Land and Environment Court New South Wales Medium Neutral Citation: Vetter v Port Stephens Council [2021] NSWLEC 1611 Hearing dates: Conciliation conference held on 5 and 6 October 2021 Date of orders: 19 October 2021 Decision date: 19 October 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) The application for Development Consent No. DA16-2020-302-1 for development of a dual occupancy (one existing) and flood mound at 814 Hinton Road, Osterley being land described as Lot 29 DP 871241, in the terms set out in Annexure A, is approved. Catchwords: DEVELOPMENT APPLICATION – residential subdivision – flooding – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34AA Port Stephens Local Environmental Plan 2013, cll 1.8A, 2.3, 2.6, 4.1, 4.1A, 5.21, 7.1, 7.2 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cl 6 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Water Management Act 2000, s 256 Cases Cited: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Texts Cited: NSW Department of Planning, Infrastructure and Natural Resources, Floodplain Development Manual, (April 2005) Port Stephens Development Control Plan 2014 Category: Principal judgment Parties: Richard Vetter (applicant) Port Stephens Council (Respondent) Representation: Counsel: J Reid (Applicant) H Irish (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2021/173105 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 16-2020-302-1 by Port Stephens Council (hereafter the Council), which seeks construction of a dual occupancy dwelling and an earthen (flood protection) mound on Lot 29 DP 871241, also known as 814 Hilton Road, Osterley (hereafter known as the site). 2. The DA was submitted to Council on 3 June 2020, and after notification, made consistent with relevant planning controls, no submissions in objection were received. 3. The DA was internally assessed. Due to the proximity of the site to the Hunter River, its levees, and floodplain, the DA was also referred to the NSW Department of Planning, Industry and Environment (DPI&E) and NSW Office of Environment and Heritage (OEH). 4. On 13 April 2021, the Council refused the DA on the grounds of incompatibility with the flood hazard of the land 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 34AA of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties, and in consideration of the current Covid-19 restrictions. The conciliation was held by MS Teams. 7. Although the Court has not had the benefit of a site view, it relies on the expert evidence, photographs and documents supporting the DA that visually describe the site. 8. The site is approximately 21.22 hectares (Ha) in area and surrounded by other rural lots, with detached dwellings. The site is adjacent to the Hunter River, which forms the northern boundary. 9. The site is generally vacant of structures, although an existing dwelling is located in the southern portion. The site is covered by extensive grasses, with few isolated stands of trees, consistent with its rural environment. 10. Based on the 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 decision of the parties is to uphold the appeal and grant consent to DA 16-2020-302-1, with conditions. 11. 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 s 4.15 to grant consent to DA 16-2020-302-1, with conditions in Annexure 'A'. 12. The parties identified the jurisdictional prerequisites of particular relevance for the Courts consideration in these proceedings as consistency with the: Water Management Act 2000 (WMA); Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coast); State Environmental Planning Policy (Koala Habitat Protection) 2020 (SEPP Koala); and Port Stephens Local Environmental Plan 2013 (PSLEP). In addition, the relevant requirements of the Port Stephens Development Control Plan 2014 (PSDCP) are considered. 13. The parties agree that the amended design of the (flood protection) mound is located at least 10 m from the toe of the levee, that separates the proposed dwelling from the Hunter River, and together with the conditions of consent, relating to application for the construction of the mound on a floodplain, satisfies the requirements of s 256 of the WMA. 14. The Council agreed for the applicant to amend the plans and documents, that support the amended DA, pursuant to cl 55 of the EPA Reg. 15. The proposed development (specifically future dwelling) is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended, has been sighted, and is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 16. Pursuant to cl 4(1) of the SEPP Koala, the site is identified as core koala habitat. The parties agree that the site is in an area that is mainly cleared, particularly in the rear of the site along the boundary to the waterfront, which is the location of the proposed dwelling and mound. The proposed development does not include the removal of natural vegetation required for koala habitat, and is not considered to exacerbate any impact to the koala habitat or decline in koala population. The parties are satisfied that the proposed development is consistent with core koala habitat, and that the requirements of SEPP Koala as addressed. 17. The site is located within the mapped coastal environment area and the coastal use area, pursuant to cl 6 of the SEPP Coast. The parties agree that the amended design of the mound protects the future residents and property from flood waters, minimises impact to existing vegetation and does not cause an amenity concern. The parties are satisfied that the relevant requirements of the SEPP Coast are addressed. 18. The respondent considers that the site has no known history of contamination, and the proposed development, including conditions of consent satisfies cl 7 of SEPP 55. The parties agree that the requirements of SEPP 55 are addressed. 19. The proposed dual occupancy (dwelling) is permissible, with consent in the RU1 Primary Production zone relevant to the site, pursuant to cll 2.3 and 7.15 of the PSLEP. The relevant zone objectives, as established in cl 2.3 of the PSLEP are satisfied. 20. The site is mapped as being underlain by Class 3 Acid Sulphate Soils (ASS), in the PSLEP, 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. The parties agree that the objectives of cl 7.1 are satisfied because the development does not disturb, expose or drain acid sulphate soils to cause environmental damage. 21. The land is mapped as flood prone, and requires consideration by the PSLEP, PSDCP and NSW Floodplain Manual (FPM) 2005. The northern portion of the site, close to the River, is subjected to significant areal flooding, including in a flood event with a 1:100 average recurrent interval (ARI) and a probable maximum flood (PMF). The applicant's flood modelling considers the flood planning level (FPL), established at the 1:100-year ARI plus 0.5m freeboard, as 6.5m Above Height Datum (AHD), which is adopted to define the minimum habitable floor level. The PMF is assessed at 8.9m AHD. 22. On 14 July 2021, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (hereafter Order 2021), sought to amend an environmental planning instrument relating to flooding, which had the effect of amending the PSLEP by inserting a new cl 5.21 for flood planning. Consequently, pursuant to Schedule 1 of the State Environmental Planning Policy Amendment (Flood Planning) 2021, cl 7.3 of the PSLEP was repealed. 23. 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 applicant explains that Order 2021 or any other legal instrument, does not require the consideration of the now repealed cl 7.3 of the PSLEP, because it was not identified as being 'saved' in either Order 2021 or the State Environmental Planning Policy Amendment (Flood Planning) 2021. 2. The applicant submits that cl 1.8A of the PSLEP does not 'save' cl 7.3 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. 3. The respondent however considers that cl 7.3 of the PSLEP remains for consideration of the proposed development, as a 'legacy development', pursuant to cl 1(3) and Schedule 1 of the State Environmental Planning Policy Amendment (Flood Planning) 2021. 4. I acknowledge the different positions of the parties in their (written and oral) submissions, with regards to the relevant statutory considerations for the proposed development. I also accept, that they agree that both the recently repealed cl 7.3 and newly amended cl 5.21 of the PSLEP, which both relate to flood planning, are capable of being satisfied by the proposed development. This is the basis of their agreement. 5. I confirm that based on the evidence and expert advice before me, I am satisfied that both the new cl 5.21 and (the repealed) cl 7.3 of the PSLEP, as they relate to flood planning, are sufficiently addressed by the proposed development to grant consent. I explain below why I consider the proposed development is capable of addressing the flood planning requirements in contention. 6. The application, as amended, specifically seeks to construct a mound to the level of 8.9m AHD that will support the future dwelling, together with an elevated driveway linking the house to the frontage of the site via an access handle. The mound is specifically for the purpose of providing flood protection. 7. As described in the amended flood impact assessment report and the amended plans, the proposed dwelling is located on the earthen mound, that is to be filled to a level above the PMF flood events. The mound is battered and located more than 10m from the toe of the existing levee bank along the Hunter River. It is agreed that there is minimal impact or hinderance to the existing levee system and floodwaters. 8. The proposed development seeks to elevate the house above the highest flood event (PMF), and also to not exacerbate existing flood conditions on and surrounding the site. the experts agree that shown in the applicant's flood modelling, the effect of the mound does not adversely change the flood hazard/behaviour onsite/offsite, reduces the potential impact to property and shows the habitable floor above predicted flood levels. The experts agree that persons on the site have the opportunity to shelter in place or evacuate with appropriate time in the event of a major flooding. The Court accepts the agreement of the flood experts. and that the requirements of cl 5.21 and 7.2 are satisfied by the proposed development. 9. With regards to the consideration of the controls of the PSDCP, those relating to flood management are described in Chapter B5. Chapter C4, relating to dwellings, is also relevant for consideration. The DA was notified to residents, which the Council explains was done consistent with the requirements of the PSDCP. No submission in objection were received. 10. The Court accepts that the site is flood prone, and deemed by the experts as either High Hazard Flood Storage or Fringe, according to Chapter B5 of the PSDCP. Therefore, the proposed development must demonstrate that the site is compatible with the flooding characteristics of the site. 11. The experts are satisfied that with the adoption of an appropriate engineering solution, being the elevation of the mound containing the future dwelling above the PMF, thereby raising the habitable floor levels above the PMF, there is unlikely to be significant adverse impact to flood behaviour or flood affectation across the site. The mound is also oriented to reduce loss of significant trees. The parties agree that the proposed development is unlikely to result in unsustainable social and economic costs to the community from flooding, as the future residents can shelter in place or evacuate. The experts agree that the flood hazard is assessed correctly at the site of the proposed dwelling, and that the flood impact (thereby risk) to future residents of the dwelling and associated property has been sufficiently mitigated through the design of the mound above the PMF, design of the driveway and emergency flood evacuation plan, required in the conditions of consent. 12. The development as proposed is therefore compatible with the identified flooding potential and hazard, and there is no adverse impact to adjoining properties. 13. Based on the evidence provided and expert advice, the Court agrees that there is no inconsistency with the assessment made by the parties with regards to the requirements of the PSDCP to address flood risk to life or property. The proposed development will not have an unreasonable impact to future site residents. The risk from flooding is sufficiently mitigated to address harm to property and life. 14. 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 PSLEP and PSDCP. 15. 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 or the waterway as a result of the proposed development. Based on the amended plans and conditions of consent, the contentions raised by Council are resolved to the satisfaction of the parties. 16. 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 understand that the likely impacts of the proposed development are acceptable, the site is suitable 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 on the site. 17. 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 16-2020-302-1 should be granted, as it satisfies the requirements of s 4.15 of the EPA Act. 18. 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. 19. The Court notes that: 1. That the Port Stephens Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for development consent (DA16-2020-302-1). 2. That the Port Stephens Council has uploaded the amended application on the NSW planning portal on 12 October 2021. 3. That the applicant subsequently filed the amended application with the Court before 20 October 2021. 1. The Court orders: 1. The appeal is upheld. 2. The application for Development Consent No. DA16-2020-302-1 for development of a dual occupancy (one existing) and flood mound at 814 Hinton Road, Osterley being land described as Lot 29 DP 871241, in the terms set out in Annexure A, is approved. ………………………… Sarah Bish Commissioner of the Court Annexure A (254579, 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: 19 October 2021