Zaki Property Pty Ltd v Wollongong City Council

Land and Environment Court (NSW)|2022-06-01

Introduction

This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA-2021/286 (DA) by Wollongong Local Planning Panel. The DA sought consent for a child care centre at 42 and 44-46 Hopetoun Street Woonona (site). The site is legally identified as Lot 1000 DP 1169057 and Lot 4 DP 1107071.

Site and setting

The site is irregular in shape with a total area of 4250.6m2. The larger part of the site (Lot 1000 DP 1169057 or 44-46 Hopetoun Street) is currently occupied by an existing medical centre building and an at-grade carpark. The medical centre building fronts onto Hopetoun Street. The carpark is to the rear and north-east and is accessed along an access handle which separates the medical centre from an existing dwelling house at 42 Hopetoun Street, which also forms part of the site. The portion of the site to be developed includes the access handle and existing rear at-grade carpark. The site falls away from Hopetoun Street from south to north. Much of the site is significantly impacted by flooding, the key consideration in this matter.
The site sits just to the east of the Princes Highway within the north-eastern environs of Woonona town centre. Along with the medical centre, a range of smaller scale businesses and institutional uses are located along the highway, with low density residential properties setback from the commercial strip. Three low density residential properties back onto the site along Hopetoun Street. An operating Scout Hall shares the site's western boundary. There is a community housing development abutting the site to the north.

The proposal

The proposal before the Court can be summarised as follows:

Provision of a 90 place child care centre and parking for 76 cars and associated demolition and site preparation works.
Child care centre building would have a gross floor area of 597.9m2, a maximum height of 12m and be built over three levels: 1. Undercroft carparking on Ground Level, to be used for the child care centre as well as the existing Medical Centre building, 2. Additional parking Level 1 3. Child Care Centre on Levels 1 and 2.
Indoor play areas would total 310.6m2. Outdoor play areas would total 657.1m2. There is no dispute that the allocated areas satisfy regulatory requirements.
Landscape screening areas are provided along each of the northern, eastern and southern property boundaries, among other identified areas. While certain particulars in regard to landscaping form part of the application before the Court, agreed conditions of consent (Condition 41) would require a further landscape plan to be provided and approved prior to the release of a construction certificate for the site.
Staffing would be 14 persons, including the centre manager.
Hours of operation would be 7am to 6pm Mondays to Fridays.

There are other important aspects of the proposal concerned with stormwater and, in particular, flood risk management. I will deal with these matters when I attend to the flood risk contention.

Wollongong Local Environmental Plan 2009 (WLEP)

The site falls within the B2 Local Centre zone under WLEP, which covers land on the eastern side of the Princes Highway in the site vicinity. The zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To allow for residential accommodation and other uses while maintaining active retail, business or other non-residential uses at the street level.
The proposal is permitted with consent in WLEP's R2 zone as a "centre-based child care facility". The site is otherwise surrounded by land zoned R2 Low Density Residential.
The applicable maximum building height control is 12m under cl 4.3. The applicable maximum floor space ratio control is 1.5:1 under cl 4.4. The proposal would sit comfortably within these controls.
There are a number of items of local heritage significance in the locality including three in the vicinity of the site: the former Police Station and Courthouse on the western side boundary and former Vista theatre on the opposite side of Hopetoun Street.
While there are flooding-related provisions at cl 5.21 as WLEP now stands, it is my finding that these provisions do not apply to the proposal (see [22] et seq).

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP)

On 1 March 2022 the Education SEPP was repealed. The replacement policy was included within State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport & Infrastructure SEPP). However, the savings provisions within Sch 9 of the Transport & Infrastructure SEPP make clear that the Education SEPP continues to apply to development applications, such as this, made but not finally determined, before 1 March 2022.
Clause 23 requires the consent authority to take into consideration the Child Care Planning Guideline (CCP Guideline).

Wollongong Development Control Plan 2009 (WDCP).

The provisions of WDCP which were of note in this matter included:

Chapter E13 - concerned with floodplain management
Chapter E14 - concerned with stormwater management
Chapter C5 - concerned with child care centres (although it is noted that cl 26 of the CCP Guideline provides that the guideline generally prevails over local Council development control plans, except in regard to building height, side and rear setbacks or car parking rates).
Chapter B4 - concerned with development in Business zones such as that applying to the site.

Setting for proceedings

The application has been amended several times, including immediately prior to, and during the course of, the hearing. These amendments have resolved most of the contentions identified by Council in its Amended Statement of Facts and Contentions filed on 23 December 2021 (Ex 1). Contentions 1 and 2 from Ex 1 were pressed by Council. Both of these contentions relate to flood risk, with Contention 1 focusing on the provisions of cl 5.21 of WLEP and Contention 2 concerned with the relevant provisions in WDCP (ie Chapter E13).
Proceedings commenced on 5 April 2022 with a site view, at which a number of lay submissions were also heard (I give attention to the lay submissions immediately below). On 6 April an adjournment was taken to allow further work on identified areas relating to the flooding risk question. Proceedings resumed on 1 June 2022, principally for evidence on the flood risk question. The parties' closings were made by way of written submissions, the final of which was filed on 4 July 2022. In-Court proceedings were conducted for the most part using AVL, consistent with the Court's COVID-19 Pandemic Arrangements Policy (February 2022).
The experts providing evidence in proceedings are nominated below. Expert Expertise Engaged by S Branch Flooding and stormwater Applicant D Bewsher Flooding and stormwater Council L Rollinson Planning Applicant N Ashton Planning Respondent A Cadogan Urban design Applicant A McRobert Urban design Respondent R Surian Landscape Architecture Applicant L Campbell Child care centres Applicant K Hollyoak Traffic and parking Applicant C McLaren Traffic and parking Respondent

Lay submissions

The Court heard from seven lay objectors during the site inspection. A summary of the objecting submissions was tendered and marked Ex 10. I am aware that there are further written objecting submissions as evidenced in Council's Bundle of Documents (Ex 2 Tab 17).
There was time in this instance for me to call on the experts to convene and consider the lay submissions and to furnish the Court with supplementary reports in regard to the issues raised in them. Supplementary joint reports were prepared by the following experts and tendered, respectively, as follows: town planners (Ex 12) flooding and drainage (Ex 13) and traffic and parking (Ex 14).
I have considered the submissions and the reports prepared by the experts in response. I note that the consideration of the lay submissions has resulted in some examples of the inclusion of additional conditions to the agreed (without prejudice) conditions of consent, which were ultimately filed on 10 June 2022. Ultimately, it is fair to say that there was good agreement on the part of the experts that the amended proposal, with conditions, adequately addressed each of the concerns raised in lay submissions, including in relation to the proposal's consistency with the Education SEPP and the CCP Guideline, compatibility with the local setting and amenity implications for adjoining residential properties, along with traffic and parking adequacy. In the examination of lay submissions on flooding, Ex 13 does point to some differences between the experts on this topic. I also note the planning experts referred to their reliance on flooding specialists in regard to this risk aspect of the proposed childcare centre. I note the consideration of the flooding question is the major point of attention in this judgement and I need not deal further with it at this point. Suffice to say here that, excluding the question of flooding risk, I am satisfied that the proposal responds satisfactorily to the concerns raised in the lay submissions.
I now turn to the flooding risk question.

Issues for attention

The concerns relating to flood risk can be synthesised down to four topics: 1. Applicability of cl 5.21 of WLEP 2. Childcare centres as an "unsuitable land use" in the site circumstances under WDCP 3. Whether the proposed development would result in an unacceptable increase in flooding (either on the site or off-site) 4. The adequacy of the Flood Emergency Response Plan(s) as responses to flood risk (including the appropriateness for shelter in place during flood events).

Applicability of cl 5.21 of WLEP

Clause 5.21 of WLEP is concerned with "flood planning". It provides certain jurisdictional tests in relation to this topic. There was a difference of view among the parties on the applicability of its provisions. While the applicant also argued that the relevant jurisdictional requirements of cl 5.21 were met in any event, the Council disagreed. The parties indicated that there had been only one other Land and Environment Court case where the question of the applicability of this provision, at a point in time, had been considered in a contested setting (OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 (OM Vinayak). The questions raised in this instance were different to those in OM Vinayak. It is necessary for me to give consideration to the matter here.
The particulars of relevance to this case are as follows:

The DA was lodged with Council on 16 March 2021.
On 16 March 2021, it was cl 7.3 of WLEP which was concerned with "flood planning". Its form was reproduced at Tab 4 of Council' Bundle of Documents (Ex 2).
The Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument Order) plays the function of prescribing the form and content of local environmental plans. It establishes the "standard instrument" which directs the content of local environmental plans such as WLEP.
On 14 July 2021 the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 was made. It had the relevant effect of adding cl 5.21 to the standard instrument as a mandatory provision (for immediate convenience, henceforth I will call this the Clause 5.21 Order).
Under s 3.20(4) of the EPA Act, WLEP is taken to have adopted cl 5.21 at the same time.
Also on 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 was made (henceforth: SEPP Flooding 2021). The key legal effect of SEPP Flooding 2021, for this matter, was to amend WLEP by repealing cl 7.3.

The applicant's argument is that, as a consequence of the above, there is no "flood planning" clause within WLEP applicable to the DA. There are two limbs to this argument. The first is that while s 3.20(5) of the EPA Act allows opportunity for it, there were no direct savings or transitional provisions made in regard to the Clause 5.21 Order. Thus, under cl 8(1) of the Standard Instrument Order, and given the application was made to Council prior to the Clause 5.21 Order coming into effect, cl 5.21 does not apply to the DA. The second point is not just that SEPP Flooding 2021 did not contain any savings provisions, it is the fact that it is not an "amending order" (this repeal of cl 7.3 was effected by a State Environmental Planning Policy). Clause 8 of the Standard Instrument Order therefore does not come into play, and the repeal has immediate effect in regard to the evaluation of the DA.
I understood Council's argument to be based on the following two limbs. First is that s 3.20(1) of the EPA Act should be understood to have a limited remit (Respondent's Outline of Submissions filed 24 June 2022 (ROS) par 78): It permits a standard instrument to be prescribed, by order. That is all it permits. The [Standard Instrument Order], made in 2006, was an exercise of this power. As made, it did not contain clause 8, or any provision of a savings nature.
The second limb is concerned with s 3.20(5) of the EPA Act, and, as I understood the argument, that it provided for only a narrower (or applied) rather than more general capacity to make savings provisions (ROS pars 79-80): "Section 3.20(5) permits an amending order - that is, an order that amends the Standard Instrument - to contain provisions of a savings nature - but only consequent upon the amendments made by the amending order. It is not a power to create a general, free-standing, savings provision or regime. The present form of the SI Order (not the Standard Instrument itself) contains three provisions of a savings nature - clause 8, 9 and 10. Each such clause was inserted into the SI Order by an amending order, accompanying a defined suite of changes. In the case of clause 8 it was the Standard Instrument (Local Environmental Plans) Amendment Order 2007. In the case of clauses 9 and 10, the amending order is expressly identified in each clause."
Council's conclusion was that cl 8(1) of the Standard Instrument Order does not apply to the Clause 5.21 Order. Clause 8 was added to the standard instrument with Standard Instrument (Local Environmental Plans) Amendment Order 2007 (2007 Amending Order). Despite the general terms in which it is expressed, cl 8 of the Standard Instrument Order was only intended to apply to the amendments made otherwise by the 2007 Amending Order.

Consideration

It seems to me that Council holds too narrow a view of the powers available under s 3.20(1) of the EPA Act to prescribe the standard form and content of local environmental plans under the standard instrument system. There is nothing to suggest this prescription needs to be by way of a one-off exercise of power. Indeed, among other more significant provisions, s 3.20(4) suggests that mandatory provisions of a standard instrument may be amended by a further order under s 3.20(1).
While I agree with Council's position that s 3.20(5) of the EPA Act is not the provision which provides for "a general, free-standing, savings provision or regime", this is of no concern because there are powers to create such a provision under s 3.20(1), in my view. I see s 3.20(5) as concerned with permitting specialised savings provisions, consequent on a particular amending order, such as those at cll 9 and 10 of the Standard Instrument Order. In my interpretation, s 3.20(5) has no direct relevance to the provisions at cl 8 of the Standard Instrument Order which are intended as a general provision of the standard instrument.
It follows that I agree with the applicant's submissions that neither cl 5.21 or 7.21 of WLEP apply to the proposal.

Childcare centres as an "unsuitable land use" in the site circumstances

Chapter E13 of WDCP is concerned with floodplain management. Clause 6 of this chapter is titled "key criteria for determining applications". With this objective in mind, clauses 6.2 and 6.3 introduce land use categories and flood risk precincts, respectively. It is agreed that the site falls within a "medium flood risk" precinct, which cl 6.3 describes as follows: "In this precinct there would be a significant likelihood of flood damage and/or danger to life, but these damages or danger to life can be minimised by the application of appropriate development controls."
Clause 6.4.3 refers to Schedule 8 of Chapter E13 which provides certain "prescriptive controls" in relation to specified flood risk areas. It is relevant here because Schedule 8 includes the Collins Creek catchment within which the site is located. There is not dispute that these controls indicate "critical utilities" as an "unsuitable land use". It is further agreed that the proposed child care centre would be classified as a critical utility under Appendix A of Chapter E13.

Consideration

Non-accordance with the prescriptive control at Schedule 8 of Chapter E13 of WDCP should not be considered a bar to the proposal. The assessment of compliance with Chapter E13 requires consideration of relevant performance criteria and objectives. This position is clear from cl 6.1 of Chapter E13 of WDCP, from the expert advice (at Ex 3 par 1.2.1.2), and importantly, from s 4.15(3A) of the EPA Act, which brings a statutory foundation to the requirement for flexibility. This all points to the conclusion that the "unsuitable land use" designation for child care centres under WDCP cannot be seen as grounds, of itself, to refuse the application.

Whether the proposal would result in an unacceptable increase in flooding

Further policy provisions in Chapter E13 of WDCP

I will commence with further particulars on the intentions behind Chapter E13 of WDCP.
Clause 3.1 provides the following as the key objectives to this chapter: "a) Maintain the existing flood regime and flow conveyance capacity; b) Maintain the function of floodway and flood storage areas; c) Reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone land; d) Reduce private and public losses from flooding; e) Improve public safety with respect to flooding; f) Minimise the potential impact of development and other activity upon the aesthetic, recreational and environmental value of the waterway corridors; g) Increase public awareness of the hazard and extent of land affected by the full range of potential floods; h) Ensure new development must, as far as practical, reduce the existing flood risk, and in no circumstances should the flood risk be worsened; i) Ensure new development (with the exception of waterway crossings) does not encroach within areas susceptible to channel erosion, migration, bank failure and slumping; and j) Deal equitably and consistently with all matters requiring Council approval on flood affected land, in accordance with the principles within the latest version of the NSW Floodplain Development Manual or its update."
Clause 6.4.1 and 6.4.2 of Chapter E13 then provide objectives and performance criteria relating to flooding and development application evaluation. A selection of the provisions more directly relevant to the contested issues here are nominated below: "6.4.1 Objectives … b) To require developments with high sensitivity to flood risk (e.g. critical public utilities) be sited and designed such that they are subject to no or minimal risk from flooding and have reliable access; c) Allow development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls, provided that the potential consequences that could still arise from flooding remain acceptable having regard to the State Government's Flood Policy and the likely expectations of the community in general; … e) To ensure that design and siting controls required to address the flood hazard do not result in unreasonable impacts upon the amenity or ecology of an area; and f) To minimise the risk to life during flooding. 6.4.2 Performance Criteria a) The proposed development should not result in any increased risk to life; b) Development should not detrimentally increase the potential flood affectation on other development or properties either individually or in combination with the cumulative impact of development that is likely to occur in the same floodplain;" …
Apart from the prescriptive controls relating to land use categories (Schedule 8 of Chapter E13) referenced above, cl 6.4.3 also nominated a set of "permissible flood impacts" for various development types in its Table 2. The relevant "allowable" increased flooding is nominated as 20mm for residential or commercial developments and 10mm for "critical" or "sensitive" uses.
Clause 6.5 of Chapter E13 is concerned exclusively with flood-related requirements of car parking. Again, a selection of more directly relevant provisions to the contested issues are nominated below: "6.5.1 Objectives a) To minimise the damage to motor vehicles from flooding; b) To ensure that motor vehicles do not become moving debris during floods; c) To minimize damage to garages and their contents from flooding; and d) To minimise the risk to human life resulting from the inundation of car parking, or driveway areas." "6.5.2 Performance Criteria a) The proposed car parking should not result in any increased risk to vehicle damage; b) The proposed garage should not detrimentally increase the potential flood affectation on other development; c) The parking should be designed considering the hazard curves in Figure 3; d) The proposed parking or driveway area must not increase the risk to life from flooding; and e) The parking should be designed to ensure that vehicles will not be transported by floodwaters." "6.5.3 Prescriptive Standards a) Open car parking - open car parking subject to inundation should be designed giving regard to vehicle stability in terms of depths and velocity during inundation by floodwaters, ensuring that each car parking space is within hydraulic hazard category H1 in Figure 3 during a 1 % AEP flood." …
Figure 3, as referenced in cll 6.5.2 and 6.5.3 above, provides "combined flood hazard curves", and is reproduced below. Figure 1 - Water depth and flow velocity establish "combined flood hazard curves" (Source: Figure 3 in Chapter E13 of WDCP)

Further particulars on the proposed civil works

There were a number of iterations of the stormwater and flooding management infrastructure proposed for the development, in the lead up and during the course of the hearing. The material before the Court, on this topic, is understood to be essentially that tendered as Ex F, which included the following:

Supplementary Flooding and Stormwater Drainage Expert Report of Stephen Branch dated 13 May 2022 (behind Tab 1 of Ex F)
A set of Civil Works Plans dated 12 May 2022 (behind Tab 2).

The material behind Tab 1 of Ex F also included as appendices Flood Emergency Response Plans for both the childcare centre and medical centre which I address later in the judgement.
Notable aspects of the civil works amendments incorporated into the application via Ex F were nominated as including (Ex F Tab 1 p 8): - The diverted pipe under the entry driveway has been significantly increased from one 600mm deep by 1,800mm wide culvert to two 1,300mm deep by 2,400mm wide culverts • - Overland flow from the Princes Highway and through the car parking area east of the Medical Centre has been collected through multiple 1,200mm by 1,200mm inlet grates incorporated into the original dish drain and diverted into the new culverts • - The pedestrian path along the east side of the driveway has been raised and a 300mm wide kerb introduced to allow the path to be more than 150mm above the road level • - Additional kerb inlet pits have been installed adjacent to the pedestrian path to collect the remainder of overland flow which currently cascades into and floods residential Lot 4 DP 1107071 to the east of the driveway and divert it into the new culverts • - Overland flow is primarily directed along the driveway and not through the car parking under the new building nor through adjacent properties east of the driveway

Evidence

New flood modelling was undertaken, factoring in the proposed civil works amendments. In accordance with clause 5 of Chapter E13 of WDCP, three "before and after" flood scenarios were examined in the hydraulic modelling prepared by Mr Branch (Ex F Tab 1): 20% Annual Exceedance Probability (AEP), 1% AEP and Probable Maximum Flood (PMF). The "blocked" conduit scenario under WDCP was the main area of focus in the expert examination. WDCP controls reference 1% AEP in particular, but it is also indicated that flood impacts on PMF "will be assessed on merit" in regard to a number of factors including "impacts to evacuation routes and onsite refuge service levels" (WDCP cl 6.4.3(c)(i)).
At present, less than half of the site falls within the H1 flooding hazard for 20% AEP. There are areas of H2-H5 hazard for the 1% AEP event at present. The PMF event would bring H5 hazard flooding to a fair portion of the site.
There was disagreement in regard to one of the parameters adopted in regard to flood modelling. The point of dispute related to the assumed 'roughness' factor (known as the Mannings coefficient or "n value") for a section of the driveway used for access into the childcare centre parking and at-grade parking. If roughness (or resistance) is higher, this can reduce the speed of water flow and thus reduce risk. Usually, the adopted n value for the scenario before the Court here, would be 0.02. Calculations based on this value suggest hazardous conditions for the driveway. Mr Branch adopted an n value of 0.03 for this section of the driveway in his calculations. Mr Bewsher thought it unreasonable to adopt a 0.03 n value. In oral evidence he expressed the view that the kind of road exhibiting a 0.03 n value was that seen in the slip risk area for boat ramps, and that a driveway of that finish may cause problems with "amenity and tripping pedestrians and so on" (Transcript 1/6/22 p 37 L 12). I was generally convinced by the evidence and arguments of Mr Branch on this point (Ex 14 par 11). In addition, I note that the parties' suggested conditions of consent (without prejudice) which would require design and construction of the driveway to a 0.03 n value. If this means construction similar to boat ramp standard for the relevant length, this would not appear to me to be untenable, noting that separate pedestrian pathways are available.

Whether the proposal would result in an unacceptable increase in on-site flooding

Using the 1% AEP event as the indicator, there was agreement among the experts that the proposal would improve the status of the at-grade carparking area (used particularly by visitors to the medical centre) in regard to flood hazard (reference Figures 3.2.9 and 3.2.10 in Ex F and Transcript 1/6/22 p 36 Lines 7-14). Figures 3.2.10 also shows that the at-grade parking area would all fall within the H1 flood hazard designation, consistent with the provisions of cl 6.5.3(a).
With the proposed amendments to civil works and revised modelling, Mr Bewsher also accepted that previously deemed unacceptable impacts of the 1% AEP event in regard to flows across the northern boundary had "been largely eliminated". Mr Bewsher believed there remained an exceedance to Council's 20mm control (under cl 6.4.3 of Chapter E13 of WDCP) but that this could be addressed by conditions of consent (Ex 14 par 8). Mr Branch believed the exceedances could be explained, a topic I return to below. In any event, I am satisfied that the proposal can, at least, be made acceptable via conditions in regard to the concern about flooding impacts on site.

Whether the proposal would result in an unacceptable increase in off-site flooding

Even with the exchanges between the flooding experts in regard to modelling particulars, these experts were unable to agree on whether the proposal would bring about flood impacts outside the site (beyond the 20mm allowable under cl 6.4.3 of Chapter E13 of WDCP (see [37])).
I do note that Mr Branch indicated that current deficiencies of the stormwater system directing flows from the Princes Highway into a sag pit in the rear of 42 Hopetoun Street, and resulting in regular flooding to 40 Hopetoun Street, would be corrected. A point agreed by Mr Bewsher. This was a positive outcome of the proposal in flooding impact terms.
Notwithstanding his remarks in regard to flows across the northern boundary, Mr Bewsher believed modelling still indicated "unacceptable increases (in flood levels) occurring to the north-west of the site along the Princes Highway" (Ex 14 par 9). He referred to his Figure 2 (Ex 14 p 10) which Mr Bewsher developed from modelling prepared by Mr Branch. On his Figure 2, Mr Bewsher pinpointed three locations suggesting the following characteristics in regard to off-site impacts in 1% AEP floods: "Area where flood level increases from 4mm to 6mm are occurring. This is pushing additional flows in a north-easterly direction along the Princes Hwy (rather than through the Site)". "Flood level increases of up to 45mm (due to additional flows being diverted along Princes Hwy)". "Small area with flood level increases just exceeding 20mm (due to additional flows being diverted along Princes Hwy)".
Mr Branch provided explanations in relation to each of the areas identified by Mr Bewsher, as follows: "(The areas indicating flood impacts greater than 20mm) are located adjacent to areas of flood level reduction (refer Figure 3.2.11 in (Ex F Tab 1)) and therefore are due to model instability and not a fundamental increase in flood level. … The most significant values (highlighted by DB in Figure 2 of Ex 14) are located downstream of the Princes Highway cross-section which shows minimal flood level increases. The model instabilities are not repeated in the PMF impact (reference is made to Ex F Tab 1 Figure 3.2.17)."
Figure 3.2.11 of Ex F, which provided a graphic interpretation of flood level changes pre and post development for the 1% AEP event (blocked conditions), as modelled by Mr Branch, also showed certain areas to the north west of the site as breaching the 20mm standard. Note 4, superimposed on this modelling graphic by Mr Branch, indicated as follows: "Flow in this area is not impacted by proposed development. Therefore these flood level anomalies are not caused by the proposed development."
In disagreeing with Mr Bewsher on the significance of these modelling outputs in his oral evidence, Mr Branch posited (Transcript 1/6/22 p 25 Line 1-8): "There's a lot of things going on in the area of those increases, and if you look at the very first report we did, you can see that the velocities in those areas are extremely high, they're in the order of 3 to 4m/sec, and, in fact, the Princes Highway is under supercritical flow in those areas, and there are a lot of things going on in those areas which could explain what are instabilities in the model, and anomalies in the real life situation."

Consideration

In my view both experts presented as having a high level grasp of the topic at hand and good capacities to apply the technical (modelling) devices to present their individual opinion. There was also considerable cross-examination of the witnesses by experienced counsel, which did little in my view that swayed the opinions of the experts as expressed.
The starting point for my consideration here is the objectives of Chapter E13 of WDCP, and in particular objective (h) to cl 3.1, which is to "(ensure) new development must, as far as practical, reduce the existing flood risk, and in no circumstances should the flood risk be worsened". Clause 5 then provides for a scheme for the evaluation of flooding risk, which includes the provision of prescribed flood modelling. Clause 6.4.3(b) then, in providing key criteria for DA evaluation, includes the provisions for permissible impacts up to 20mm for 1%AEP flood event for residential, commercial or industrial uses.
When I turn to Figure 3.2.11 (Ex F) with a mind to objective (h) at cl 3.1 of Chapter E13, it is clear that there are some areas where flood impact would be reduced. But there are also clearly areas where flooding would be increased. A small portion of this area, as shown in the modelling, would have impacts greater than the permissible 20mm. It seems obvious to me that in WDCP's "system" for flood risk evaluation in DAs, the starting point would be to give considerable weight to the outputs of the required modelling. To do the alternative would be to be selective in which of the aspects of the system one might use for evaluation purposes. It seems reasonable to expect that the modelling will not always present the precise intended representation of a future reality, sometimes representing higher, sometimes lower, flooding levels. Here I am referring to errors of precision rather than systematic errors. As it happens, WDCP has a built in way of managing this, through allowing permissibility of some increases in flooding as modelled. But, as I say, that is just the starting point, there is a need to be flexible in the application of development control plan provisions, and to look for alternative ways of achieving the relevant objectives.
This takes me to the contested arguments between the experts. Mr Branch sought to prove that the exceedances (of 20mm) appearing in the modelling were not real. Mr Branch noted that the most significant areas of increase were downstream of the Princes Highway cross-section which showed a minimal flood level increase. He believed that flow in these areas was not impacted by the proposed development. Mr Branch thought the modelled exceedances were caused by "high (flow) velocities" and "supercritical flow", which he believed were not well dealt with in the flood model. I understood Mr Branch to be suggesting that there was a systematic error in the model bringing about this result. I was more convinced by Mr Bewsher's arguments explaining that "slightly less water is going into the site, and slightly more water is going down the Princess Highway" during the flood event, and that this "causes the increases that we see further down the Princess Highway". He provided oral evidence that high velocities and supercritical flow were accounted for in the model (Transcript 1/6/22 p 27 L 6). He argued, persuasively for me, that a small increase in flood flow along the Princes Highway, as a result of the development, was able to bring about the exceedances, of the kind arising in the model. Mr Bewsher's explanation was convincing that (Transcript 1/6/22 p 31 L 37-43): "… as the water's going in a north easterly direction along the Princess Highway, it will push up to the right, that's to the east, and go in against those buildings, and that's where you see the increased water levels, because in those areas, the velocities will be lower once you move away from the higher flows that are in the middle of the Princess Highway and on the western side of Princess Highway."
In light of the explanations of Mr Bewsher, I am unable to find that Mr Branch's arguments convinced me that the exceedances of 20mm shown in the modelling should be set aside. The proposal would result in an increase in off-site flooding and detrimentally increase the potential flood affectation of other property, breaching certain provisions of WDCP, in relation to prescriptive controls and objectives.

Proposed shelter in place strategy and Flood Emergency Response Plans (FERPs) as responses to flood risk

Shelter in place strategy

In his evidence, Mr Bewsher referred to NSW State Emergency Services (SES), the responsible agency for dealing for floods in NSW, as not supporting the proposed "shelter in place strategy" adopted by the proposal during flood events. An additional bundle of documents tendered by Council (Ex 15) provided the particulars. The letter from the SES (dated 4 June 2021) indicated that its primary response strategy for flooding emergencies was evacuation. The letter indicated that, in principle, sheltering in place provided for a greater risk.
I note the advice provided. However, it is necessary and appropriate for the Court to move beyond the principles and examine the merits of the particular case before me, including the particulars of the planned emergency response planning and implementation programme, which I turn to now.

Characteristics of proposed Flood Emergency Response Plans

The applicant engaged specialists in the field to prepare Flood Emergency Response Plans (FERPs) for both the childcare centre and the existing medical centre (Ex F Tab 1 Appendices D and E, respectively). Each of the FERPs is based on a shelter in place approach. Here I pay most attention to the child care centre's FERP, but certain points require attention with respect to the existing medical centre. For my purposes here I note in particular the following aspects of the childcare centre FERP (henceforth CCFERP).
Property owners are responsible for provision of an on-site flood alarm system which includes sound and visible alarm features. Along with the alarm, this event triggers the closing of the carpark (palisade style gates for both cars and pedestrians (proposed Condition 23b) at Hopetoun Street and roller door shutters at entry to elevated child care centre carpark. There are requirements for the maintenance of the system and annual testing. Property owners are also responsible for "visible legible flood warning signage" at car park entry and within the carpark. The carpark would be closed during non-working hours. The signage would include the following instructions: When the flood alarm sounds or flashes: • If the child care centre is open, take the stairs up to Level 1 and shelter in the car park • If the child care centre is closed, take the footpath to the medical centre and shelter on the upper floor.
Centre Director is appointed "chief flood warden", with nominated staff also having varying supportive responsibility. Responsibilities include:

System for monitoring for severe weather warnings.
On the triggering of the flood risk alarm, ensuring children remain on Level 1 or above.
System for advising parents and carers on general and specific flooding risk (eg "Kinderloop" communication tool), and providing updates. When the alarm has triggered, responsible for advising and ensuring no one leaves the premises. The message to parents and carers advises that local streets may be flooding and unsafe for travel and there will be no extra fees for care until the emergency has passed
Back-up systems for technology failures (including back up electricity generation).
Review of CCFERP after 5 years and after flooding events.

The CCFERP includes very specific tools, draft documents and scripts to assist in implementation of the required actions.

Evidence

In respect to Mr Bewsher's position on FERPs, the applicant argued in closing submissions (ACS par 44): "Counsel for the Council confirmed orally and DB confirmed during his oral evidence that they were both happy with the FERPs and they did not press any contention in relation to them. Although DB expressed a qualification that the Flood Plain Development Manual and the SES do not support development consents being granted in reliance upon FERPs, DB did not say he agreed with that position. To the contrary, he agreed in cross-examination that he had been involved in childcare centres which were flood affected and he had supported them."
It is fair to say, at least, that Mr Bewsher believed that the FERPs, along with agreed related consent conditions, did all that they were practically able to in terms of the task of managing flood responsiveness. I did not take this to mean that there is no issue now with the CCFERP. Mr Bewsher remained sceptical about whether the CCFERP would be able to achieve its ambitions. His concern was related to the perceived unpredictability of human behaviour in flood events. The persons of concern were the parents and other carers rather than the childcare centre employees or children.
My understanding was that Mr Branch believed the FERPs reasonably managed the risks associated with the proposed childcare centre. When asked in cross examination whether flooding risks can be fully mitigated by a FERP, he responded with practical sense (2022 p 46 par 20): "No risks can be fully mitigated. They can only be mitigated to a reasonable extent."
Further points of evidential relevance in the material before the Court and highlighted in the applicant's submissions included: (1) the particular characteristics of flood events relevant to the site, including that these relatively short duration events affecting the site (due to site's upstream location and catchment size and caused by "under capacity drainage system") should be differentiated from the larger "riverine" flooding events (eg Applicant's Written Reply Submissions, filed on 4 July 2022 (ARS) par 12), and (2) the low risk of occurrence of 1% AEP and PMF events themselves, but then also noting the fact that the centre is only open 5 days a week and 7am - 6pm (less than half a 24 hour period), which reduces probability again (eg ARS par 37).

Framing the evaluation

In regard to the evaluation of the FERP, the parties referred to the Court's planning principle expressed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (Renaldo) (at par 54) where Brown C found as follows in respect to management plans (which the FERP can be thought of as a form of): 54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?
For completeness I note that in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72] Pearson C found that the sixth question in Renaldo should be re-worded to read: "Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?"
I can say at the outset that I agree with the experts that FERPs present as of relatively high quality. The context is identified and actions to be taken, and by whom, "before, during and after" floor emergencies are clear. With respect to Questions 1 and 6 of the Renaldo planning principles, the FERP is well integrated with the conditions of consent (and the childcare centre plan of management), with normal enforcement provisions available (relevant to Renaldo Question 3). My general view is that Renaldo Questions 7 and 8 are also covered through the provisions for reviewing FERPs after flood events and on a five yearly basis. Questions 2, 4 and 5 from Renaldo are of assistance in assessing the reasonableness of the FERPs as a response to flood risk considerations, the key factor in the evaluation of the proposal. That is whether: 1. The FERPs require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case. 2. The FERPs require absolute compliance to achieve an acceptable outcome. 3. The people the subject of the FERPs can be reasonably expected to know of the requirements.
The parties made submissions in relation to the first two points above. Council arguing that the FERP, relating to the childcare centre at least, provided (Respondents Closing Written Submissions filed 24 June 2022 (RCS) par 67): "… an example of a plan of management being unacceptable because it relies on measures about which there is doubtful confidence - because they require people to act in a manner that may be unlikely in the circumstances; and fundamentally, the plan requires absolute compliance to achieve an acceptable outcome."
It was further put by Council that (RCS par 12.5): "The FERPs are an inadequate response - they cannot address the inherent limitations in both attempting to prevent persons from coming to, or leaving the Site in a flood, and in the foreseeable need to evacuate in certain Liability limited by a scheme approved under Professional Standards Legislation 3 emergencies, or to have emergency services attend the Site in other emergencies; and are inappropriate mechanisms in circumstances where its effectiveness relies upon the vigilance and adherence of third parties over which the applicant (and the operator of the child care centre) will not have effective control. ..."
In respect to whether the FERPs require people to act in a manner that would be unlikely or unreasonable in the circumstances, the applicant argued that (Applicant's Written Submissions in Reply filed 4 July 2022 (ASR) par 35): "The FERP requires the occupants to do what they would do anyway in the event of a major flood. The 1% AEP and the PMF are extreme events. A person would not normally seek to go outside or drive on roads in such events. They would usually stay where they are until the weather event passes. This is particularly the case when the person has been made aware of the flood risks and have been told not to attend or leave the centre. It would be unlikely and unreasonable for a person to seek to leave or attend the site in these circumstances."
In respect to the need for absolute compliance the applicant argued (ASR par 35): "The centre and parking has been designed to be above the PMF level. An alarm system has been installed and the roller door to the childcare centre ramp and the gate to the site will close upon the trigger of the alarm. If a person decided to act in contravention of the FERP then they could not physically leave the centre or enter the site."
The applicant also argued that the Court should assume that there will be compliance with the FERP. I do acknowledge the point. As indicated, for example, in Northern Beaches Council v Tolucy Pty Ltd [2020] NSWLEC 76 where Moore J found at [148]: It is long-settled that an applicant …, if granted a development consent subject to conditions, will abide by those conditions of consent.

Consideration

I believe it is reasonable to expect that the appointed Chief Flood Warden and Flood Wardens within the centre would be diligent in regard to early warning of events and messaging nominated parents and carers about potential flooding issues. It is also expected that there would be a highlighting of the flood risk at other times to parents and carers. The CCFERP includes what I see as very handy scripts for messages and phone conversations with parents and carers and systems for cross checking whether messages have been received (CCFERP Appendix C). There is nothing unreasonable about these requirements. It is also reasonable to assume that agreed technological arrangements will be in place which include back up electricity and telecommunications systems.
It is clear from the CCFERP that the actions of most direct consequence begin with the 20% AEP flood event (CCFERP s 3.3): "The flood sensor will be located in Pit 3 (located quite central to the childcare centre site along the western boundary)… It is to be located at a level approximately equal to the 20% AEP flood level in the location of Pit 3, which is about 24.6 m AHD. This should give approximately 10 minutes of warning before the undercroft parking of the child care centre floods even in the fastest rising flood. When the alarm is triggered, a boom gate at the site's entrance on Hopetoun Street will come down. This will prevent any vehicles from entering or exiting the premises. An audible alarm inside and outside the child care centre will activate. This is the signal to initiate the specific actions detailed in this document."
I note that the conditions of consent provide for a palisade gate rather than a boomgate. The intention is to prevent both people and vehicles from entering or exiting once the alarm is triggered (by sound and flashing lights).
Once the alarm is triggered, it seems entirely reasonable to accept that employees of the centre would undertake the actions they are required to ensure the safety of children in the centre. The actions are clear and not difficult.
What is less clear is the actions of parents and carers before, during and after flood events. I agree with Council and Mr Bewsher that it is in regard to the actions of this group that the CCFERP has limits to its capacity. I thought Mr Bewsher's comments on the topic generally rang true of themselves (Transcript 1/6/22 p 45 L 35 et seq): "… However, in these types of events, people do irrational things, and proposals for messaging don't always work. The people that get the messages, the parents and the carers, you know, grandma does it one day, and uncle Fred does it another day, and to expect that all these people will know what to do in an event, those things can be managed to some extent, but they can't be totally eliminated, and that's why, as I've said in the joint report, that's why the SES wrote the letter they did in opposition to this application, and relying on shelter in place. The other issue with the flooding relates as well to the procedure related to the boom gates and closure. You can imagine a situation where the water is rising rapidly and people are leaving in a hurry and the boom gate goes down, so there will be people in cars, supposedly queued at the boom gate, you know what it's like in a little traffic jam like that, you've got to manage turnaround and go back, but first of all realise that the boom gate isn't going to come up. They have to realise the water levels are rising. They have to think, we should go back to the car space and go back up to the place of refuge. I mean, that's a bit of a dangerous situation, but that's the situation I'd be concerned about with cars being mobilised and moved, and people trying to get out of the vehicle. It is a risk which is managed, to some extent, by the two FERPS, but it's not a risk that can be fully mitigated or eliminated. There are residual risks with this sort of an application."
There seems to me to be a number of settings where third parties either dropping off or picking up children in care might act in unexpected ways, beyond the capacities for FERPs to address, which bring about flooding related risks. There may well be others but some of these settings include: 1. Flood event coincides with a situation where the individual responsible for drop off is under particular pressures and has no readily apparent option other than to drop off the child (eg those under pressures at work which make dropping of the child an acute need). They may believe, against FERP ambitions, that there's a chance to drop off the child before the flood is problematic. 2. Flood event coincides with a situation where the individual responsible for pick up is under particular pressures which have a relationship to picking up the child at a certain time (eg due to other care responsibilities). They may seek to turn up at the centre, again against FERP ambitions. 3. The parent or other individual responsible for drop off/pick up otherwise ignores the directions on flood risk and non-attendance, for example due to anxiety in relation to children in care during the flood risk event. 4. Flood event coinciding with a situation where an individual generally responsible for day to day drop off and pick-up of children is not available and, no doubt against the FERP principles, the person doing duties for that day is not aware of the flood event protocols.
These situations may involve people behaving irrationally, but none of the situations necessarily present as particularly unreasonable, or as unlikely behaviours, in my opinion. It is necessary to consider both the potential for such situations to occur and the implications should they do so.
In regard to considering the potential for these events to occur, the first point of consideration is the potential occurrence of the relevant flood event. Here I note the particular characteristics of flood events relevant to the site and its use, including: (1) their relatively short duration, and (2) the low risk of occurrence of 1% AEP and PMF events of themselves, especially given opening hours.
Next is to note that under the FERPs, the alarms begin and vehicle and pedestrian gates to Hopetoun Street "will come down" with flooding "at a level approximately equal to the 20% AEP flood level" (see [79]). The logic argued is that this allows 10 minutes leeway "before the undercroft parking of the child care centre floods even in the fastest rising flood". In my opinion, the 20% AEP event should not be considered as a rare event.
I found the implications of this inter-relationship between the 20% AEP flood level (as the triggering factor) and the 1% AEP flood level (as the risk sought to be protected from) as not sufficiently considered. While almost in obiter, some commentary in the applicant's reply submissions helps me to explain the point. The phrasing was that there were "only 2, extreme, short duration events that affect the site" (ARS par 39). As points of attention in the hearing, I suspect the reference was to the 1% AEP and PMF events. The adoption of these events for modelling purposes, or for the purposes of preparation of flood hydrographs is appropriate and necessary, but the real world rainfall and consequential flooding is not so formulaic. The point here is not to dispel the fundamentals of flooding on the site (which are very different from larger "riverine" flooding events (ARS par 12), but more to not be overtaken by the precision presented in modelling outputs. As put by Mr Bewsher (Ex 7 par 31): "…Floods come in all shapes and sizes, and are of variable duration. No two floods are the same. A 'design flood' never occurs."
In principle at least, the storm that brings about the 20% AEP flood level at Pit 3 will occasionally go on to bring about the much higher 1% AEP and much rarer again the PMF event. But more commonly, in my understanding, that rainfall event which first triggers the alarm and closes off the site may peter-out or go on to bring about flood levels of somewhere in the continuum of 15%, 10% or 5% AEP (etc), with decreasing likelihood, and increasing safety risks. There does not seem to be any way to know which extent of flooding the closing off of the site (with the 20% AEP flood level at Pit 3) is protecting against. If there were, my sense was that the FERPs would or could have tackled this.
I found Mr Bewsher's evidence useful in regard to understanding the implications of this problem (see [83]). One setting could have the responsible carer (accompanied by the child if dropping off) waiting for the palisade fence to open. While bringing about traffic concerns, sometimes it may be well worth the wait for the individual concerned (eg when the 20% AEP event does trigger the alarm but flooding dissipates soon after, never reaching, say, the more dangerous 1% AEP event, and the site opens up). Other times a more substantial safety risk arises with queuing cars deciding to depart, or not, as the flood increases. Mr Bewsher described more directly the situation inside the site when the palisade fence closes when carers have already entered the site, suggesting it as a "bit of [a] dangerous situation" (Transcript 1/6/22 p 46 L 7). This situation could arise when cars enter the site well before the 20% AEP event and take some time to depart.
I was only partly convinced of the argument that this hardly matters because of the flooding at the intersection of Hopetoun Street and the Princes Highway (that is to suggest that local flooding would prevent cars getting to the site anyway). While it no doubt occurs, the particulars of flooding of this intersection were not made clear during the hearing (the modelling in Ex F did not include the intersection). It can be assumed that it would become impractical for smaller cars to approach the site at certain flood events. However this fact is offset by the more common use of larger SRV vehicles more able to deal with H2 and higher level flooding hazard. A further point is the potential for children in care to reside in the immediate Hopetoun Street area not needing to traverse this intersection.
If I turn to the medical centre FERP, it is clear that new more formalised arrangements are proposed which can help address current flooding risks associated with the existing flood prone parking area. Use of this parking area, under current arrangements, would provide a considerable risk during a major flood event. While there are also residual risks with the proposed formalisation of the medical centre flood risk management arrangements, the fact of the existing risk of the medical centre parking area by patrons is a point of differentiation with the subject proposal. I accept the advice of the experts that the proposed commitment to the medical centre FERP is a positive aspect of the proposal, notwithstanding there may be access inconvenience for lower level flood events.

Conclusion

I am aware that the proposal is satisfactory in regard to many provisions. I am satisfied that it would both provide adequate arrangements in regard to requirements of the children in care and also deals reasonably with concerns relating to compatibility with its context. It is zoned to suit. I also accept that the risk of flood events occurring at the site are quite low. The statistical intervals for flood events reflect this, and it is reasonable to think that events in the middle of the day will bring lower actual safety risks than events in the sweep of children drop-off and pick up times.
However, the proposal would bring a sensitive use into the floodplain in a medium hazard area. The proposal to manage this configuration, through in particular the CCFERP, requires a large group of parents and lay carers to act in a certain way when the relevant flood events do occur. This starts with the 20% AEP event. Irrational behaviour by some lay carers and parents in and around the circumstances when the barrier comes down should be seen as a likely event, with potential for significant adverse consequences. For me, the descriptive material at [81] provides a lucid predictive picture. It is reasonable to expect that the consequences of such behaviour would sometimes attach to higher order flooding risks and public safety concerns.
The frequency of actual flooding events cannot be known, which makes this decision other than clear-cut. However, flooding events do certainly occur, as described in the CCFERP itself (Ex F Tab 1 App D p 8). On balance, it would be unreasonably incautious to find other than that this proposal poses unacceptable increases to flood-related risks. These include risks to public safety for this relatively vulnerable use. The proposed development will also increase the impacts of flooding outside the site, in some albeit small areas beyond permissible limits. I am not persuaded that the otherwise benefits of the proposal, outweigh these negative aspects.

Orders

Accordingly, the Court orders that: 1. The appeal is dismissed. 2. Development Application No.2021/286 for a childcare centre at 42 and 44-46 Hopetoun Street Woonona is determined by way of refusal. 3. The exhibits are returned except for Exhibits 1, A-G, which are retained. ……………………………

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: 27 September 2022

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Cases Cited (4)

Cited By (3)