to the appropriateness of the location of that mound for a potential future residential dwelling. WITNESS MITCHELL: I think that there was contemplation and forethinking whether an application might be lodged in the future but it would be a hypothetical scenario and-- STAUNTON: Well it's not hypothetical-- WITNESS MITCHELL: --subject to its-- STAUNTON: I'm sorry-- WITNESS MITCHELL: Well at the time it would have been 'cause it hadn't occurred. STAUNTON: Well it's not hypothetical at all because it was put forward in the SEE, you've got to consider the likely impacts of the development don't you under s 4.15? WITNESS MITCHELL: Perhaps. STAUNTON: Yes and you were provided with information from the applicant that for the proposed purpose for the mound. WITNESS MITCHELL: Yes, that's correct, that was within the application, yes. STAUNTON: Yes and why would council make an assessment that says increase the fill level because the applicant's flag that they're going to lodge a DA for a dwelling and not contemplate or consider whether that's the appropriate location for the dwelling and the mound? WITNESS COTTERILL: That advice was actually back when we-- WITNESS MITCHELL: The DCP was actually different at that time. That's something that would have to have been, would have to be considered. I can only, I can't confirm what the rationale was I can only confirm what was in writing and the requests, the details of that request. STAUNTON: Yes and no one ever suggested in the assessment of the application that the location where the mound was approved is an inappropriate location for a potential future dwelling, did they? WITNESS MITCHELL: I'm not aware of that specific issue being raised, no. STAUNTON: Okay and then in relation to you talked about a changing controls, the council had all of the relevant flood information didn't they at the time the mound was lodged and at the time the DA for the dwelling house was lodged? WITNESS MITCHELL: What do you refer as the relevant information? STAUNTON: Sorry the relevant information in relation to the flooding characteristics of the land. WITNESS MITCHELL: Well it would be each application would be assessed based on the current information at hand at that time. STAUNTON: Yes but all of the flood studies were available, weren't they, at the time the mound application was lodged? WITNESS MITCHELL: You'll have to specify which flood studies but I may actually have to refer to Mr Cotterill for advice. STAUNTON: Mr Cotterill, do you know the answer? WITNESS COTTERILL: Look I can probably give you an unsatisfactory answer. The, the flood studies are dated around that time, their adoption obviously is after that and then they're - there's obviously a natural lag where a huge body of work is undertaken where we go through and update the flood hazard categories. So, for instance, you'll probably note that the levels are very similar when it was mapped in areas high hazard storage as opposed to high hazard floodway. It probably wouldn't have taken too much additional work at that point but that had to be prioritised. After the 2015, 16 events there was a lot more money put into engineering services to prioritise that project as one and it's, it's still ongoing. Those bodies of work to refine including projections for climate change, rainfall intensity et cetera, so Dylan's quite correct in saying that they do their assessment based on the best available information provide to them by my team in engineering services. Yes, does that answer your question. STAUNTON: Yeah, it answered my question but I've got some follow-up questions for you. So there was a planning certificate issued that said that this site was effectively high hazard storage. WITNESS COTTERILL: Yes, I'm aware of that dated 2018, I think from memory. STAUNTON: Yes and did you make any further inquiries as to when the classification was changed to a high, to a high hazard floodway? WITNESS COTTERILL: Yes, okay, yeah so I was notified of that change when we undertook the assessment for the subsequent flood refuge for that area. Obviously when there's a huge body of work and a huge, well a multitude of catchments, a multitude of flood studies we have to tie together the, the engineering services team will drill in and prioritise considering the characteristics of one area when either a) a flood certificate is applied for or b) if an assessment is made. So it was actually the latter trigger in April 2019 from recollection where that assessment was done and that, that zeroed in approach was taken. Obviously then we prompted another flood certificate when it was realised we'd been referring to in our reports the flood certificate which was technically the flood referral. So we got the flood certificate that you referred to as your Valentine's Day gift. STAUNTON: Yes so that was what, two years after the development application was lodged. WITNESS COTTERILL: That's correct, two days prior to this hearing commencing. STAUNTON: Yes and the development application was lodged obviously prior to your referral and was it the case that it was high hazard storage at the time the development application was lodged? WITNESS COTTERILL: I don't believe it would have been because obviously once the referral was made and attended to they could look at the information that they had at hand at that time and form the conclusion correctly that it's high hazard floodway. STAUNTON: Yes but they didn't have any additional information Mr Cotterill to what they had when they issued the previous flood study-- WITNESS COTTERILL: No they-- STAUNTON: --sorry flood certificate. WITNESS COTTERILL: No they just had to analyse it, that's correct. So they hadn't been provided with flood certificate by the proponent of that application. That flood certificate would have provided that information to the best of my knowledge. STAUNTON: Okay, thank you. Now, Mr Mitchell, just going back to the refuge, you're now satisfied with the proposed amended plans that the matters that are specified as being required for a refuge at least in B5.14 are satisfied, is that right? WITNESS MITCHELL: Yes, so the dot points, yeah listed within that, that clause, that control." (Tcpt, 17 February 2022, pp 76(1)-80(2))
B5.14 is one of the development controls included in Part B5 of the PSDCP and deals with onsite refuges: Emergency onsite flood refuge If evacuation egress from residential accommodation, a commercial premises, an industrial premises, fill or development vulnerable to emergency response and critical infrastructure to flood free areas cannot be achieved via a route that is flood free in the current day 1% AEP flood event or is a low hazard flood area, an onsite flood refuge must be provided meeting the following criteria: • Is located above the PMF level; • Is intrinsically accessible to all people on the site, plainly evident and self directing; • Is accessible in sufficient time for all occupants with fail safe access and no reliance on elevators; B5.14 • Has unobstructed external access for emergency boats during flooding; • Caters for the number of persons that could reasonably be expected on-site at any one time (approx. 2m2 per person); • Provides adequate shelter from the storm and has natural lighting and ventilation; and • Contains sufficient clean water, a first aid kit, portable radio with spare batteries and a torch with spare batteries. Note: If a flood refuge is required, the DA must be accompanied by structural certification.

Mr Mitchell agreed that the proposed refuge satisfied the dot points listed in the control (although I note that earlier, in the joint report Ex 6 p 6 he had said that compliance with B5.14 was not achieved).
From the point of view of implementation, the agreement that compliance was achieved provides an assurance that from Council's perspective B5.14 does not constitute a barrier to approval. Figure BF of the PSDCP requires a performance based solution and so the objectives of B5.18-B5.20 must be met. The development is not one which is identified as 'suitable' subject to development controls B5.1-B5.17. However, the lower left box in Figure BF indicates that performance based solutions must meet the objectives of the relevant controls in B5.1-B5.20. Controls B518-B5.20 are mandatory, and B5.14 is clearly relevant.
Given that the parties agree that the objectives of B5.14 are satisfied, then the question that remains is - are the objectives of B5.18-B5. 20 also satisfied?
After the evidence from the Council officers had been heard, Mr Staunton sought responses from Mr Williams: "STAUNTON: Can I just ask you have you done any - did you do analysis in relation to the probability of, sorry, the like frequency of needing to evacuate the property? WITNESS WILLIAMS: Yes the likely frequency of needing to evacuate the property is that approximately what's once in four years. STAUNTON: Yes okay. Then you heard some evidence given in relation to that it was suggested by Mr Cotterill that your trigger of the moderate flood level warning wasn't sufficient and it should be something more than that? WITNESS WILLIAMS: I did hear that, yes. STAUNTON: What's your position in relation to that? WITNESS WILLIAMS: I would say I disagree and because they're, yeah that has some concern of this local catchment flooding compromising that available evacuation time and then I think that we've demonstrated with the additional analysis that's been done that it doesn't compromise the flood evacuation route and therefore we don't need to be concerned about and its potential impacts on the proposed evacuation in the FERP." (Tcpt, 17 February 2022, p 80(12-32)) "STAUNTON: Then he said there was an agreement I think or suggests there was an agreement between you and him about not driving through the floodwater." (Tcpt, 17 February 2022, p 80(48-50))
Mr Williams responded, but there was considerable interference on the AVL so that Ms Irish did not hear what had been said. Mr Williams repeated his responses: "WITNESS WILLIAMS: Yes, I can so, so that was the no, you know, these concerns were what were centred around the potential for intense rainfall, local catchment, flash flooding to compromise our available 24-hour evacuation time for the Hunter River and I think the analysis that we've, we've undertaken to, to look at that scenario has demonstrated that it doesn't compromise the, the safe evacuation route that we've proposed in the FERP. STAUNTON: I think I was about to ask you a question about the - sorry did you hear the one about the depth of the water, Ms Irish? IRISH: No. WITNESS WILLIAMS: Okay, so like the last, the last question, was this about agreement on-- STAUNTON: Yes there was a suggestion there was an agreement between you and Mr Cotterill suggested there was an agreement between you and him in relation to driving through the water and said you don't do it. WITNESS WILLIAMS: Sorry, there's just a bit of interference and noise, I don't know where it's coming from but yes, so, I, I think we've got a difference of opinion. He said we shouldn't drive through any water. I would say that it's complete safe to drive through the water that we've predicted in this scenario and we'll keep reiterating that it was a conservative scenario but anyway if that happens you can still safely drive through it but obviously I would not advocate the driving through what were very deep and/or very fast flowing waters with a flood hazard that would obviously make it unsafe to do so. STAUNTON: Do you have any concerns with respect to a person being able to discern the level of the water to make that decision to leave the site in a flash flood? WITNESS WILLIAMS: No not at this location, no. STAUNTON: Finally, you say that your modelling calculations are conservative. WITNESS WILLIAMS: Yes. STAUNTON: And Mr Cotterill said they're appropriate, can you please tell the Court why you say they are conservative? WITNESS WILLIAMS: Yeah, there's a few reasons behind the conservatism, I mean, one of which is that clearly if we're required to evacuation for a response to or anticipation to a forthcoming Hunter River flood event it's far more likely that we aren't happening to have a coincident rare, you know, unlikely scenario happening locally too. It's just straightaway assuming the two are coincident it is much less likely than not coincident then secondly, you know, because we wanted to undertake an analysis that couldn't then maybe it's sort of criticised for not being conservative enough we've assumed. 'Cause again, the most likely scenario if you get a local flash flooding condition is that, is that that service by the local drainage and discharge is to the Hunter River so what we've done is we've assumed that that can't happen so all the rainfall that falls on the catchment that we're modelling stays trapped there in the local topography and that's what's the conservatism behind that and what percentage. STAUNTON: Anyway it would give an indication of a probability of it occurring? WITNESS WILLIAMS: It could be a bit like how long's a piece of string. It's very easy to say it's far more likely that it's just not going to be coincident and that it's not going to happen. It's what we're looking at it's really what's possible but it's certainly not probably. It's unlikely but it's possible. (Tcpt, 17 February 2022, pp 81(22)-82(36))
Mr Williams' conclusion that circumstances where a local rainfall event stayed trapped was possible but not likely is not one that can be confirmed. Entrapment of water from a flash flood would require there be a Hunter River flooding event (likely to occur in 1 in 5 years) coincident with the flash flooding. There is agreement that this is unlikely to occur. However, localised rainfall events leading to flash flooding have, in recent years, increased in frequency across NSW (although not necessarily at individual locations) so that while the coincidence of the two separate events will remain unlikely, it may occur more frequently than Mr Williams assumes.

The expert witnesses

Mr Staunton made the suggestion that Mr Cotterill was acting more as an advocate than as an independent expert whose responsibility was to the Court. I would reject this, but I do think that at times Mr Cotterill was running close to the line, but would put this down to his lack of experience of appearing as an expert in Court. Both flood experts had limited experience in Court, but I recognise that Mr Williams has considerable experience in mathematical modelling of flood events, while Mr Cotterill's curriculum vitae does not identify any special expertise in modelling. Given the importance of the modelling results in this matter it was unfortunate that the Council did not have an in-house modeller, or an outside expert, appear. Mr Williams' responses to Ms Irish were at times unnecessarily combative (and on a few occasions close to being flippant) and both witnesses were sometimes obtuse in their approach.

Following the hearing

After the hearing a Hunter River flood event occurred, affecting the Hinton area, including the subject site. This was one of a number of flood events in coastal NSW occurring around the same time, prompting a number of investigations and reports to the State government. Translation of the reports to new policies and procedures is still underway. However, I wrote to the parties seeking information on how the subject site, and in particular Swanreach Road had been affected by the event, and in light of the 2022 event whether there had been any changes to the position of the parties in relation to their desired outcome.
Mr Williams had made observations of the event as it occurred and the experts held a number of meetings and produced reports and recommendations, documents which were filed as exhibits: Document Filed Exhibit Joint Report of Daniel Williams and Bryn Cotterill responding to questions 1-7, 10-11, 13-14 and 15 of the parties' agreed set of questions prepared by the parties dated 25 March 2022 11 April 2022 Exhibit 7 Agreed responses prepared by the Applicant and Respondent to questions 8, 9 and 12 of the parties' agreed set of questions prepared by the parties dated 25 March 2022 11 April 2022 Exhibit 8 Respondent's Conditions of Consent 22 April 2022 Exhibit 9 Supplementary Joint Report of Daniel Williams and Bryn Cotterill in response to Acting 5 May 2022 Exhibit 10 Commissioner Adam's Short Minutes of Order dated 21 April 2022

(Reproduced from Schedule of Documents Tendered by the Council on 12 May 2022) Document Filed Exhibit First Amended FERP submitted with Applicant Closing Submissions dated 7 March 2022 8 March 2022 Exhibit L Applicant's Response to Council Conditions in Exhibit 7 submitted with Applicant's Closing Submissions dated 7 March 2022 8 March 2022 Exhibit M Letter from Civcon Earthscape dated 1 March 2022 submitted with Applicant's Closing Submissions dated 7 March 2022 8 March 2022 Exhibit N Letter from Garden Master dated 4 March 2022 submitted with Applicant's Closing Submissions dated 7 March 2022 8 March 2022 Exhibit O Letter from Solar Power Australia dated 3 March 2022 submitted with Applicant's 8 March 2022 Exhibit P Closing Submissions dated 7 March 2022 Architectural Plans Sheets 1 to 7 Revision P6 prepared by Advantage dated 30 March 2022 submitted with Applicant's Closing Submissions dated 7 March 2022 8 March 2022 Exhibit Q Survey Report prepared by Le Mottee Group certifying the top of the existing flood mount 14 April 2022 Exhibit R at RL 6.4 AHD dated 8 March 2022 Applicant's Bundle on-site sewer management system 14 April 2022 Exhibit S Letter from Noble Hill Advisory on ventilation dated 12 May 2022 16 May 2022 Exhibit T Updated FERP including Flood signage 16 May 2022 Exhibit U Applicant's response to Respondent's conditions filed on 22 April 2022 (Exhibit 9) 20 May 2022 Exhibit V

(Reproduced from Schedule of Documents Tendered by the Applicants on 20 May 2022)

The submissions

The Applicants' closing submissions were filed on 8 March 2022.
Mr Staunton summarised the facts of the case, drawing attention to the differences between the 2018 Flood Certificate (Ex J) and the 2022 Certificate produced by the Council on 14 February 2022 and served as part of its Supplementary Bundle (Ex 3 folio 19) the day before the hearing commenced. The 2022 Flood Certificate specified a different flood planning level than that in the 2018 Flood Certificate (6.8m AHD v 6.2m AHD). This change (the Purported Change) in the FPL in par 9, line 5 of the Applicant's closing submissions is inconsistent with the level in the 2018 Flood Certificate and the comments by the Council officer who assessed the DA (Ex 2 folio 17). It is also inconsistent with the level specified in Contention 1 in the SOFAC (Ex 1). Mr Staunton therefore considered that I should give no weight to the 2022 Flood Certificate.
The DA for the dwelling house was preceded by a development application for a mound (the Mound DA). The DA and the Assessment Report for the mound (Ex 3 folios 1-10) both contain several references that indicate the Applicants' intent to apply for a future DA for a dwelling house on the mound, and the Assessment Report recommended a condition that the mound should be at a height of 6.2m AHD, consistent with the FPL for a dwelling.
Mr Staunton argued in the section of his closing submissions headed 'The Contentions' that the SOFAC (Ex 1) "raised 3 contentions that all say same thing, being that the proposed development is not compatible with the flood hazard category of the land".
Mr Staunton discussed the repeal of cl 7.3 of PSLEP, and argued that cl 7.3 no longer had any application to the matter and rejected any attempt to invoke it. He noted that all the experts agreed that the top of the mound would be at the agreed flood planning level of 6.2m AHD, the first-floor level would be at 6.9m AHD and the floor level of the refuge will be at 9.55m AHD, above the agreed PMF of 8.9m AHD. All the relevant levels were above the 1% AEP level of 5.7m AHD.
Mr Staunton drew attention to what Mr Williams said in the Flood Engineers' Joint Report (Ex 4) at pars 17 and 18. "17 As stated in the NSW FDM, the NSW Flood Prone Land Policy, "flood prone land is a valuable resource that should not be sterilised". The primary objective of the policy is to "reduce the impact of flooding and flood liability", not to eliminate it. 18 There are three main principles to ensuring the compatibility of a proposed development with the flood hazard of the land, namely the management of risk to property, management of risk to life and the management of potential adverse flood impacts to neighbouring properties. The management of risk to property is satisfied through the siting of the proposed dwelling on the flood mound above the FPL. The potential for adverse impacts to neighbouring properties from the proposed dwelling is negligible. The potential flood impacts are associated with the flood mound, which were assessed and approved as part of a previous DA. The contention with the proposed dwelling is therefore solely the management of risk to life."
Mr Staunton argued that Mr Williams' evidence should be accepted - there were three clear risks that needed to be managed for the development to be compatible with the flood hazard, and management of that risk did not require the risks to be eliminated but that they be minimised. The submission has extended discussion of how risk would be minimised under the proposal.
Contention 2 raised by the Council questions the site suitability of the development proposed but Mr Staunton considered that the contention did not raise matters that had not already been raised in Contention 1.
Contention 3 was that the proposal was not in the public interest. Mr Staunton drew attention to Mrs Ward's affidavit which had stressed that people needed to occupy the site to carry out agricultural pursuits.
Annexure A to the Applicants' submission addressed matters which I had raised at the end of the hearing, and provides responses and details of changes that had been made to the FERP.
The Council filed its outline of submissions on 9 June 2022, and the Applicants filed closing submissions on 21 June 2022.
A large number of the Applicants' responses were to agree to paragraphs in the Council's submissions, which were statements of fact that had not been in dispute or were merely noted. However, there are a number of responses where there was continuing disagreement.
A number of the disagreements were driven by the changes to the flood certificate that had occurred very shortly before the commencement of the hearing, and to the repeal of cl 7.3 in PSLEP and, because the DA had been submitted prior to the repeal, cl 5.21 did not apply to the DA.
The Applicants pointed out: "… The Council contended the relevant flood levels in Exhibit 1. They have not sought or been granted to leave to amend them. The experts agree with the contended levels and the Court would give no weight to the flood certificate which Council gave to itself and did not provide until the day before the hearing commenced." (Applicants' closing submissions dated 21 June 2022 at par 21)
In the Discussion section, I will discuss the weight I give to the changes in the various levels that are included in the 2022 Flood Certificate. However, the new levels and the change in flood category were known to the parties and to the Court during the hearing.
The Council argued in par 27 of its outline of submissions dated 9 June 2022 that: "…The Court would be reluctant 'to be flexible in applying those provisions' which relate to risk to life and flood hazard (section 4.15(3)(b) of the Environmental Planning and Assessment Act 1979)."
The Applicants' response (on pp 4-5) of its final submission dated 21 June 2022 was: "There is no dispute that the DCP remains a mandatory relevant consideration but it is not a statutory document and it is subject to clause 4.15(3A) of the EP&A Act. There is nothing in the DCP or s4.15(3A) of the EP&A Act that says a consent authority should be reluctant in being flexible in applying DCP provisions. To the contrary, s4.15(3A) says the consent authority '-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards in dealing with that aspect of the development'. it should be noted that s4.15(3A) states at the end of the section that: 'In this subsection, standards include performance criteria'. This is important because ultimately the DCP permits the use of performance criteria in the form of performance measures to achieve the objective of the relevant DCP controls. Whilst the DCP specifies performance measures those specified measures are not exhaustive. Alternative solutions to achieve the objects of the standards and performance criteria are permitted and the consent authority is to be flexible and allow reasonable alternative solutions."
The issue, therefore, turns on whether the Applicants are, indeed advancing alternatives to what is in the PSDCP, and if they are, are they 'reasonable'. There is no definition in the PSDCP of what is 'reasonable' so that within the context of the PSDCP 'reasonable' needs to be interpreted in its commonly used form.
The site was at the time of the hearing categorised as High Hazard Floodway and the Council in its outline of submissions dated 9 June 2022, argued: "This 9.497 ha Site does have multiple hazard categories specified on the flood certificate (viz. B5.1 of the PSDCP, which provides that the proposed development must be located on the land with the lowest flood risk). The whole of the Site is designated as 'High Hazard Floodway'. The Applicants have not even chosen to locate the proposed dwelling house as far from the river levee system as possible." (footnotes omitted) (at par 35)
To which the Applicants responded: "Not Agreed. Exhibit J does not designate the site as high hazard floodway. It designates the site as high hazard flood storage. The flood certificate the Council issued to itself on 14 February 2022 is at odds with the flood levels that it contends in its own statement of facts and contentions. No satisfactory explanation for the change of hazard has been provided. The Applicant's have chosen to locate the dwelling house on the approved and constructed mound that is the highest part of the land which is above the flood planning level nominated in Exhibit J and the contentions. The Applicants specifically told Council in the Mound DA documentation that they proposed to use the mound for a future residential dwelling. The Council had regard to that intention by imposing a condition requiring the level to be raised to 6.2AHD. The Council found that the location of the mound was acceptable and did not ask for it to be relocated as far as possible from the river levee system." (Applicants' closing submissions dated 21 June 2022 at par 35)
The Council planners had raised this issue, at least obliquely, on a number of occasions, but they did not offer a definite proposal for a particular alternative location.

Hearsay evidence

The Applicants had both prepared affidavits that were admitted as exhibits - that of Mrs Ward as Ex F, and that of Mr Ward as Ex G.
The Council argued that I should give no weight to this evidence: "In determining the development application the Court would give no weight to the hearsay evidence of the Applicants about past floods, or unproved/irrelevant observations. The orderly and economic use and development of land is promoted by taking into consideration such of the matters in section 4.15(1) of the Environmental Planning and Assessment Act 1979 as are of relevance to the development the subject of the development application including the likely impacts of the proposed development, the suitability of the site for the proposed development, the current hazard categorisation of the land, modelled and mapped flood levels, and planning controls relating to flooding." (footnotes omitted) (Council's outline of submissions dated 9 June 2022 at par 52)
The Applicants' response was: "Not Agreed. There are no rules of evidence in Class 1 proceedings. The Council was provided with the affidavits and the deponents were available for cross-examination. The Council chose not to cross-examine the deponents. The evidence is relevant for the reasons set out in the Applicant's evidence in chief." (Applicants' closing submissions dated 21 June 2022 at par 52)
The Council had raised no objections, either to the affidavits as a whole, or to specific parts. The two deponents had been available for cross-examination, but for whatever reason they were not called to give evidence.
Some of the material in both affidavits relates to discussions that the Wards had had with the previous owner of the property, Mr Gordon Gibbs, whose family had held the property for 80 years before it was purchased by the Wards.
Mr Gibbs is now deceased, and so is not available to verify the Wards' memories of their conversations. However, none of the matters included in the affidavits were directly challenged by the Council. I have no reason to believe that the Applicants would have deliberately misrepresented Mr Gibbs and a number of aspects of what Mr Gibbs is said to have raised are probably verifiable from other sources.
The Wards purchased the property in 2018, since when they have grown lucerne and raised cattle on the land (Ex G par 4). Mr Ward reports that he had been told, by both Mr Gibbs, and his daughter, that "they dried out millet to make broom heads" (Ex G par 6) - this local industry was referred to in a 1911 real estate advertisement, announcing the sale of agricultural land near Hinton (page 2 of the figures attached to Mrs Ward's affidavit (Ex F)). Figure 5 Copy of plan advertising the 1911 auction of the site and adjoining lands. The site is Lot 5 on that plan. (Source: Ex F)
Both the Wards drew attention to the existence of the barn/machinery shed, situated on the eastern part of the land, and Mrs Ward's affidavit includes a number of images of this machinery shed, which the Wards suggest maybe almost 100 years old.
Reference is also made to other similar sheds, probably of similar vintage on other properties in the neighbourhood. Reference was also made to a number of recent development approvals in the vicinity; these were referred to by Mr Jones, the Applicants' planner, in Ex 5 par 4.1.
The Council said I should discount Mr Jones' table of recent approvals "because all were assessed under a previous DCP, and prior to recent flood studies, with the exception of the Applicants' flood mound approved for an innominate use" (at par 53), to which the Applicants' response was: "Not Agreed. The other approvals relate to developments in very similar circumstances. They were granted during the currency of the current Flood Plain Manual. They demonstrate a merit based approach to assessment which accepted flood mitigation measures such as mounds as being an appropriate performance based measure to manage risk to life." (Applicants' closing submissions dated 21 June 2022 at par 53)
No suggestion was made by the Council that the approvals had been incorrectly made; they were assessed, according to their own facts, as they were at the time, when the DAs were approved, and the developments were in very similar circumstances to those of the present matter. Mr Cotterill, during the hearing, suggested that the recent approvals had been inappropriate (see [145] above), but I do not think that this was the official position of the Council.

Discussion

The application was for the construction of a single dwelling on a floodplain. Floodplains are inherently flood prone, and hence risk to both property and life is inevitable. The issue to be determined is whether the risk can be minimised sufficiently to merit approval, given that risk cannot be reduced to zero.
Floodplains, globally, have been long occupied by humans. While there would be reluctance, today, to develop new suburbs or larger settlements on floodplains, the fertility and generally favourable water supply mean that both natural ecological communities and agricultural land on floodplains are of high, sustainable productivity, both of primary production (photosynthesis) and secondary production involving domestic livestock. Even in the absence of agriculture, the diverse biota of floodplains was a valuable resource for hunters and gatherers. Floodplains have been a key element in enabling the human population to be maintained in many parts of the world for millennia.
In the Hunter Valley, agriculture has been an important part of the local economy for 200 years and will continue to be so. There are number of dwellings in the vicinity of the subject site that have been approved relatively recently. In the event of floods, it may be necessary for livestock to be moved to mounds or offsite altogether. Equally, it may be necessary for agricultural machinery, used for cropping to be moved to higher ground before floods arrives. Agricultural machinery has long been an expensive component of a farmer's outgoings, and modern machinery is possibly proportionately, more expensive now than was the case some decades ago.
Whether or not farm workers and the farmer live on site, in the event of flooding being predicted, farm workers will need to be on site to manage assets prior to the arrival of the flood, and they will, therefore, have to act it in such a way as to minimise risk to life.
There was no suggestion in any of the Council's material promoting the abandonment of agriculture. Indeed in the PSDCP, the objectives in B5.A Development on all flood prone land includes: "• To recognise flood prone land as a valuable social, economic and environmental resource that should not be sterilised by inappropriate development. • To ensure that the use and development of flood prone land includes risk consequences that are manageable. • To implement the principles of the NSW Government 'Floodplain Development Manual' (as updated from time to time), Construction of Buildings in Flood Hazard Areas (Australian Building Codes Board) and Council's Floodplain Risk Management Policy and flood hazard maps as identified in Figure BF."
If abandonment were to be proposed, then the vegetation would still need to be managed, and because of changes to the physical environment over the last 200 years what would have grown on the site at the time of European colonisation is not known with any certainty.
The Council could, if it had so wanted, have made development of dwelling houses unsuitable in any floodway.
The Council delayed consideration of the Applicants' DA while modifications were made to the PSDCP.
Figure BI to the PSDCP in the form it was in when the DA was assessed and determined by the Council, classified residential accommodation (other than a dwelling house) and residential subdivision as being "unsuitable land use on flood prone land."
For the subject land, the PSDCP in Figure BI provides "for dwelling house a performance based solution may be provided to demonstrate that the proposed land-use is suitable."
If the solution does demonstrate that a proposed set of works are suitable, then the proposal could be approved, subject to conditions.
Farm buildings are in category that is suitable for construction in floodways. However, there is no definition of farm building provided in the Glossary to the PSDCP, so that what is listed as "suitable" in BI may cover a very large range of structures.
The Council stressed throughout that the whole of the Applicants' land was characterised as High Hazard Floodway, and because of the risk consequent on this characterisation, the Court would be reluctant to apply flexibility in the interpretation of the DCP requirements.
I accept that the mapping of the Low and High Hazard Floodways employed a broadbrush approach, rather than recognising fine grained small areas within the broader context so that the Applicants' land is, in totality, mapped as High Hazard Floodway. However, the presence of mounds within the broader High Hazard area cannot be ignored, and the dwelling house that is proposed to be constructed will be on a mound, on a concrete pad that is not just resting on the surface of the mound, but is to be anchored by deep piles.
The circumstances in which the dwelling would be constructed are very different from those if the proposed dwelling were to be situated directly on the natural land surface. This seems to me to be a situation where flexibility in interpreting and applying the PSDCP is appropriate.
This does not imply that any proposal for construction of a dwelling on a mound would be automatically approved; detailed assessment would still be required. This situation is analogous to that discussed by McClellan CJ, in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP Properties). Even if a proposal is permitted, with consent, under the terms of the applicable LEP, the impact of the proposal has to be acceptable (BGP Properties at [118]).
The Applicants remain of the view that the 2022 Flood Certificate, issued by the Council to itself, was not applicable as the Council had not sought to amend the SOFAC (Ex 1), to change the required levels from those on the 2018 Flood Certificate to the amended levels that appeared for the first time in the 2022 Flood Certificate.
However, I do not consider that it is necessary for me to resolve the issue of whether the 2022 Flood Certificate applies to the DA, which was amended several times during the course of the matter and is for the construction of a dwelling, as the relevant designed levels of the proposed dwelling would satisfy the requirements of both versions of the flood certificate. "The current flood planning level (FPL) for the Site is 6.6 m AHD: see flood certificate dated 14 February 2022 and Ex 6 filed 17 February 2022 9:07 AM, p 12. However, Contention 1(c)(i) states that the FPL applicable to the Site is 6.2 m AHD - possibly sourced from the Flood Summary in Council's Referral Summary 9/4/16 [sic]. Council's Referral Summary is noted as having been completed by Michael Osborne "9 Apr 2019" and peer reviewed by "B. Cotterill 17/2/2021". The development application was lodged on 8 March 2019. The Court would infer that Council's Referral Summary was prepared "9 Apr 2019", not "9/4/16". The Court would adopt 6.6 m AHD as the FPL as at the date of determination of this development application." (foonotes omitted) (Council's outline of submissions dated 9 June 2022 at par 21)
The Council in the paragraph above notes that Contention 1(c)(i) states that the FPL applicable to the site is 6.2m AHD, but nevertheless considers that the Court would adopt 6.6m as the FPL, but does not provide reasons for not seeking to amend the SOFAC.
If the Court were considering a different application, one made after the introduction of the changes to the PSDCP, then clearly the higher levels now specified in the PSDCP would apply, and, in the event of the new application generating litigation, the SOFAC prepared by the Council would reflect the then current PSDCP.
However, in a situation where litigation commenced before the changes to the PSDCP had occurred and the changes to the PSDCP occurred shortly before the start of the hearing, it is at least arguable that, to engage the provisions of the amended PSDCP, the SOFAC should have been amended, but as the proposed development will be at levels, relative to AHD, higher than those required by the PSDCP applicable at the time of the hearing, and indeed higher than those required if the Council's 6.6m proposed FPL were adopted, then there is no practical benefit to be had from debating what the FPL should be.
The DA, as it stood at the end of the hearing included a flood refuge designed to be above the PMF. The Council was critical of the timing of the Applicants' offer of the refuge. "83… The fact is that no secondary mitigation measure supplementing evacuation in the form of a flood refuge was offered by the Applicants until the hearing." (Council's outline of submissions dated 9 June 2022 at par 83)
The Applicants had raised earlier the late appearance of the 2022 Flood Certificate so that the Council's approach has elements of the pot calling the kettle black.
The flood refuge occupies the attic space of the dwelling, and will have opening windows which will provide access to small boats in floods close to the PMF. There is no formal proposal for boats to be involved during evacuations, or while the refuge is occupied, and the FERP does not rely on any involvement of boats.
Amendments were made to the arrangements for provision of a generator, including as an outcome of a ventilation study (Ex T).
As initially proposed, access from within the house to the flood refuge would have been by a fold down staircase, but this was changed to a fixed staircase. The Council suggested that even a fixed staircase might cause difficulties for disabled or elderly people.
This is a valid point, but the likelihood of there being disabled or elderly occupants of the property requiring to retreat to the refuge may be small. If there were any such resident present when a flood anticipated to reach levels above the 1% AEP was predicted, then they should be required to evacuate immediately.
There is agreement between the parties that evacuation due to occurrence of minor or moderate flooding is likely to be required at least once in every four or five years.
Given our understanding of the relationship between La Niña and El Niño events in the eastern Pacific Ocean and rainfall patterns in eastern Australia, there can be a reasonable prediction, but not certainty, that flood events will be less likely in El Niño periods.
However, given the absence of long-term records, the occurrence of a PMF is currently impossible to predict.
For the Hunter River, the largest recorded event was the 1955 Maitland Flood, and it appears to be accepted that, as large as this event was, it was not at PMF level.
The PMF is unlikely to occur next year, given that we are likely to be in an El Niño event, but may occur at any time thereafter, possibly in a 1000 years, or even 100,000 years. Although the Council has adopted a predicted level for PMF, this is uncertain, and the level may be higher than that currently incorporated within the Council's plans.
If the current proposal is approved and for whatever reason, evacuation away from the property when flooding occurred was not possible so that retreat to the attic flood refuge occurred, then if the flood were the PMF but with a height above the level of the assumed PMF for planning purposes, then there would be serious concern for the well-being of those in the refuge. A very extreme flood level, possibly exceeding the PMF, is likely to be predicted several days in advance and the circumstances would be such that an evacuation order would be likely to occur, so that there would be no retreat to the refuge, rather an evacuation, not just to Hinton, but probably to a much more distant locality.
The Applicants in their closing submissions filed on 8 March 2022 said in par 22: "Agreed with the qualification that the PMF is the extreme flood. The extreme flood will be easy to forecast and significant warning time will be available so that the dwelling house will be evacuated. Even if it is not evacuated there is a PMF refuge available at RL9.550 which is above the PMF level of RL8.9AHD. the house will be structurally certified and the PMF flood level will be 650mm below the PMF level."

Swanreach Road

Access to the site is from Swanreach Road, a currently unmade road, which extends north past the property to a T-junction with Hinton Road. Figure 6 Location of site access low point on Swanreach Road (Source: Ex U Figure 1 on p 3)
Close to the junction there is a low point on the road (described by Ms Irish as "the weak link in the chain" (Tcpt, 17 February 2022, p 12(11)).
There was considerable debate between the parties as to whether the road could be used for evacuation if the low point were underwater.
The Council stressed the advice given by BoM: "Never drive, ride, or walk-through flood water, flood water can be deceptive and dangerous." (Council's outline of submissions par 56). (Similar advice is given by the SES).
If warning of impending flooding is given, then every effort should be made to evacuate in advance of flooding occurring. In the event of local flash flooding, which can be very local in occurrence and difficult to predict, Mr Williams' evidence was that even if a flash flood occurred and covered the road, it would dissipate relatively quickly (a matter of hours) provided discharge to the river were possible. A local flash flood is unlikely to reach 1% AEP, so that if there were occupants in the dwelling, they could sit out the flooding of the road for the few hours during which driving on Swanreach Road were not possible. However, the concern rises from a flood from the river, which could result in access being cut off for a matter of days.
In the early stages of a rising river flood it would, according to Mr Williams, still be possible to use the road by vehicles, or on foot, while the water of the road was less than 25cm deep.
The Council's draft 'without prejudice' conditions of consent would require the Applicants to, under draft Condition 2.0(9), make an application under s 138 of the Roads Act 1993 to upgrade Swanreach Road. The Council is the relevant roads authority under the Roads Act, so that an application to the Council would, in order to satisfy the draft condition, be required to provide "details of the Swanreach Road upgrade for the site frontage through to the intersection of Hinton Road at a minimum finished level of 2.5 m AHD or as otherwise agreed by the Roads Authority".
The Council in its proposed Condition 2.0(9) requires the design and location of proposed flood depth indicators (on Swanreach Road) to be provided. Mr Cotterill in his discussions with Mr Williams had expressed concerns that during flooding the road surface might become unstable and erode, so that flood depth indicators might be misleading. However, there was no evidence provided that the flood events during March 2022 had resulted in any erosion of the road surface.
The Applicants were opposed to the Council's condition requiring raising of the Swanreach Road to 2.5m AHD (the wording of the Council's draft condition does not specifically identify sealing, although that had been suggested by Mr Cotterill). "46. There has been no evidence from the Council that Swanreach Road is unstable in flood conditions in its present form. To the contrary the evidence of Mr Williams is that it was easily traversable. It is also a considerable burden on the Applicant who is simply seeking development consent for a dwelling house to require the raising and sealing of Swanreach Road that has existed in that state for a significant period of time. Swanreach Road services a number of dwellings and it is unreasonable to require the Applicant to fund all of the works in those circumstances. That said, the Applicant is agreeable to funding the installation of the flood depth indicators as they will remove uncertainty as to the depth of the water over Swanreach Road and will indicate when it is safe to traverse the road or whether a person should return and shelter in the dwelling house. This will benefit all residents or persons using Swanreach Road. The flood depth indicators have been included in the latest FERP (Exhibit U). The Applicant has amended the Council's proposed Part 2 condition 9 in its response to the Council's conditions (Exhibit V). 47. Mr Williams recommended updating the FERP (Exhibit 7 question 14) by making reference to the Green Rock Gauge data as a further reference point for flood levels and by including reference to the BOM twitter feed. These matters have been included in the latest FERP (Exhibit U) which the Applicant now relies upon and which replaces the previous FERPs in Exhibits H & L. … 54(d) Part 2 condition 9 and Part 5 condition 10 These are the conditions recommended by Mr Cotterill in the joint report for the installation of flood depth indicators and the raising and sealing of Swanreach Road. The Applicant accepts the requirement for the installation of the flood depth indicators but does not accept the other road works for the reasons set out earlier in these Addendum Submissions. The Applicant has amended these conditions accordingly in its reply (Exhibit V). Exhibit V supersedes Exhibit M." (Applicants' addendum closing submissions filed 20 May 2022 at pars 46-47 and 54(d))
Swanreach Road does not only service the Applicants' land, but also that of a number of other properties, as well as being a public road which is open for access by the wider public. I agree with the Applicants that it would be a burden for them to carry all the cost of implementing Mr Cotterill's proposed upgrade. (I note also that the Council's proposed version of Condition 2.0(9) also requires plans to be prepared for a number of aspects of road design and construction, including street lighting. The wording of the proposed condition may be that of a standard condition, routinely applied by the Council, but various of the features of the proposed condition are neither appropriate nor relevant in the circumstances of Swanreach Road).

On-site sewage management system (OSMS)

The DA does not seek approval for any wastewater/sewage treatment management system. In circumstances where these are required for a development to function, a separate s68 application needs to be made to the Council under the Local Government Act 1993. It would be meaningless to grant an approval to the DA, if it subsequently proved impossible for a separate s68 application to be granted. I inquired of the Council whether a s68 application was likely to be granted. The outcome was usefully summarised in the Applicants' addendum closing submissions filed 20 May 2022: "48. The Applicant provided a draft s68 application to Council for the installation of an on-site sewerage management system. 49. The documents provided by the Applicant to the Council are included in Exhibit S. 50. Mr Cotterill has confirmed on behalf of the Council (Exhibit 10 para 12) that based on a review of the material contained in Exhibit S that the Port Stephens Environmental Health Team have agreed that an on-site sewerage management facility is feasible on the site under present and future flood scenarios but will be subject to a formal s68 application prior to its approval and operation. 51. Exhibit S and the evidence of Mr Cotterill above renders Exhibits N & O redundant. 52. Having regard to the above evidence the Court can be satisfied that an on-site sewerage management system is feasible and the formal application will go through the s68 approval process if development consent is granted to the development application the subject of these proceedings." (at pars 48-52)
I am satisfied that, in the event of a granting of development consent, the OSMS, proposed by the Applicants, is feasible and formal application for a s68 approval would be made.

Addressing the requirements of the PSDCP

Part B5 of the PSDCP applies to all development on flood prone land, and there is no disagreement that the whole of the subject site is correctly classified as flood prone.
B5.A lists the objectives for all development on flood prone land. The fifth dot point of the objectives recognises that "flood prone land is a valuable social, economic and environmental resource that should not be sterilised by inappropriate development".
The Council argued that the proposed development was inappropriate - but for reasons other than that it would sterilise the land from other development.
The proposed dwelling house is to be situated on the small proportion of the subject land east of Swanreach Road, on which the large shed is already situated. The land west of the road is the portion of the site where agricultural use occurs, and the dwelling house will not affect the use of the western portion.
The Council has suggested that there may be more appropriate locations for the dwelling house to be constructed, but does not clearly specify where a more appropriate location would be, but there is an implication that consideration could be given to a new dwelling on the western portion of the subject site, which, while having the advantages of access to Hinton Road, would involve clearing an area of land currently used for agricultural purposes. While a dwelling in the western portion would not sterilise the whole of the portion, it would reduce the area of land utilised for agriculture. There was no evidence from either party (other than the affidavits of Mr and Mrs Ward) which went into any detail about the economics of farming the subject site, but loss of area might reduce the livestock carrying capacity, which in turn might be expected to have some economic consequences.
The sixth objective in B5.A is "to ensure that the use and development of flood prone land includes risk consequences that are manageable". The Applicants, through the provision of the flood refuge in the attic, and the production of the FERP, argue that they are managing risk consequences, but the Council's position is that the consequences are still not acceptable.
B5.14 provides seven criteria that must be met by any on-site flood refuge that is proposed. Although the Council argued that these criteria were not met in total and this warranted refusal of the application (see the Council's planning expert's (Mr Mitchell's) discussion in the joint expert report (Ex 6 and the Council's outline of submissions in pars 40, 41 and 58). Despite the position taken by Mr Mitchell in the joint report (Ex 6), when he was cross-examined by Mr Staunton, he conceded that the amended plans for which consent was sought met the six dot points in B5.14 (Tcpt, 17 February 2022, pp 79(47)-80(3); Mr Staunton in the Applicants' closing submissions dated 21 June 2022, pars 40 and 58).
Ms Irish did not raise any objections to the cross-examination outcome, and I accept that B5.14 is satisfied.
The attic flood refuge meets the requirements of B5.14. This is not to say that for occupants of the refuge during a major flood event life would be a bed of roses: conditions would be far from that, but there is nothing in the PSDCP that would make the flood refuge unacceptable.
The PSDCP does not categorise the proposed development as unsuitable - the option to so categorise the development was open to Council when it revised the PSDCP, but it did not take this course. Rather, in Figure Bl of the PSDCP identified that performance based solutions may be provided by an applicant that demonstrate that "the proposed land use is suitable", and in the PSDCP provides in three sections, B5.18, B5.19 and B5.20, details of what performance based solutions are required to address.
There is agreement between the parties that B5.19 - Risk to Property is not an issue, but the parties differ as to whether B5.18 - Risk to Life, and B5.20 - Flood Hazard Capacity are satisfied.
Human safety is paramount, so that B.5.18 (Risk to Life) is crucial to deciding whether the DA can be granted development consent.
Not surprisingly both parties devoted a considerable part of their submissions to discussion of B5.18.
B5.18 and B5.20 are within B5.D for which the objectives are: "B5.D Application of performance based solutions Objectives Performance based solutions that meet the objectives listed below apply to: • Proposed development identified as suitable on flood prone land in Figure BI that cannot meet the relevant development controls in this Part; or • Proposed development that is identified as possibly suitable on flood prone land in Figure BL, subject to performance based solutions."
The two top points under the objectives are separated by "or" - they are alternatives.
In the circumstances of this matter, it is the second alternative, which is applicable - will the performance based solutions proposed by the applicants makes the proposal "suitable" in an operational sense?
B5.18 provides that: Performance based solutions Risk to life The proposed land use is consistent with Figure BI, which shows suitable land uses by flood hazard category (as identified on a flood certificate) and the proposed development incorporates adequate measures to manage risk to human life from flooding, including: • Evacuation access from an area affected by flooding to an area free of risk from flooding, taking into account any potential access restrictions; B5.18 • Warning times and procedures to make people aware of the need to evacuate; • Consideration of the current and potential future occupants; and • Consistency with the most recent Council adopted flood study or floodplain risk management study that has been undertaken for the site.

The chapeau to B5.18 has two limbs joined by the conjunctive "and". The dot points following the second limb are proceeded by 'including' so are not an exhaustive list of possible measures, which could be proposed by an applicant, but the four dot points must be applied to the consideration.
B5.18 does not include the words "performance based solutions", but they may be implied by the words "adequate measures to manage risk to human life from flooding". The wording is "manage risk", not "eliminate risk" which would be impossible; the best outcome of "manage risk" would be to "minimise risk".
The Council in its submissions in pars 48 and 62 argues that the proposed development must be consistent with Figure BI and must also "incorporate adequate measures to manage risk to human life from flooding".
Mr Staunton (in closing submissions at par 48) argues that the objectives of B5.D are mutually exclusive - "It is clear that the first objective applies to land uses marked as 'suitable subject to controls' and the second objective applies to land uses marked 'PB performance-based solution' may be provided to demonstrate that the proposed land-use is suitable".
In relation to B5.18 Mr Staunton's submission is: "The Council makes a submission at 48 and 62 of its submissions that the proposed development has to be both "consistent with Figure BI" and must also "incorporate adequate measures to manage risk to human life from flooding". It is agreed that the two limbs are conjunctive but it is not agreed that they are not both met. The Council's construction of the first limb of B5.18 is simply not correct. If one was to apply this construction then the second objective would have no work to do. The performance measures specified in B5.18 set out ways in which the objectives can be met. On the Council's construction a development that is plainly contemplated by the second objective can never meet the performance based solution because it is not consistent with Figure BI (sic). … Even if the Council's construction is correct, which is not agreed, then the clause does not limit consideration of whether the objective is achieved by the matters set out in the performance based solutions stated in B5.18 because of the operation of s 4.15(3A) of the EP&A Act which allows flexibility where it can be demonstrated that the objectives are achieved by reasonable alternatives. In the circumstances of this case, the proposed development meets all of the performance based solutions specified in the four dot points to B5.18 and includes additional performance based solutions which demonstrate that the proposed land use is suitable with the flood hazard category." (Applicants' closing submissions dated 21 June 2022 pp 8-9)
B5.18 is unfortunately drafted, but the Council's interpretation would, if strictly applied, mean that performance based solutions could never be considered if Figure BI is read so that no proposal which is not categorised as "satisfactory" could proceed. This would mean that the intent of providing for performance based solutions is subverted. This is not to say that any proposals for which performance based solutions are suggested would be automatically approved. The solutions proposed would need careful analysis, but to use the option of providing performance based solutions as an automatic avenue to refusal is clearly inappropriate. Accordingly, I support the Applicants' submission on this point.
In relation to the third dot point of B5.18 the Council submitted: "The current and potential future occupants of the propose 4 bedroom house are not limited to Mr and Mrs Ward. The potential future occupants may not be owners, or people who read positive covenants on registered title, or people who read flood emergency response plans, or people who have apps on their phones in relation to notifications. Mr Williams' accepts that once approved as a dwelling house it is feasible that it could be rented or used as an Airbnb." (footnotes omitted) (Council's outline of submissions dated 9 June 2022 par 60)
To which the Applicants responded: "Not Agreed. This has been dealt with by the amendments to the FERP that require the FERP to be affixed to the back of the door and to other locations within the dwelling house. This means the FERP and its procedures will be available on site to any person who occupies the property." (Applicants' closing submissions dated 21 June 2022 par 60)
The Applicants' response does not address the nub of the Council's argument. If development consent is granted, it will apply to the property rather than to particular individuals. Mr and Mrs Ward will be responsible for constructing the dwelling, but they will not be the occupants forever. I consider that there are two issues, which can be addressed by conditions, which I will discuss later, relating to the number of persons and their identity who can be present in the property.
B5.20 of the PSDCP is the second applicable clause in the DCP, dealing with performance based solutions, although the term does not appear in the text, but would be encompassed by the phrase "include mitigation measures or offsets to reduce the flood risk". Flood hazard computability The proposed development must be compatible with the flood hazard category of the land (as identified on a flood certificate) or include mitigation measures or offsets to reduce the flood risk. In determining compatibility, Council will consider: • Whether there is other land on the site with lower flood risks where the development could be located; B5.20 • Depth of flood inundation on the site and the adjacent land; • Flow velocity on the site as well as upstream and downstream from the site; • Suitability of design so that the development does not become isolated by high hazard floodwaters; and • Consistency with the most recent, Council adopted flood study or floodplain risk management study that has been undertaken for the site.

The flood hazard category of the land is, according to the 2022 Flood Certificate, High Hazard Floodway. The Council submits: "Contention 1(g) (whether the Site is identified as being High Hazard Floodway) is dealt with at paragraphs 31-32 above. Mr Williams accepts that "It is the high hazard of floodwaters isolating the proposed dwelling that provide a requirement to manage the risk to life from flooding". All of the experts agree that the Site and path of evacuation for approximately 1km is mapped as High Hazard Floodway. The Court would accept that the Site is identified as being High Hazard Floodway in the Port Stephens Council Flood Mapping, and that it conveys floodwaters in close proximity to the Hunter River levee, and would reject Mr Williams' flood mound argument." (footnotes omitted) (Council's outline of submissions dated 9 June 2022 par 63)
To which the Applicants' response was: "Not Agreed. The Court would have real concerns about Council's classification of the site as a floodway. An explanation has not been provided and the Council issued a flood certificate to itself two days before the commencement of the hearing which it provided to the Applicant the day before the hearing. There is no satisfactory explanation as to why the classification was changed when there was no new flood study provided. The Council approved the Mount with the express purpose of accommodating a future dwelling. The Council could have refused the Mound DA or conditioned it so that it could not be used for a future dwelling. The Council did neither. The reason why the Mound was approved and conditioned to be a minimum of 6.2m AHD was to ensure that any future dwelling house would be above the FPL." (Applicants' closing submissions dated 21 June 2022 par 63)
The categorisation of the subject site changed from flood storage to floodway between the 2018 Flood Certificate and 2022 Flood Certificate but the basis for this change was never properly revealed, despite questioning. They had been no change to the topography of the site, so the hydrology is unlikely to have changed. Accepting the new categorisation does not mean that there has been a change to the flooding experienced; the environment is the same as it was prior to the issuing of the 2022 Flood Certificate.
B5.20 has the heading 'Flood hazard compatibility'. The experts disagreed as to whether the proposed development was compatible with the flood hazard: "There is disagreement as to whether the proposed development is compatible with the flood hazard of the land for the purposes of clause B5.20 (Mr Williams at Ex 4, p 6, [8] cf. Mr Cotterill at pp 8-9, [29]-[30] and Mr Jones at Ex 5, [1.23] cf. Mr Mitchell at [1.26]. The town planning experts agree that B5.20 requires the proposed development to be compatible with the flood hazard category of the Site." (footnotes omitted) (Council's outline of submissions dated 9 June 2022 at par 64)
The Applicants' agreed that there is disagreement, but maintained that the design of the dwelling, and the performance based solutions proposed, will ensure that the proposed dwelling house would be compatible with the hazard categorisation (Applicants' closing submissions dated 21 June 2022 at par 64.).
The Council maintained its position in relation to B5.20 in par 70 of its submissions: "For the reasons at paragraphs 35, 50-51 and 66-69 above the Court would not be satisfied that the proposed development is compatible with the flood hazard of the land for the purposes of clause B5.20, and would not be satisfied that the proposed development includes "mitigation measures or offsets which reduce the flood risk". The flood risk will not change. The change is to introduce a new dwelling house with an attic on a flood mound in a High Hazard Floodway. Consideration of the suitability of the site for the development for the purposes of section 4.15(1)(c) is not confined to the matters in B5.20. The Court would not be satisfied as to the suitability of the site for the development." (footnotes omitted) (Council's outline of submissions dated 9 June 2022 par 70)
If the flood risk is that consequent on the flood hazard categorisation, then the flood risk will not change, unless there is a modification to the landscape and hydrology.
However, I think that "mitigation measures or offsets" could be designed which reduce the consequences of the flood risk, even if they do not change the flood risk per se. The wording of B5.20 generates uncertainty as to its intentions.
The Respondent's submission also raises the suitability of the site for the proposed development, which is a matter the consent authority is required to consider under s 4.15(1)(c) of the EPA Act, and suggests suitability for purposes of the EPA Act extends beyond the matters that raised by B5.20. Other aspects of suitability of developing a dwelling in the eastern part of the property include the benefits of not reducing the area of agricultural land in the western portion of the subject site by clearing part of it for construction of a dwelling, but the Council in submissions at par 70, having stated that consideration is not confined to B5.20, does not indicate which other matters could or should have been considered.

EPA Act s 4.15

A number of provisions of the evaluation requirements of the EPA Act have been discussed previously in this judgment. However, there are two which were given very little attention by either party. 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 - … (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…
Section 4.15(1)(b) has very wide scope, but requires consideration of the likely impacts of a number of aspects of the site and the proposal. They include impacts on the natural and built environment. There was virtually no consideration of the impacts on either natural or built environments. However, given that the matter involves an area which is being used for agricultural purposes, the impacts on the natural environment are probably small, and given that there is not a collection of inhabited buildings on the site or in its near vicinity there is no built environment to consider. The virtual absence of any discussion of the 'natural' components of the environment, which could include birds, amphibia, reptiles and small mammals is disappointing, although given the restricted area of direct impacts of the dwelling and the highly modified landscape the impacts of the proposal are unlikely to be high. However, the social and economic impacts may be wider. Other than in the discussion of agricultural use in the area included within the two affidavits from Mr and Mrs Ward, the economic benefits of the agricultural use of the land were not discussed, and no indication of the annual value of agricultural production was provided. Given the intent of maintaining use of the floodplain, there are social values in maintaining a working population in the area. The Council, in very general terms, anticipated negative impacts, in both social, and economic terms, including the costs of providing services by a number of agencies during the flood events, but these were not analysed in any detail.
The subsection requires consideration and does not impose specific mandatory requirements. In the circumstances the very generalised information available is such that it does not give rise to concerns.
Subsection 4.15(1)(e) requires me to consider the public interest. Public interest encompasses a range of matters, many of which would also arise in s 4.15(1)(b).
The Council pointed out that the application was for a new dwelling, not a rebuild or refurbishment of an existing building, and would thus create new, and in Council's view, unacceptable circumstances. However, dwellings are permitted subject to conditions, in the RU1 zone. The Council had not amended the PSDCP so as to prohibit construction of a new dwelling by categorising any proposal for a new dwelling as unsuitable but had provided for performance based solutions, so that the fact that it is a new dwelling, where no other dwelling had previously existed, does not make the application not be in the public interest - so assessment must be undertaken on the merits of the proposal, and include consideration of the performance based solutions.

Warnings

The FERP provides that the first response to a warning of impending flooding should be evacuation. It is the Applicants' position that there would be sufficient time for evacuation to occur before flooding commenced. This remained a matter of disagreement between the parties.
The Council's view was that, although there were a variety of means by which warnings could be conveyed, there was no guarantee that they would be received; they could be issued during the night so that the effective warning period would be lessened, messages could be misinterpreted, and not everyone would receive emails and text messages.
The Applicants' view was that these days most people were likely to receive emails and text messages, and that contact between neighbours would also occur.
I agree that no warning system is perfect, and human nature is such that messaging systems may not be switched on by some individuals, but this is likely to be the case for many types of emergency, not just floods. In a situation where permanent residents are aware that they live in a flood prone environment, it would seem to me that they would be particularly observant and responsive to conditions, and would be familiar with evacuation procedures, having experienced them on a regular basis (in the order of at least one every four or five years).
One aspect of evacuation, which was alluded to several times, but not expanded upon, was the possible need to move livestock. The Wards intend to continue to run cattle. No information was provided as to how many head of cattle would be involved, and how long it would take to move them to a flood free site. If movement is on trucks, then it might be relevant to know how many other landholders might be moving cattle on Swanreach Road.
Although it would have been helpful to have information on these topics, movement of livestock in response to flood warnings has occurred in the past, and those who farm the land will be experienced in moving their beasts. Nevertheless, the process will not be instantaneous, but if there is delay, retreat to the flood refuge would an available option if persons were still on the property when road access were not available
After the end of the hearing, there were several weather events along the east coast of Australia involving intense rainfall. I wrote to the parties, posing a series of questions about what it occurred in the vicinity of the site during these events.
Mr Williams and Mr Cotterill prepared a joint expert report filed on 11 April 2022 (this became Ex 7). The report had a number of attachments: Attachment "A" is a table of flood levels, recorded at 15-minute intervals, from twelve gauges in the lower Hunter from 0.00 on 7 March 2020 to 09.15 on 13 March 2022. Attachment "B" contains flood warnings issued by the BoM commencing with flood warning number 27, issued at 09.54 on 8 March 2022 to flood warning number 36 issued 12.05 on 13 March 2022. Attachment " C" comprises pages 27-33 of the Maitland City Flood Emergency Plan dated June 2013.
Included within the body of the report Figure 7 provides examples of flood warnings issued by the BoM on 7 March 2022, and Figure 8, a further warning issued on 8 March 2022, Figure 10 is of a moderate flood warning Maitland issued by the NSW SES on 10 March 2022, and Figure 11 is a notice of road closures issued by the SES on 8 March 2022, the roads identified include Swanreach Road and Hinton Road at Osterley. Figure 12 is a flood watch notice issued by the SES on 28 March 2022 for a subsequent flood event affecting the area.
These attachments and the text material in the report document the types of warnings on floods in the area that were available.
The notices were accessed by Mr Williams and Mr Cotterill, but there is no information as to how many residents within the area may have accessed the BoM and SES sites.
As was the case in the original expert reports, Mr Cotterill deferred to Mr Williams for provision of data and modelling: "1. What water levels were experienced (a) at Swanreach Road in the vicinity of the site and (b) at the site, and was there any isolation of Hinton and/or Osterley during/as a result of Recent Events? The experts agree that the nearest gauge at Green Rocks, down river of the subject site, indicated a peak of approximately 4.1m. The experts agree that both Hinton and the subject site, within Osterley, were isolated during the March 2022 flooding. … BC - Council does not hold any site specific flood height data but I do not object to Mr Williams estimate. Hinton was isolated in the early morning of March 10th (NSW SES - Port Stephens Unit post dated March 10 at Figure 9.) … 3. Attach any records of the water levels attained, and the rate of increase in water levels. Provide copies and the source of those records, and copies and the source of any calculations of rate of increase in water levels. BC - Council does not have access to site specific flood levels beyond the previously mentioned river gauge/s. The site's immediate catchment did not experience intense rainfall to the extent that flash flooding occurred. Port Stephens Council closed Hinton and Swanreach Roads (refer figure 11) on the afternoon of March 8th. I maintain the opinion that the road, while inundated as shown in figures 3 to 6, should not be referred to, or considered, "trafficable". (Ex 7 p 2)
I had asked the parties whether there had been any evacuation orders issued during the March floods: "6. Whether and when were any evacuation orders affecting the site issued during/as a result of Recent Events? DW - I am not aware of any Evacuation Orders being issued for the local area. This is typically only done when under threat of Major Flooding. BC - based on correspondence between Port Stephens Council Officers and the local SES I do not believe evacuation orders have ever been issued for the Hinton area. The relevant Act states that a Commissioner may, if satisfied that it is necessary or convenient. As the subject site has experienced more severe flooding in the past it would seem that it mustn't have ever been considered convenient for such an order to be issued or monitored. 7. Provide copies and the sources of any flood warning or evacuation order issued during/as a result of Recent Events. DW - Refer Attachment B for a compilation of captured Flood Warnings BC - Figures 9 through 12 provide additional records of posts relating to flooding including the more recent flood watch alert (March 28) several weeks after the instance of isolation. 8. Are evacuation warnings and orders issued by the SES? 9. Once an evacuation order has been issued when can people return to dwellings ? 10. Under what circumstances would an evacuation order be issued and how far in advance of the flood event would this occur? DW - my understanding is that an Evacuation Order would typically be issued when there is a threat of the Major Flood level being reached, as this is when the inundation of buildings begins, or if there is a significant threat of residents being impacted by isolation. In rural communities that are used to dealing with flood isolation, this is most likely to be if it is believed that the essential energy and utility services are to be affected. The decision to issue an Evacuation Order is that of the SES Local Incident Controller, or the Hunter Regional Controller if a major operation is required. Refer to Attachment C for the Evacuation section of the SES Local Flood Plan. BC - The relevant Act states that a Commissioner may, if satisfied that it is necessary or convenient. As previously stated this has seemingly never occurred at the subject site which mustn't have been the focus of the SES as they resourced other more densely populated areas. 11. Have evacuation orders ever been issued in the vicinity of the subject site? Under what scenarios might an evacuation order be issued, and how would observance be monitored? DW - I do not know if Evacuation Orders have been issued for previous flood events, but the SES Local Flood Plan has only been in place in its current form since 2013. The BoM NSW Twitter feed is a good source for this information, as I observed during the event that it includes both the issuing of BoM Flood Warnings and of SES Evacuation Warnings and Evacuation Orders. BC - I do not believe evacuation orders have ever been issued for the Hinton area, based on correspondence between Port Stephens Council Officers and the local SES, and it is my understanding that observance could only be monitored only if resources allowed for attendance by SES at individual dwellings." (Ex 7 pp 3-4)
I also asked the parties whether the events of March suggested that changes to existing flood plans were required. "14. Do the experts recommend any changes to conditions and/or plans having regard to Recent Events ? BC -Flood depth indicators at road low points as well as raising/sealing of Swanreach road from the development site to Hinton Road would improve chances of a successful selfevacuation through floodwaters DW - The recent flood event was an excellent opportunity to evaluate the effectiveness of the FERP for the Site. In this regard, a Moderate Flood Warning was issued by the BoM for Belmore Bridge at Maitland early in the morning of 8/03/22 at the latest. I haven't been able to view the specifics of the late afternoon Flood Warning issued 7/03/22, so cannot determine whether a Moderate Warning was issued for Maitland at that point in time. However, the Site was still readily accessible from Maitland, Morpeth and Hinton into the afternoon of 9/03/22, which is over 30-hours after the first confirmed Moderate Flood Warning. Even if warnings were somehow missed, there was visible evidence at the Site of the levee having been overtopped that could have been responded to in good time also. The specifics of the recent event (slow rise of flood level and peak between a Moderate Flood and 20% AEP design flood) make it close to a worst case in terms of forecast and warning. It is much easier for the BoM and SES to take decisive action when there is no doubt as to the likelihood of a Major Flood level being reached. Following guidance in the FERP would have enabled timely and safe evacuation from the Site (as would local visual clues without the benefit of the FERP). However, there are a couple of changes that I would make to the FERP following review of this event. First is to refer to the Green Rocks gauge data, as this provides an accurate indication as to the flood conditions directly impacting the Site. It doesn't have flood warnings issued for it, which is why it was not included, but it does provide a useful option for observing local Hunter River water level conditions if the channel is not visible at the Site due to the time of day and/or environmental factors. The second change would be to refer to the BoM NSW Twitter feed, as this was much easier to follow and have access to the most relevant and up-to-date information than using the website." (Ex 7 pp 4-5)
The power of the SES to order evacuations or other actions are provided in ss 22 and 22A of the State Emergency Service Act 1989: 22 Power to evacuate or to take other steps concerning persons (1) The Commissioner may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency to which this Part applies, direct, or authorise an emergency officer to direct, a person to do any or all of the following - (a) to leave any particular premises and to move out of an emergency area or any part of an emergency area, (b) to take any children or adults present in any particular premises who are in the person's care and to move them outside the emergency area or any part of the emergency area, (c) not to enter the emergency area or any part of the emergency area. (2) If the person does not comply with the direction, an emergency officer may do all such things as are reasonably necessary to ensure compliance with it, using such force as is reasonably necessary in the circumstances. (3) The regulations may limit the circumstances, and regulate the manner, in which the powers conferred by this section may be exercised. (4) (Repealed) 22A Power to take other safety measures (1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following - (a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area, (b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area, (c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency. (2) For the purposes of the exercise of a function under subsection (1) (a), the Commissioner or a senior emergency officer authorised by the Commissioner may require the person who controls or supplies the substance concerned to immediately send some competent person to the scene for the purpose of shutting it off or disconnecting it in accordance with the reasonable directions of the Commissioner or senior emergency officer. (3) A person must comply with a requirement, or directions, under subsection (2). Maximum penalty - 50 penalty units. (4) A person who supplies a substance referred to in subsection (1) (a) or (b) is not liable for any damages because of any interruption of that supply under this section if the supply is shut off or disconnected in accordance with the directions of the Commissioner or senior emergency officer. (5) The regulations may limit the circumstances, and regulate the manner, in which the powers conferred by this section may be exercised.
It was argued by the parties' experts that these powers have not, to their knowledge, ever been applied to the subject area. This does not mean that they will never be applied, merely that to date they have been dormant. In the event that they were applied an evacuation order would override the FERP. If there were predictions of a major flood approaching or exceeding the height of the 1955 Maitland flood it is possible that an evacuation order would be issued well before flooding occurred on the subject site.
The joint report contains a number of images taken by Mr Williams, illustrating the flooding on Swanreach Road at different times: Figure 7 Swanreach Road at 22:52 8/03/22 (Source: Ex 7 Figure 3) Figure 8 Swanreach Road at 07:39 9/03/22 (Source: Ex 7 Figure 4) Figure 9 Swanreach Road at 15:00 9/03/22 (Source: Ex 7 Figure 5)
Although I recognise that Mr Williams has had considerable experience in the area, I am concerned about his view as to the trafficability of Swanreach Road (and other roads) during floods and share the concern implied by the Council: "Mr Williams first visited the site at 10:50 PM on 8 March 2022 not 10:50 AM. That is when he observed that Hinton Road was closed. Council closed Hinton and Swanreach Roads from the afternoon of 8 March until 15 March. While Mr Williams might be excused for carrying out observations as to whether Hinton Road was in his (cf. the road authority's) opinion, still trafficable; not so the driver of the vehicle which passed Mr Williams on Hinton Road travelling from Osterley on 9 March. See paragraph 59 above regarding Council's concerns about human complacency." (footnotes omitted) (Council's outline of submissions dated 9 June 2022 par 86)
Mr Williams indicated that he would not have driven where he did if he had a smaller car than his 4WD Pajero. Local residents may be aware of the limitations of smaller cars, someone with little experience (perhaps only visiting for sightseeing - a practice to be strongly discouraged, but perhaps difficult to prevent) might see any vehicle, such as a 4WD, or worse, a truck driving through floodwater and might assume that it is possible for all vehicles. The warning not to drive through floodwater in any circumstances should continue to be pressed.
The depth gauges proposed to be installed will be valuable for locals and for others experienced in driving through floodwater, but might not be understood by sightseers. However, unless there is complete closure of roads to all traffic, we can only appeal to commonsense, although knowing that this is a virtue not possessed by all.
The supplementary report filed on 5 May 2022 includes images of signage for road closure on Hinton Road in March 2022: Figure 10 Example of road closure signage deployed at either end of Hinton Road (Source: Ex 10 p 5 Figure 2) and floodwater closing the Hinton Road on 11 March 2022: Figure 11 March 11 4:44pm view of Hinton Road towards Swanreach Rd from Osterley where road closure signage was placed immediately below frame (Source: Ex 10 p 6 Figure 4)

Conclusions

The proposed dwelling is permissible with consent, and the Council did not seek to apply B5.19 of the PSDCP, applying to risk to buildings, in its consideration.
The Council's engineer accepted that the final building design was satisfactory, but there was no detailed analysis of the behaviour of the building in the event of a flood. Absent any reports and noting that the engineers were not cross-examined on the building and its likely safety in floods, I have no basis for questioning their conclusions and accept that there are no issues raised under B5.19.
The building is permissible with consent, subject to conditions imposed under the PSLEP and PSDCP. I am satisfied that the performance based conditions developed by the Applicants will, if applied, reduce the risk to human life; they are aimed at minimising risk, although whether the resulting risk is the minimum is difficult to determine given that there are few data or comparative studies to consider.
The PSLEP allows for approval of a dwelling house, subject to conditions, and the PSDCP allows for performance based conditions to be imposed. Provided the proposed conditions minimise risk, then, in my view, granting of development consent would be appropriate. Subject to some minor amendments to the draft proposed conditions, I am satisfied that development consent could be granted.
Development would not sterilise the economic and social values of agriculture on the site. The Council chose not to call Mr and Mrs Ward to question them on their affidavits about the values, both economic, and the less tangible, but still important, social values of continuing agricultural use of the property. The decision not to discuss the economic and social consequences (positive and negative) of the proposed development was one that was open to the Council.
The Council was concerned that adding a new dwelling to the area would increase the burden on emergency services and increased the risk to occupants. Given that the agricultural use of the site will continue then even if there are no residents, in the event of a flood occurring there will remain a need if there are cattle on the site for workers to be present to organise moving of the beasts to a safer area. The inclusion within the development of a flood refuge above the PMF provides a refuge if any workers are unable to evacuate before road access becomes unpassable. To that extent the proposal might lower the overall risk consequences of flooding.
If evacuation is achieved prior to flooding cutting the road access, the flood refuge will not be used. It is a last resort in the event that, for whatever reasons, evacuation had not been completed.
Given that the observance of conditions of consent is mandatory, I must assume that occupants are familiar with, and will observe, the requirements of the FERP. The FERP requires evacuation prior to flooding and for the prominent display of the FERP inside the dwelling. The emergency kit in the flood refuge is to be maintained, and items within it to be replaced if their use by date is reached.
The way the matter unfolded still contains elements of mystery - why was assessment of the application put on hold for two years to make changes to the PSDCP when if Council's underlying object was to prevent any new dwelling being built were modifications were not made to render development of a single dwelling unsatisfactory. Rather the Council opened up an avenue for development of performance based conditions, despite having changed the hazard categorisation of the land.
Given that the Council has not amended its PSDCP to prohibit the development of dwelling houses within a High Hazard Floodway but provides for the development of dwelling houses within floodways if performance based conditions can be applied, and that dwelling houses are permissible with consent and subject to conditions within the RU1 zone, I propose to grant development consent and uphold the appeal. Granting of development consent is subject to amendments to the proposed draft conditions and to the FERP.
It is well established that an applicant "always bears a persuasive burden of proof - the applicant must persuade the consent authority, whether it be the Council at first instance, or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed": Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 per Preston CJ at [2]. The Applicants have provided information and made submissions which satisfy me that the environmental impacts of the proposal can be satisfactorily addressed.

Conditions

In the Council's closing submissions, conditions were discussed in par 79: "After the hearing Council sought to rely on final draft conditions (Ex 9) to which the Applicants responded, initially in Ex M, and ultimately in Ex V. Council does not oppose the Applicants' approach in Ex V to deferred commencement condition A(1). Council's instructions are that the only dispute now remaining for determination by the Court is the Applicants' objection to draft condition 2.0(9) and 5.0(10). Council presses those conditions." (footnotes omitted)
The Council's draft conditions in Ex 9 were presented on a without prejudice basis. It remains the Council's position that consent should not be granted. As discussed above I have concluded that consent should be granted, subject to conditions. It is necessary therefore that I resolve the differences between the parties for those draft conditions that were not agreed, identify conditions for which the Court requires clarification, and identify additional matters which the Court requires the parties to address.
The Applicants' preferred conditions were presented in Ex V. I note that the Council accepts the changes suggested by the Applicants to the Deferred Commencement Condition (A)(1) which now reads: "(A)(1) Pursuant to Section 4.16 of the Environmental Planning and Assessment Act 1979, a deferred commencement consent is granted to DA 16-2019-134-1 subject to the following conditions of consent: 1. Details of the diesel generator for the proposed flood refuge shall be submitted." To remove any possibility of doubt, the recipient of the details of the diesel generator should be identified so the wording should be "…shall be submitted to Council".
The Council in par 79 of its closing submissions does not mention the Applicants' proposed amendment to the table of Condition 1.0(1) for the inclusion of mention of the letter from Noble Hill Advisory of 12 May 2022, which discussed ventilation requirements for the flood refuge in the attic. The issue is an important one, and the proposals made by Noble Hill Advisory are appropriate. The letter should be included in the table as supporting documentation forming part of the application.
Proposed Condition 1.0(4) relates to approval of the OSMS under the Local Government Act. I agree with the Council's version.
Proposed Condition 2.0(9) is for works on Swanreach Road. For the reasons discussed earlier in the judgment (at [233]), I support the Applicants' position that they should not be responsible for funding an upgrade of a considerable stretch of Swanreach Road, and, so consider that the wording of the condition should be that proposed by the Applicants.

Conditions requiring clarification

The Court requires that the parties amend the conditions of consent to clarify these points.

Condition 2.0(6)(b)

This refers to the "existing flood refuge and proposed development/ building flood refuge extension". What is meant by the existing flood refuge? Is it the existing approved flood mound?
The proposed development is for construction of a dwelling house which includes a flood refuge within the attic.

Condition 3.0(10)

An all-weather vehicle access is to be provided from the kerb and gutter to the building under construction. Access will be from Swanreach Road - is Swanreach Road kerbed and guttered?

Condition 5.0(9)

A positive covenant in favour of Council is to be registered requiring compliance with the FERP. The positive covenant is presumably under the Conveyancing Act 1919 - this detail is normally specified in conditions.

Changes to existing FERP

The proposed dwelling will have four bedrooms. It is unlikely that the dwelling would be at maximum capacity all the time, but there might be periods when all bedrooms are occupied.
If there were eight occupants of the dwelling house this would be more than the capacity of the flood refuge if it were necessary for the refuge to be used.
The FERP should clearly state that there is a limit to the number of people who can be accommodated in the refuge and contain a requirement that the number of occupants in the dwelling house be reduced to a maximum of five (5) immediately a flood warning is issued.
Concern was also expressed by the Council about the possible inaccessibility of the flood refuge to disabled persons who might not be able to use the stairs. The FERP should require immediate evacuation of disabled persons when a flood warning is issued.

A new condition of consent regarding the FERP

Mr Staunton, at par 77[1] of closing submissions dated 21 June 2022 stated "There are conditions of consent requiring the updating and implementation of the FERP."
The conditions of consent include specification of the matters to be addressed in the FERP, and require the FERP be implemented for the life of the project. However, there are no conditions that specify a mechanism for future amendment to the FERP should that become necessary.
Future changes in the incidents of floods, or changes to the SES's process of issuing evacuation orders, or changes in other government policies might generate a need to amend the FERP.
The current FERP was produced by the Applicants.
The Court requires the parties to provide a new condition of consent which: 1. specifies circumstances that trigger a need to revise the FERP; and 2. addresses whether amendments are to be prepared solely by the Applicants (or their successors in title) or require referral to Council.

Short-term rentals

The Council expressed concern that there is currently no restriction on renting some or all of the dwelling house on a short-term basis, and that it might become an Airbnb.
The Court requires that a condition be provided requiring that the dwelling house is not, at any time, to be used for short-term rentals.
The condition should not be specific to Airbnb as this is currently only one of a number of companies which handle bookings for short-term rentals, and the number of companies providing this service may increase in the future. In addition, individual owners of properties may handle their own short-term bookings. A definition of short-term rental should be included in the condition.

Directions

The Court orders: 1. Within 14 days of the date of these orders, the parties are to confer and if possible agree on the conditions of development consent which are to reflect this judgment, and file the agreed conditions. 2. If the parties are not able to agree on the conditions of consent, within 14 days of the date of these orders, each party is to file with the Court and serve on the other party the party's version of the conditions of consent, and provide to the Court a Word copy of each party's version of the conditions of consent. ……………………… P Adam Acting Commissioner of the Court Attachment 1 (341441, pdf)

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 August 2023

(2004) 138 LGERA 237

At a glance

Court

Decision date

Source

Judgment (39 paragraphs)

Parties

Cases Cited (7)