> Land and Environment Court of New South Wales CITATION : Kahler v Tamworth City Council (No 1) [2003] NSWLEC 376 APPLICANTS L & J Kahler PARTIES : RESPONDENT Tamworth City Council . FILE NUMBER(S) : 10127 of 2003 CORAM: Moore C Development Application :- KEY ISSUES: Flood liable land Safety of development . Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Tamworth Local Environmental Plan 1996 . Briginshaw v Briginshaw (1938) 60 CLR 336; CASES CITED: Weal v Bathurst City Council [2000] 111 LGERA 181; . DATES OF HEARING: 30 June, 1 and 7 July 2003 EX TEMPORE JUDGMENT DATE : 07/07/2003 APPLICANT Ms M-L Taylor, solicitor Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr W O'Rourke, solicitor Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10127 of 2003 Moore C 7 July 2003 L & J Kahler Applicant v Tamworth City council Respondent Judgment 1 The matter before the Court is an appeal against the refusal by Tamworth City Council of development application 475/02 which is an application for a change of use of premises known colloquially as 11 Bridge Street Tamworth and comprising all or part of three separate parcels of land. 2 The application was originally assessed by the council and refused. Following an approach by the applicant's town planning consultant, Professor John Toon, outside the time provided for in Section 82A of the Environmental Planning and Assessment Act 1979 ("the Act") for review of the decision, the council agreed to undertake an informal review process; did so and again refused the application. 3 The land is zoned 1(c) Flood liable in the Tamworth Local Environmental Plan 1996 ("the LEP") which contains in the development control table a number of restrictions on use of such land. However, it is common ground in this appeal that there are existing use rights attaching to the building on the site. For the purposes of this decision, I note that I will refer to all three allotments as "the site" until I come to deal with the issue of the council's proposed condition for consolidation of the site. In the present context it is sufficient to say that the portion of the site that is closest to Bridge Street has been used for industrial purposes for very many years, having been the Great Northern Laundry for some sixty or so years and subsequently being used for retail purposes as an outlet for tools knows as Trader Lou's and then subsequently is a temporary campaign office for the then Federal Member for New England. 4 The hearing has proceeded on the basis of extensive evidence from Mr Benning and Doctor Robinson on the flood affectation of the land which is one of the critical points requiring the Court's consideration in this appeal. Despite the strength of contest between them on a number of issues, there is, for the purposes of my consideration this afternoon, substantial agreement between them on matters that I consider that are critical to the determination of this appeal. 5 I note that, in terms of the decision that I am giving today, I am proceeding on the basis that I am giving a determination on the initial agreed position between the experts' evidence, that is, that the water would be of the order of one metre deep on the site during a one in one hundred year flood event and that such water would be flowing at no greater speed than one metre per second during such event. 6 It was agreed by the parties (after Doctor Robinson did a revision of his initial calculations) that I should proceed to deal with the matter on that basis. Only if I concluded that, if those figures were accurate, the development would be unacceptable but that if some lesser figure were the correct number it might be acceptable, would I adjourn to enable the applicant and the council to consider those issues further. I am satisfied that I am able to deal with the matter on the basis of the hypothetically agreed figures for the purposes of this appeal. 7 The critical issue, in the first instance, relating to flooding arises from the objectives of the zone in the development control table and how the land should be classified, both in terms of the definitions in Development Control Plan No 18 Interim Flood Plain Management Policy ("DCP 18") and the definitions contained in the Flood Plain Management Manual of January 2001. It was, as I understood it, common ground between the parties that the January 2001 manual may not be in effect but that the difference between it and the previous manual for the purposes of this case is negligible and I should only have regard to the 2001 manual. 8 The manual contains a number of definitions starting from a definition of a Flood Plain which includes areas of land which are subject to inundation by floods up to and including the probably maximum flood. Within that area of flood plain there then appear to be three sub-categories of land, the first is Flood Fringe Area; the second is a Flood Storage Area and the third is a Floodway Area. As I understood the evidence of both Mr Benning and Doctor Robinson, they treat those three classifications as being an exhaustive hierarchy of areas with those subjected to the least exposure being areas in the Flood Fringe and those that are subject to the maximum exposure of the flood being in Floodway Areas. The contest in these proceedings is whether or not the site is in a Floodway or not. 9 The manual contains in its definition of Floodway Area the following: Floodway being those areas of the Flood Plain where a significant discharge of water occurs during floods. [There is no contest between the parties that that is an accurate description of the site. It then continues:] They are often aligned with naturally defined channels. 10 Although the path of flooding to the side of the site away from the main channel of the Peel River would not be defined entirely as a naturally defined channel, I am satisfied that that area together with the flooding which crosses the highway between the site and the Peel River bridge would constitute, generally speaking, naturally defined channels. 11 However, there then follows a sentence which poses to my mind two significants tests as to whether an area is a Floodway or not – those tests being in the disjunctive and therefore being two separate questions to be asked and answered. 12 One of those tests and only one of those tests is contained, word for word, in its initial portion, in the definition of Floodway on page 3 of DCP 18 and that is this: Floodways are areas that even if only partially blocked would cause a significant re-distribution of flood flow. 13 The question I ask myself is, "Is that an appropriate description of the site?" It is the evidence contained in the extracts from the PPK Rust Report; the evidence given by Doctor Robinson and the evidence given by Mr Benning that the one in one hundred year flood event would not cause, by the structure that is presently erected on the site, a significant re-distribution of flood flow. Indeed in response to a question asked by me, Mr Benning agreed that, if all of the buildings in the developed area of this portion of the Flood Plain were removed, such removal would not cause a significant re-distribution of the flood flow. This answer was given on the assumption that the Pacific Highway remained at its present location and at its present level – there being no evidence before the Court of any intention to alter or otherwise re-arrange the highway at that point. 14 The second test from the definition of a Floodway area would read: Floodways are areas that even if only partially blocked would cause a significant increase in flood levels. 15 It is similarly the evidence of Doctor Robinson and Mr Benning that the present structure on the site does not cause any significant increase in flood levels. Similarly, in response to a question that was put me, Mr Benning agreed that, even if all the structures in that area of the Floodway were removed, there would be no significant alternation resulting in diminution or otherwise of the flood levels. 16 I am, therefore, satisfied that, however it might be appropriate to characterise the land which is the relevant portion of the site, it is not a Floodway within the meaning of the definitions contained in either DCP 18 or in the Flood Plain Management Manual. 17 I am somewhat troubled by the fact that it does not satisfy the definition of either a Flood Storage Area or a Flood Fringe Area but that may reflect merely an inadequacy in the definitions contained in the manual. 18 For the purposes of the present proceedings, the issues of hazard exposure and the like are ones which primarily arise from the question which I am required to answer as to whether the site is in a Floodway or not. I determine as a consequence of those two tests that I have extracted above and the evidence given with respect to them that the area does not fall within a Floodway. 19 Having made that determination, I then turn to the issues contained arising from the objectives of the development control table. The first of those in the general objectives (that are relevant) relate to whether they are high hazard areas or not. It is my understanding from the reading of the determination of Hazard Categories on p G3 and the diagrams contained thereon, at the height and water velocity that is defined in figure G2 (which is a provisional one), that, prima facie, the present site is high hazard. However, I note the caution contained in the manual that it is appropriately to be regarded as a very broad brush rather than as a matter for application to specific development sites or developments. 20 There are a number of tests that arise out of the objectives that are contained in cl 1(1) of the development control table for the 1(c) Flood liable zone. In cl 1(1)(a), it is appropriate to indicate that the objectives of the zone, I – having identified this area as being within the high hazard area – am required need to have regard to the issue of the scope of the potential damage to the building on the site and any possible adverse effect of the flooding which might endanger human life. 21 I am satisfied that there is no issue of flow of flood waters involved and I am satisfied that, with respect to cl 1(1)(b), there is no likelihood of any adverse effect on any environmental value of the land contained in the site. 22 Clause 1(2) contains a number of specific objectives for the zone. Cl 1(2)(a) deals with the reduction of the risk to life and potential damage to the property and to the environment and localities. I am satisfied with respect to the third of these elements that there is no risk to the environment in the locality. I will return to the issues of the risk to life and potential damage to the property later in this judgment. They, in my view, apply only to the subject property and not any likely damage to any other property. I will discuss them, when I deal with the issue of matters of the conditions which are in contention which I consider it to be fundamental to this appeal. 23 The objectives then provide in cl 1(2)(b) that development can be permitted for only certain purposes where it can be demonstrated that a number of tests are satisfied. The first test in cl 1(2)(b)(i) is in two parts. The first is that the development would not adversely affect flood processes and I have indicated that I am satisfied based on the agreement between Mr Benning and Doctor Robinson on this point, that that test would be satisfied. 24 The adverse effect on the development itself is a matter to which I will return later. 25 Clause 1(2)(b)(ii) requires that the development will not destroy, damage or compromise ecological processes. There is common ground between the parties that that does not arise in these proceedings nor could it be said from the view that a flood would damage the scenic amenity or landscape quality, recreational opportunities or heritage significance of the riverine environment contained within the site because those could be described as not high. 26 The final element of cl 1(2)(b)(ii) is that the development would not destroy, damage or compromise the hydraulic functions of the flood. As I have indicated, I am satisfied in that regard that that would not be the case. 27 I therefore come to the conclusion that, subject to issues of flood proofing (as it was generally referred to in the proceedings), there is no basis upon which the appeal could be dismissed arising out of the objectives of the zone. 28 It is noted that the change of use constitutes use as a vehicle repair station which use is prohibited. As I indicated earlier, the parties are in agreement that there are existing use rights and that it is against those existing use rights that the objectives of the zone require to be tested. 29 The second area that was in dispute was whether, for planning purposes, the application constituted an intensification of use. 30 Of the three prior uses to which evidence has been directed, the first relates to the use as a laundry for a lengthy period of time. The evidence that was given by the son of the previous proprietor of the laundry showed, amongst other things, photographic evidence of use of the laundry by a minimum of twelve staff at one time. His uncontradicted evidence that there was significantly higher employment level at the laundry when it was operating in full scale as a commercial laundry would lead me to the conclusion that, provided the subsequent two uses that have been identified did not constitute a significant reduction in the intensity of use, the present proposed use is consistent with the intensity of use that would have applied during the period that the premises were being operated as a commercial laundry. 31 The first of the two intervening occupations that are put to me as evidence of lessening of intensification of use are the occupation of the premises for use as a retail tool outlet trading as Trader Lou's. The evidence with respect to this activity was scanty, to say the least. There was a factual observation from the council's planning witness, Mr Lewis, as to his observations in both a professional and a personal capacity - his professional observations having been made during his driving to and from his home to his place of employment at the council's premises and during the course of travelling past the premises which are located on the Pacific Highway during the course of his council duties. These observations were coupled with his visits, on a number of occasions, of some fifteen minutes in length when he had been an actual or potential purchaser from the business. His evidence indicated that there was a low flow of customers with some three, four or five cars parked in the car park which forms part of the site and some three to five family groups or individuals looking at the goods on display in the premises. 32 Professor Toon took that small fifteen minute interval in the life of Trader Lou's and extrapolated it to arrive at a figure of a number of vehicles per weekend and a number of potential customers per week. Mr O'Rourke said that it would be what amounted to taking a longbow to Professor Toon's evidence to accept that extrapolation as being a valid interpretation of the intensity of use of Trader Lou's business. With respect to Mr O'Rourke, I agree with him entirely but observe that reasoning process is a two-edged sword. To take Mr Lewis' observations and extrapolate it as some sort of evidence of a low intensity of use based on that small sample is also, in my view – without having detailed evidence from the records or otherwise of Trader Lou's – a similarly risky endeavour upon which the Court might embark. In that regard, I consider that I am not satisfied that the activities of Trader Lou's constitute a lessening of the intensification of use. I am satisfied that if I were to reject the application on that basis, the council would need to have established, on a much sounder evidentiary basis, that this was the position. 33 The next issue of intensification relates to the use of an area on the site as a campaign office for the most recent Federal election by the then Member for New England, Mr S St Clair. I record that I deal with this issue entirely on the evidence that is before me in these proceedings. The first matter that is of relevance in this regard is the development application that was lodged with Tamworth City Council, that being Development Application 228/02. I note that it simply provided for use of portion of the present site and not for the totality of it. It seems to be a matter that was not considered as part of the approval process, understandably under the circumstances as it appears to have permitted what amounted to a post facto approval of a temporary use that had already commenced at the time of the application. 34 I am satisfied that on the basis of the limited scope of the application; the shortness of the time period that was involved and the sparsity of consideration that was necessary (and obviously took place), under the circumstances that it does not provide an appropriate test against which intensification of use should be made. I so concluded particularly as the planning conditions that were imposed as part of the approval of that application do not deal with levels of activity and the plans to which Mr Lewis was taken, that accompanied that application, did not adequately identify the site and made no reference to the parking area and such other issues which are of some importance in this case. 35 I have therefore determined that there has been no sufficient evidence before me to demonstrate any prior lack of intensity of use that would cause me to reject the application. 36 Before dealing with the issue which I consider to be determinative, being the issue of flood impact, there are two matters of conditions that I should deal with. The first is the issue of the proposal of the council contained in Condition 2.2, the second portion thereof which would require the existing vehicle crossing in Bridge Street serving the site to be removed and the kerb and guttering reinstated. The applicant made a number of submissions concerning this which relate to the obstruction of a right of way which benefits portion of the site, one parcel of the site, to give it a right of passageway to Bridge Street, that being if access is denied over the adjacent property, portion of if not the totality of the lawful access to that allotment. 37 In this regard I think it appropriate to take note of the fact that the council is in these proceedings in two quite separate capacities. One is as the local consent authority and the other is as the owner of the land over which the right of way has been given. The council has led no evidence and made no submissions concerning the right of way in its capacity as owner of the allotment burdened with that right of way. I thus consider it inappropriate to deal with the issue of removal of the kerbing and guttering on any basis associated with the council being the proprietor of that land. 38 The evidence from Mr Lewis concerning traffic movements (particularly on Saturday mornings) turning left into Carter Lane and the possibility of conflict for those so turning with a driver advertently or inadvertently turning into the site in such circumstances (or such conflicts at other times of the day) is sufficient to satisfy me that the proposal of the Council in Condition 2.2 would be appropriate and should be required. 39 The second area of contested condition (before I turn to Condition 4.2) is that contained in Condition 4.3 which proposes that the applicant be required to consolidate all three lots into a single allotment. The evidence and the plans that are in evidence show that the operational portion of the allotments is confined to the two smaller allotments adjacent to the intersection of Carter Lane and Bridge Street together with a much smaller portion of the third allotment. The third allotment is to the rear and is of some thirteen acres in size. 40 The Council does not propose that the two smaller allotments be consolidated with that portion of the larger allotment that would form part of the operational site. The Council seeks to have all three allotments consolidated including the area of some thirteen acres which includes the presently substantially unused and, from the view, significantly weed-infested, portion of the rear of the allotment. 41 It is this issue in fact that I have had the greatest difficulty in determining. I am satisfied, however, that to require consolidation of the totality of the area (as opposed to a more restricted consolidation which might have comprised the two smaller allotments plus a boundary adjustment off the larger rear allotment) would be contrary to the provisions of Section 5(a)(ii) of the Act in that it would be contrary to the co-ordination of orderly and economic use and development of land. 42 I have come to that conclusion as the development control table in the LEP does contain at least one potentially functional activity which is permitted without development consent on the land – that is agriculture. It would also potentially permit a number of other activities that are permissible with development consent – one of which (albeit in a half joking sense) Mr Lewis adverted to in evidence and that is a golf driving range – recreational activities not being prohibited activities pursuant to clause 4 of the development control table in this regard. 43 I now turn to what I would describe as the real issues in the case. I raised, during the course of the proceedings in Tamworth, my concern that the matters contained in proposed condition 4.2 for a Flood Management Plan. Condition 4.2, as proposed by the Council, envisages that a Flood Management Plan would be dealt with by the Council post facto if the Court were otherwise minded to approve the development. 44 I have come to the conclusion that there are a significant range of issues raised in the course of the proceedings relating to what would need to be dealt with by a Flood Management Plan and a matter of the structure adequacy of the building to make it impossible for me to grant consent in terms of the conditions proposed by the Council. If I were to determine the application on that basis that I would be in breach of the principles laid down by the Court of Appeal in the majority decision in Weal v Bathurst City Council [2000] 111 LGERA 181. 45 I am therefore left with consideration of the issue, as I canvassed with the representatives of the parties, as to whether I should refuse the application outright or whether I should adjourn the matter to enable those issues to be addressed – these issues having largely been raised during the course of the proceedings and not being amenable to having been dealt with prior to the proceedings. 46 The provisions of the development control table require, in cl (1)(1)(a), the identification of works liable to be damaged by flood waters. They require, in cl 1(2)(a), the reduction of potential damage to property. They require, in that regard, in cl 1(2)(a), the reduction of risk to life. I am satisfied that there would be no damage to any other property if the appeal were to be upheld and the development approved. 47 I am not satisfied that the development itself would not be adversely affected nor am I satisfied to what I consider to be the required civil standard, on a Briginshaw v Briginshaw (1938) 60 CLR 336 basis, with respect to the reduction of the risk to life. They are all issues, including the issue of the possibility of a structural engineer's certificate which was canvassed with the parties during the hearing, that are capable of being dealt with by a Flood Management Plan. 48 I have come to the conclusion, on balance, that I ought not deny the applicant the opportunity to address these issues but I am satisfied that it remains a significant obstacle to approval of the development which I am otherwise satisfied ought to be approved. 49 Having identified that conclusion to which I have come I should therefore indicate to the parties that I am satisfied that for me to accord with the principles of the Court of Appeal in Weal, I would be required to be appropriately informed of and satisfied with the Flood Management Plan and the issues of integrity to the building and that that would have to be to the Briginshaw degree of comfortable satisfaction – in particular with respect to the risk to life . This requires a consideration, not merely of the risk to the lives of the occupants of the building, but risk to the lives of those who might be called upon to evacuate people from the building if that became necessary. 50 I am mindful that, in the course of these hearings, the Tamworth City Parry Shire Local Flood Plan has been put in evidence. It shows warning periods, rates of river height rise and the like which were, on the "one metre plus one metre" assumption which I have proceeded to deal with the matter, not significantly in contest and they demonstrate that it ought be possible in an appropriately crafted Flood Management Plan to deal with those issues in a satisfactory fashion. However, in accordance principles derived from Weal, I do not consider it appropriate to issue a consent subject to conditions unless I am satisfied on those issues. MATTER ADJOURNED TO THE REGISTRAR'S CALLOVER ON WEDNESDAY 9 JULY FOR FIXING OF A FURTHER TWO HEARING DAYS Tim Moore Commissioner of the Court 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.