Ward v Port Stephens Council [2023] NSWLEC 1423

Land and Environment Court New South Wales

Medium Neutral Citation: Ward v Port Stephens Council [2023] NSWLEC 1423 Hearing dates: 16-17 February 2022; 11 March 2022; 13 April 2022 Date of orders: 04 August 2023 Decision date: 04 August 2023 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) Within 14 days of the date of these orders, the parties are to confer and if possible agree on the conditions of development consent which are to reflect this judgment, and file the agreed conditions. (2) If the parties are not able to agree on the conditions of consent, within 14 days of the date of these orders, each party is to file with the Court and serve on the other party the party's version of the conditions of consent, and provide to the Court a Word copy of each party's version of the conditions of consent. Catchwords: DEVELOPMENT APPLICATION – Council delays assessment of development application – refusal – s34AA conciliation conference – no agreement –proposed construction of single storey 4 bedroom dwelling – proposed development is permissible with consent and subject to conditions under RU1 zoning – land is flood prone – agricultural use of land – flood mounds – Flood Certificate applicable when development application made was not current – second Flood Certificate issued shortly before hearing –change to characterisation of land to High Hazard Floodway from High Hazard Flood Storage – amendment to application to include flood refuge in attic of proposed dwelling above Probable Maximum Flood (PMF) level – Port Stephens Local Environmental Plan 2013 cl 7.3 repealed without savings provision – cl 5.21 does not apply to application – Port Stephens Development Control Plan (PSDCP) provisions apply – PSDCP to be applied with flexibility – performance based conditions can be applied – risk management – risk minimisation – access road has low point which becomes unpassable by vehicles when flood depth exceeds about 2.5m AHD – consequences for evacuation – Flood Emergency Response Plan (FERP) – occupants of proposed dwelling will be required to follow FERP – FERP requires that occupants evacuate when flood warning issued – is sufficient warning given – role of State Emergency Service (SES) – Evacuation Orders could be made – flash flooding – flooding from Hunter River – flood events immediately following hearing – conditions Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979, ss 4.14, 4.15 Land and Environment Court Act 1979, s 34AA Local Government Act 1993, s 68 Port Stephens Local Environmental Plan 2013, cll 2.1, 4.2B, 4.3, 5.10, 7.1, 7.2, 7.3, 7.6; Pt 7 Roads Act 1993, s 138 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 State Emergency Service Act 1989, ss 22, 22A State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 (repealed) State Environmental Planning Policy (Koala Habitat Protection) 2019 (repealed) State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4 State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1 State Environmental Planning Policy No 55—Remediation of Land (repealed) Cases Cited: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Gardiner v Central Coast Council [2022] NSWLEC 1007 OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Texts Cited: Department of Infrastructure, Planning and Natural Resources, Floodplain Development Manual: the management of flood liable land (2005) Planning for Bush Fire Protection 2019 Port Stephens Community Participation Plan Port Stephens Development Control Plan 2014 Category: Principal judgment Parties: Neil Andrew Ward (First Applicant) Bronwyn Patricia Ward (Second Applicant) Port Stephens Council (Respondent) Representation: Counsel: M Staunton (Applicants) H Irish (Respondent)