Land and Environment Court of New South Wales CITATION : Druitts Developments Pty Ltd v Gosford City Council (No 2) [2001] NSWLEC 98 APPLICANT: Druitts Developments Pty Ltd PARTIES : RESPONDENT: Gosford City Council FILE NUMBER(S) : 10075 of 2001 CORAM: Bignold J KEY ISSUES: Development Application :- relying upon SEPP No 5. - Development site held to be "environmentally sensitive land"—SEPP No 5 does not apply with result that development proposal not permissible development. LEGISLATION CITED: State Environmental Planning Policy No 5 CASES CITED: DATES OF HEARING: 16 May 2001 DATE OF JUDGMENT: 05/17/2001 APPLICANT: Mr J Webster, Barrister SOLICITORS Taperell Rutledge LEGAL REPRESENTATIVES: RESPONDENT: Mr A J J Thompson, Barrister SOLICITORS P J Donnellan & Co JUDGMENT: IN THE LAND AND Matter No. 10075 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 17 May 2001 DRUITTS DEVELOPMENTS PTY LTD Applicant v GOSFORD CITY COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council's deemed refusal of the Applicant's development application to develop land known as Nos 5 and 7 Ficus Avenue, Avoca (the development site) pursuant to the enabling provisions of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP No 5). The proposed development involves a complex accommodating eight residential units. 2. Following the commencement of the proceedings the Council has exercised its statutory powers under the EP&A Act, s 82(2) and has determined the development application by refusing consent for a number of stated reasons. 3. Upon the commencement of the hearing of the appeal on 15 May 2001, the parties requested that I determine three preliminary questions which had been raised by the Council. 4. In my reasons for judgment delivered yesterday, I answered the three questions. 5. My answer to the first question was an affirmative answer to what I had re-formulated as a preliminary question to the first question raised by the Council. 6. The question as originally formulated by the Council had asked whether the development site was included in Schedule 1 to SEPP No 5. 7. The re-formulated question which was necessarily preliminary to that question and which I answered affirmatively was as follows: Whether the express objectives in respect of Zone No 2(f) designated by the Gosford Planning Ordinance (which operates as a deemed environmental planning instrument) declaring land within the zone to be subject to hazard from coastal erosion or storms (or both) are a potential source for the identification of environmentally sensitive land falling within the ambit of Schedule 1 to State Environmental Planning Policy No 5 8. Following the announcement of my determination of that reformulated question, the parties agreed to proceed at once to present their respective cases (including their evidence) on the original preliminary question formulated by the Council in order to obtain a determination of that question. In so proceeding, the parties informed the Court that if the Court were to determine the outstanding preliminary question in favour of the Council that would produce the legal result that since the proposed development could not invoke the enabling provisions of SEPP No 5, the proposal was absolutely prohibited development in terms of the Gosford Planning Scheme Ordinance ("the LEP", which operates as a deemed environmental planning instrument) and in consequence, the appeal must be dismissed. In this respect, the Applicant informed the Court that it would not wish the Court to proceed to hear the appeal on the basis of the planning merits. 9. Accordingly, and consistent with my determination of the re-formulated preliminary question, I now proceed to determine the outstanding preliminary question which is as follows— Is the development site land that is included in Schedule 1 to SEPP No 5? 10. According to my determination of the re-formulated preliminary question, the only issue to be determined is whether it is established that the development site has been identified by another document or some other extrinsic evidence as being "subject to hazard from coastal erosion or storms (or both)" as postulated in the express objective for Zone No 2(f) under the LEP. B. THE RELEVANT EVIDENCE 11. The Council tendered the following official documents which the Council has caused to be prepared by consultants and which the Council has adopted: (i.) the Entrance Dynamics of Wamberal, Terrigal Avoca & Cockrone Lagoons (November 1994): Exhibit 14 (ii.) Coastal Management Study and Management Plan —Gosford City Open Coast Beaches (August 1995): Exhibit 12 (iii.) Avoca Lagoon Flood Study (June 1999): Exhibit 8 (iv.) Avoca Lagoon Floodplain Management Exhibition Report Study (September 1999): Exhibit 9 (v.) Avoca Lagoon Floodplain Management Plan Exhibition (September 1999): Exhibit 10 12. In addition, it called evidence from Mr Tysoe, the Council's Manager—Flooding and Drainage and Mr Alsop, a former long serving servant of the Council. In addition to their respective reports (Exhibits 5 and 6), they gave oral testimony. Each is a qualified civil engineer. 13. The Applicant adduced evidence (oral testimony and a written report Exhibit C) from Mr Tooker, a consulting engineer specialising in coastal engineering. 14. Each of the five official documents tendered by the Council identifies all properties fronting Ficus Avenue (including the development site) as being susceptible to flooding and in particular to being susceptible to flooding from ocean waves, in times of coastal storms overtopping the natural berm separating Avoca Lagoon from the ocean, and surging across the sections of the Lagoon located nearest the berm and breaking on the immediate foreshores of the Lagoon and running up the foreshore lands. 15. It is to be noted that the development site is located about 80 m west of the beach berm to Avoca Lagoon and the northern boundary of the site abuts the edge of the Lagoon. It Is also to be noted that the levels of the development site range from RL 1.25 at its northern boundary (ie Lagoon frontage) to RL 2.5 at its southern boundary (ie Ficus Avenue frontage). 16. Although a number of the official documents concentrate on the issue of flood plain management of Avoca Lagoon and its environs, all of the documents in evidence acknowledge the contribution to flooding of the foreshore lands made by the impact of ocean waves in times of coastal storms overtopping the beach berm and traversing the lagoon near its mouth (ie the berm) and running up onto the foreshore lands. 17. For example, the Avoca Lagoon Floodplain Management Study (Exhibit 9) includes all of the properties fronting Ficus Avenue within the classification of "high hazard" for the reasons stated in the following extract from p 17 and p 18 of the document— The areas adjacent to the lagoon entrance are susceptible to inundation by ocean waves. There is generally a prolonged establishment period for ocean storms. However, storm intensity and the resultant wave climate can vary more rapidly. The destructive force of the waves is much greater than that of the rising floodwaters in the lagoon. Therefore, due to the uncertainty associated with ocean storms and the potential for greater damage, it is considered that the High Hazard classification should be retained for the lagoon entrance. …. …. The concept of floodwaters, flood storage and flood fringe areas is not normally associated with oceanic inundation. Due to high damage potential within areas susceptible to ocean wave action, it is considered that these areas have similar characteristics to floodways. Therefore, the flood-liable areas adjacent to the lagoon entrance can be considered to be located in a floodway. The proposed flood hazard classification for the lagoon foreshores and upstream floodplain is summarised in Table 3 below and presented in Figure 2.5. TABLE 3 Location Precinct Areas* Hazard Classification Entrance 1, 7 High Hazard - Floodway Lagoon Foreshores 2, 3, 5, 6 Low Hazard - Flood Storage Upstream Floodplain 4 High Hazard - Floodway Notes: * Refer To Figure 2.3 for precinct locations. 18. Figure 2.3 includes all properties fronting Ficus Avenue in Precinct 7 (High Hazard Floodway). 19. In my judgment, these official documents identify, with the requisite degree of certainty, the development site as a particular parcel of land which is "subject to hazard from coastal storms" as postulated in the express Zone objective to Zone No 2(f) created by the LEP. 20. The Applicant has not disputed that the official documents so identify the land. However, it relies upon Mr Tooker's opinions to the effect that the coastal hazard created by ocean waves overtopping the beach berm, surging across the immediate mouth area of Avoca Lagoon and breaking on the Lagoon's foreshores and running up onto the foreshore lands (including the development site) is a "low hazard" rather than a "high hazard" in terms of the quantification of hazards or risks caused by flooding to property and people. 21. However, in large measure, Mr Tooker's opinions, so it seems to me, were founded upon an incorrect reading of official documents that have identified the properties fronting Ficus Avenue as having a "High Hazard" flooding classification. This misreading of the official documents seriously undermines Mr Tooker's opinions. 22. However, in any event, debate upon whether the hazard by virtue of flooding of the development site caused by coastal storms is to be evaluated as "high hazard" or "low hazard", is in my judgment, not to the point. In so concluding, whereas I accept the Applicant's submission that the relevant hazard relevantly identified must be something more than a trifling hazard, I do not accept the further submission that it must be a "significant hazard". The evidence overwhelmingly indicates that the relevantly identified hazard is regarded as a real and serious coastal hazard. This is sufficient for the land to qualify as "environmentally sensitive land" for the purposes of Schedule 1 of SEPP 5. 23. More importantly, it is to be noted that Mr Tooker's opinions essentially accommodate the contents of the official documents relied upon by the Council in the present case, even though he expresses the view that some of the predictions found in the official studies of the extent of flooding of the foreshore lands in the vicinity of the mouth of Avoca Lagoon (whether caused by ocean waves in times of coastal storms or by rainfall in the Lagoon's catchment or a concurrence of both phenomena) were over-stated. Thus, even his qualifying opinions fall very far short of questioning the accuracy, reliability or validity of the identification of the properties fronting Ficus Avenue (including the development site) as being "subject to coastal hazard caused by storm events" as postulated in the express objective to Zone No 2(f) under the LEP. 24. Accordingly, I find nothing in Mr Tooker's evidence which dislodges or undermines the clear effect of the official documents adequately identifying the development site (together with other properties fronting Ficus Avenue) as being subject to the hazard of flooding by virtue of either coastal storm events operating by themselves, or in combination with flood plain flooding otherwise affecting Avoca Lagoon. 25. The issue requiring present adjudication is not the evaluation of Mr Tooker's expert opinion, but whether the evidence has established that the development site has been identified by the official documents adduced in evidence with the sufficient degree of certainty as being subject to coastal hazard by storms. 26. In my opinion, the evidence very clearly identifies the development site as being so affected, and I so hold. It follows that the development is relevantly "environmentally sensitive land" falling within the ambit of Schedule 1 to SEPP No 5. C. CONCLUSIONS AND ORDERS 27. For all the foregoing reasons, I hold that the development site is relevantly environmentally sensitive land which is included in Schedule 1 to SEPP No 5. 28. It follows that SEPP No 5 does not apply to the development site: vide cl 4(2). 29. It further follows that without being able to invoke the enabling provisions of SEPP No 5, the proposed development is absolutely prohibited by the LEP with the inevitable consequence that the appeal must be dismissed. 30. Accordingly, I make the following orders 1. Appeal dismissed. 2. Development consent refused. 3. Exhibits be returned. 4. No order as to costs. 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.