Lensing v Snowy Valley Council [2022] NSWLEC 1486

Land and Environment Court New South Wales

Medium Neutral Citation: Lensing v Snowy Valley Council [2022] NSWLEC 1486 Hearing dates: 4 and 5 August 2022 Date of orders: 13 September 2022 Decision date: 13 September 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development consent for Development Application 2020/0228 seeking construction of a two-storey dwelling and shed on Lot 12 DP 125902, also known as 12 Bombowlee Avenue, Bombowlee, is refused. (3) All exhibits are returned. Catchwords: DEVELOPMENT APPLICATION – dwelling house construction - flooding impact – proximity to riparian land with biodiversity values mapped – reliance on evacuation plan Legislation Cited: Biodiversity Conservation Act 2016 Biodiversity Conservation Regulation 2017, cl 7.3 Environmental Planning and Assessment Act 1979, ss 4.14, 4.158.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 Tumut Local Environmental Plan 2012, cll 2.3, 4.2B, 5.10, 5.21, 6.1, 6.4, 6.5 Cases Cited: CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97 Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Texts Cited: Australian Institute for Disaster Resilience, Australian Disaster Resilience Handbook 7 - Managing the floodplain: A Guide to Best Practice in Flood Risk Management in Australia (2017) Department of Infrastructure, Planning and Natural Resources, NSW Flood Plain Development Manual (2005) NSW Government, 2022 NSW Flood Enquiry (2022) NSW State Emergency Services, Tumut Shire Local Flood Plan (Volume 1 2013) Snowy Valley Development Control Plan 2019 Category: Principal judgment Parties: Chad Lensing (First Applicant) Elaine Lensing (Second Applicant) Snowy Valley Council (Respondent) Representation: Counsel: J Reid (Applicant) A Seton (Solicitor) (Respondent)