Land and Environment Court New South Wales Medium Neutral Citation: I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 Hearing dates: Conciliation conference held on 20 July 2021 Date of orders: 2 August 2021 Decision date: 02 August 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The Applicant is to pay the Council's costs thrown away as a result of the reliance on the Concept Flood Culvert System drawing DA-01 prepared by Martens & Associates, Issue A, dated 16 July 2021 in the amount of $1,500 within 28 days. (2) The appeal is upheld. (3) Development Application No. DA/1591/2017 seeking consent for a 72 lot subdivision (comprising 69 residential lots, 2 residue lots and 1 detention basin lot) and the creation and dedication of a park, at Lots 10 & 11 in Deposited Plan 1177776 and Lot 31 in Deposited Plan 23810 otherwise described as 10 Oscar Drive & 51 Geoffrey Road, Chittaway Point NSW 2261, is approved subject to the conditions in Annexure 'A' to this agreement. Catchwords: DEVELOPMENT APPLICATION – residential subdivision – flooding – bushfire – biodiversity – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, reg 55 Land and Environment Court Act 1979, s 34 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 State Environmental Planning Policy (Infrastructure) 2007, cll 45, 111A State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy No 71 – Coastal Protection, cll 4, 8 Wyong Local Environmental Plan 2013, cll 1.8A, 2.3, 2.6, 4.1, 4.1A, 5.21, 7.1, 7.2 Cases Cited: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Texts Cited: NSW Floodplain Development Manual 2005 Planning for Bushfire Protection Guide 2019, NSW Rural Fire Service Wyong Development Control Plan 2013 Category: Principal judgment Parties: I.D.A. Safe Constructions Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: J Reid (Applicant) J Farrell (Respondent) Solicitors: Thomson Geer (Applicant) Central Coast Council (Respondent) File Number(s): 2020/242113 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 1591/2017 by Central Coast Council (hereafter the Council) which seeks Torrens title subdivision of land into 72 lots for residential purpose, residue and drainage on Lots 10 and 11 DP 1177776, also known as 10 Oscar Drive, and a park on Lot 31 DP 23810, also known as 51 Geoffrey Road, Chittaway (the lots together hereafter known as the site). 2. The DA was submitted to Council on 18 December 2017, and after notification, made consistent with relevant planning controls, 20 submissions in objection were received. 3. The DA was internally assessed and referred to the NSW Department of Primary Industries (DPI), Rural Fire Service (RFS) and Ausgrid. Further to the DPI referral, the Natural Resources Access Regulator advised that a Controlled Activity Approval was not required. Ausgrid provided conditions for consent. RFS responded with general terms of approval. 4. On 27 March 2020, the Council refused the DA on the grounds of incompatibility with the flood hazard of the land, incomplete biodiversity assessment report, and not in the public interest. 5. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 6. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams. 7. The application now before the Court, specifically seeks: * creation of 69 residential lots with roads on existing Lots 10 and 11 (hereafter the residential lots), * creation of one residue lot for future conservation on (eastern) part of Lot 10 (hereafter known as Lot 70), * creation of a park on Lot 31 (hereafter Lot 31), * creation of one residue lot for open space on (northern) part of Lot 10 (hereafter Lot 72), * creation of a drainage lot on (southern) portion of Lot 10 (hereafter Lot 71), and * earthworks and drainage works including filling for building pads, on residential lots. 1. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs and documents supporting the DA that visually describe the site. 2. The site is approximately 12.3 hectares (Ha) in area and surrounded by existing smaller subdivided lots, many with single detached dwellings. There are numerous residences surrounding the site, as well as some vacant lots. 3. The site is generally vacant of structures, although a dam is located on the south-western portion of the site and an existing dwelling on Lot 31. The site is covered by extensive stands of trees interspersed by grassed areas. 4. The site is located north of Ourimbah Creek, and within the Ourimbah Creek catchment. Tuggerah Lake is located to the east of the site, and the source of the majority of floodwater. 5. The parties and Court recognise that there is community concern regarding the proposed development at this site. The written submissions of residents whom sought to submit into evidence, are provided to the Court and considered by the parties in making this agreement. The key issues expressed by objectors relate to: flooding; emergency evacuation; stormwater management; road access; and biodiversity. 6. The Council agreed for the applicant to amend the plans and documents, including a Biodiversity Assessment Report (BDAR), that supports the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amendments made to the DA were uploaded to the NSW Planning Portal on 26 July 2021. 7. Based on these amended plans and documents, together with the DA's other supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by residents are addressed. The decision of the parties is to uphold the appeal and grant consent to DA 1591/2017 with conditions. 8. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15 to grant consent to DA 1591/2017, with conditions in Annexure 'A'. 9. The parties identified the jurisdictional prerequisites of particular relevance for the Courts consideration in these proceedings to satisfy ss 4.14 and 4.15(1) of the EPA Act, are consistency with the: EPA Reg; State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy No 71 — Coastal Protection (SEPP 71); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); and Wyong Local Environmental Plan 2013 (WLEP). In addition, the relevant requirements of the Wyong Development Control Plan 2013 (WDCP) are considered. 10. The site is mapped within bushfire prone land, as identified on Council's Bush Fire Prone Land Map (2008). The RFS Planning for Bushfire Protection Guide 2019 is of consideration to grant consent to the DA, and the conditions advised by the RFS have been incorporated. 11. The DA designates an Asset Protection Zone (APZ) to the residential lots, forming future Lot 72. The conditions of consent address the requirements to retain the APZ on the site to protect future dwellings and residents. The parties are satisfied that the relevant requirements for protection from bushfire risk for a subdivision are addressed and that there are no jurisdictional issues to the grant of consent to the DA that relate to compliance with s 4.14 of the EPA Act. The Court is satisfied that s 4.14 of the EPA Act is addressed to grant consent to the DA under appeal. 12. In response to a request by the applicant to rezone the site in 2009, the applicant and the Council entered into a Voluntary Planning Agreement (VPA) on 18 March 2016, which relates primarily to the protection of native vegetation on the eastern portion of the site, future Lot 70. The VPA was intended to have regard to the assessed ecological values on the site, although it is agreed that the site is not mapped as having biodiversity values, pursuant to the Biodiversity Conservation Act 2016 (BC Act). 13. The VPA requires, in clause 6.1, for the applicant, prior to the grant of development consent, to undertake a Biobanking Assessment and make necessary arrangements to address loss of native vegetation, as described in the BC Act. The applicant relies on the BDAR, dated 27 January 2021 to address the requirements of the VPA. The parties and Court are satisfied that the requirements described in the updated BDAR to address native vegetation on the site are considered in the conditions of consent. This contention is resolved. 14. The site is located within land to which SEPP 71 applies, pursuant to cl 4. Pursuant to cl 8, the parties agree that the site is suitable for the proposed development, thereby addressing the relevant requirements of the SEPP 71. The Court concurs that the location of the residue Lot (70) for future conservation, will facilitate wildlife corridors, and together with the VPA and conditions of consent addresses the requirements of cl 8. 15. The proposed drainage Lot (71) seeks to manage stormwater flow across the site, and is permissible with consent, pursuant to cl 111A of the SEPP Infrastructure. The proposed drainage lot is shown on amended plans relied on by the DA and is considered in the conditions of consent. Further to this, pursuant to addressing the requirements of cl 45(2), Ausgrid were notified and provided conditions for consent relating to the adjoining substation and overheard electricity powerlines. 16. The applicant relies on a Detailed Site Investigation for Contamination Report prepared by Douglas Partners, dated February 2019 to assess suitability of the land for the proposed purpose and to satisfy cl 7 of SEPP 55. The parties agree, and the Court concurs that the requirements of SEPP 55 are addressed. 17. Pursuant to cl 2.3 of the WLEP, the site is located partially within an R2 Low Density Residential zone (western portion) and an E2 Environmental Conservation zone (eastern portion). The proposed subdivision for residential lots, a drainage lot and the (open space, APZ) residue lot relates specifically to land within the R2 zone, which is permissible with consent, pursuant to cll 2.3 and 2.6. The proposed residue (future conservation) lot on future Lot 70 is wholly contained within the E2 zone, which is permissible with consent, pursuant to cl 2.3 of the WLEP. The relevant zone objectives, as established in cl 2.3 of the WLEP are satisfied. 18. The proposed residential lot sizes are consistent with the minimum lot size requirement of 450 m2, established for the R2 zone, pursuant to cl 4.1 of the WLEP. The proposed residual (conservation) Lot (70) within the E2 zone, is 3.8 Ha, less than the required 40 Ha, as established in cl 4.1. However, this residue lot wholly encompasses the E2 zone on the site and satisfies the exception to the minimum lot size requirement, pursuant to cl 4.1A. 19. The site is mapped as being underlain by Class 3 and 4 Acid Sulphate Soils (ASS), in ASS_007 of the WLEP, therefore the application is subject to consideration of cl 7.1. The proposed development does not seek to excavate below 1m depth in the 'Class 3' soils or 2m depth in 'Class 4' soils. The DA also relies on an ASS Management Plan. The parties agree and the Court concurs, that the objectives of cl 7.1 are satisfied because the development does not disturb, expose or drain acid sulphate soils and cause environmental damage. 20. The site is subjected to significant areal flooding, particularly in the eastern portion of the site in a flood event with a 1:100 average recurrent interval (ARI), and across the entire site in events above a 1:200-year ARI and including a probable maximum flood (PMF). The central and western portions of the site are mapped as being below the flood planning level (FPL) as defined in the WLEP, and described in the applicant's flood modelling. The FPL mapped across the site is established at the 1:100-year ARI plus 0.5m freeboard. The land is mapped as flood prone consistent within the NSW Floodplain Manual (FPM) 2005. 21. On 14 July 2021, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (hereafter Order 2021), sought to amend an environmental planning instrument, which had the effect of amending the WLEP by inserting a new cl 5.21 (below). 5.21 Flood planning (1) The objectives of this clause are as follows— (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood. (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development— (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters— (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. (4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause. (5) In this clause— Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021. flood planning area has the same meaning as it has in the Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005. 1. Consequently, the WLEP also repealed cl 7.2 (flood planning). 2. However, in submission to the Court, the parties agree that the DA is saved from consideration of the new provision, cl 5.21 in the WLEP, by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006, below: 8 Application of amending orders (1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order. (2) (Repealed) (3) In this clause— amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order. 1. Further to this, the parties agree that Order 2021 or any other legal instrument, does not require the consideration of the now repealed cl 7.2 of the WLEP, because it was not identified in Order 2021. The parties submit that cl 1.8A of the WLEP does not 'save' cl 7.2 for the consideration of the DA, based on the decision of McColl JA, Basten JA and Payne JA in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189. 2. I adopt the agreed position of the parties in their (written and oral) submission, which is the basis of their agreement. I also reflect that based on the evidence before me, I would be satisfied that both the new cl 5.21 and the repealed cl 7.2 of the WLEP are sufficiently addressed by the proposed development to grant consent. I explain below my understanding that the proposed development addresses flood planning requirements and the concerns of residents. 3. The now repealed cl 7.2 of the WLEP is provided below: 7.2 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) is not likely to 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) is not likely to 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 Plan. 1. As described in the amended flood impact assessment report and the amended plans, the proposed residential lots are to be filled to a level above the 1:100-year and 1:200-year flood events. Parts of the residential lots will be covered by floodwaters in a PMF event. Therefore, I considered that the proposed development will not have an unreasonable detrimental impact or risk to future site residents. 2. The application, as amended, specifically seeks to construct a series of culverts to direct extreme event floodwaters away from neighbouring residential properties towards the existing floodway in the east of the site. It addresses offsite impacts to (western) neighbouring residents by reliance on culverts traversing in an east-west direction across residential lots, draining towards future Lots 70 and 71. The detail of the proposed culverts is addressed by a deferred commencement condition agreed by the parties, although the effect of the culverts has been considered in the applicants flood modelling. The flood modelling has also considered cumulative impacts resulting from surrounding developments. As shown in the applicant's flood modelling, the effect of the culverts is to draw floodwaters away from properties located north-west of the filled area, and reduces any change in the flood hazard/behaviour to a water level afflux generally less than 0.5m in areas already affected by flooding in these extreme events. No existing habitable floor in adjoining properties are predicted to be flooded as a result of the proposed development. The impact to adjoining properties is therefore not considered significant or to cause unacceptable risk to life, including during an evacuation. 3. With regards to the consideration of the controls of the WDCP, those relating to flood management and Chittaway Point, are described in Chapters 3.3 and 6.24, respectively. Chapter 4, relating to subdivision, is also relevant for consideration. The DA was notified to residents, which the Council explains was done consistent with the requirements described in Chapter 1.2 of the WDCP. The resident submissions were considered by the parties, prior to reaching the agreement and their issues as raised are resolved to the parties' satisfaction. 4. The Court accepts that the site is located in a 'Precinct 2' flood area, according to Chapter 3.3 of the WDCP. Therefore, the proposed development must demonstrate through a performance-based assessment that the site is compatible with the flooding characteristics of the site. 5. The parties are satisfied that with the adoption of an appropriate engineering solution, being the culverts to divert extreme event floodwaters away from (north-western) adjoining properties and the site, there is unlikely to be significant adverse impact to flood behaviour from flood affectation. In addition, the proposed development is unlikely to result in unsustainable social and economic costs to the community from flooding. The risk to human life and damage to property is minimised. The development as proposed is therefore compatible with the identified flooding potential and hazard, and there is no adverse impact to adjoining properties. The Court accepts the flood modelling results and suggested level of impacts. 6. As explained by the parties, the relevant requirements of the WDCP are addressed by the amended DA and conditions of consent, indicating any offsite flood impact will not be significant. Based on the evidence provided, the Court finds no inconsistency with the assessment made by the parties with regards to the requirements of the WDCP. 7. The Council has undertaken the relevant merit assessment and is satisfied to make the agreement. The amended plans that relate to the proposed development have been considered in the context of the site. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the contentions raised by Council and issues raised by objectors that relate to the controls as specified in the WDCP are resolved to the satisfaction of the parties. 8. The proposed development has been considered and has had regard to the existing features of the site and surrounding development, and is consistent with the characteristics of the area and zoning of the site. 9. The proposed development is considered compatible with the flood hazard of the site and surrounding area, and minimises the risk to life and property, without causing adverse impact to flood behaviour. Therefore, the Court considers that the proposed development satisfies the relevant requirements of the WLEP and WDCP. 10. Based on the evidence before the Court, I have considered and am satisfied that the proposed development satisfactorily addresses s 4.15 of the EPA Act. With regards to s 4.15(1), I have assessed that the likely impacts of the proposed development are acceptable, the site is suitable, all submissions have been considered and the proposed development is in the public interest. Further to this, s 4.15(3A) is satisfied by the flexible approach adopted to address the issues relating to flooding, specifically offsite impacts. 11. Based on the amended plans and supporting documents to the amended DA, I accept that the contentions raised by Council and all jurisdictional requirements are resolved. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 1591/2017 should be granted, as it satisfies the requirements of ss 4.14 and 4.15 of the EPA Act. 12. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the Court Act to dispose of the proceedings in accordance with the parties' decision. 13. The Court notes that: 1. Central Coast Council, as the relevant consent authority has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application (DA/1591/2017) with the amended plans filed with the Court on 20 July 2021, in Annexure A and 27 July 2021 for the Biodiversity Development Assessment Report. 1. The Court orders: 1. The Applicant is to pay the Council's costs thrown away as a result of the reliance on the Concept Flood Culvert System drawing DA-01 prepared by Martens & Associates, Issue A, dated 16 July 2021 in the amount of $1,500 within 28 days. 2. The appeal is upheld. 3. Development Application No. DA/1591/2017 seeking consent for a 72 lot subdivision (comprising 69 residential lots, 2 residue lots and 1 detention basin lot) and the creation and dedication of a park, at Lots 10 & 11 in Deposited Plan 1177776 and Lot 31 in Deposited Plan 23810 otherwise described as 10 Oscar Drive & 51 Geoffrey Road, Chittaway Point NSW 2261, is approved subject to the conditions in Annexure 'A' to this agreement. ………………………… Sarah Bish Commissioner of the Court Annexure A (392324, pdf) Amended Plans (8761815, pdf) Culvert Plan (571792, 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: 02 August 2021