> Land and Environment Court of New South Wales CITATION : Kahler v Tamworth City Council (No 2) [2003] NSWLEC 377 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 . LEGISLATION CITED: Environmental Planning and Assessment Act 1979 . Weal v Bathurst City Council [2000] 111 LGERA 181; CASES CITED: Sayer v Hastings Council (matter No 10320 of 1997); . DATES OF HEARING: 13 November 2003 EX TEMPORE JUDGMENT DATE : 11/13/2003 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 13 November 2003 L & J Kahler Applicant v Tamworth City Council Respondent Judgment 1 On 7 July, following a hearing and a view in Tamworth and on 30 June and 1 July, I heard further submissions in Sydney and gave an ex tempore decision concerning a range of issues in these proceedings. These essentially dealt with the question of whether it could possibly be appropriate for the proposed use to be undertaken at the site which is the subject of these proceedings. In light of the preliminary conclusions to which I had come, the matter was adjourned to enable further consideration of a number of matters including a condition proposed by the Council at 4.2 of the Draft Without Prejudice Conditions relating to a proposal for a Flood Management Plan. I undertook this course as I had indicated to the parties that I considered that that issue was so fundamental to the consideration of the ultimate issue for determination that it was inappropriate in light of the decision of the Court of Appeal in Weal v Bathurst City Council [2000] 111 LGERA 181 to delegate that to future consideration by the council's Environment and Planning Services Director as it went to the heart of the issues before the Court. 2 When the matter resumed today, there was some difference of recollection between the representatives of the parties and the Court as to the precise terms of what had been determined on 7 July. In the absence of a transcript of that extemporaneous decision, I ruled that a slightly expansive version of matters to be dealt with was appropriate but I did take the view that it was not as expansive as that which had sought to be canvassed by Mr O'Rourke for the council. As a consequence, I agreed to admit a statement of evidence from Mr S Opper who is the State Planning Co-ordinator of the State Emergency Services but to limit his evidence to a number of matters concerning the particular proposed Flood Management Plan in the present proceedings rather than permitting Mr Opper to be called to give evidence canvassing the broader and more fundamental issue which I considered I had previously determined. 3 It was Mr Opper's evidence, with respect to the specific concept of Flood Management Plans for individual premises where those Flood Management Plans are prepared by private individuals or companies, that he supported the having of such plans where such plans were initiated by the private individual or entity as such as an initiation by such a private individual or entity demonstrated a pre-existing commitment to the concept of flood management and planning. 4 Secondly, however, he opposed the conditional imposition of such plans by councils as consent authorities, as he did not consider that imposed requirements for flood management planning are appropriate. 5 Thirdly, he agreed that the documents that contained a revised Flood Management Plan Report and a more simplified Flood Management Plan in two A3 pages were possible to make some contribution subject to a number of reservations which he expressed in general terms in the witness box as relating to them. 6 In this regard, I note that he declined to take part in a conference between experts on this matter during the luncheon adjournment. Therefore, if there are any deficiencies arising in the subsequently agreed documents that are of concern to him, he has consciously forfeited an opportunity to have an input to them. 7 Further in this regard, I would wish to express the gratitude of the Court to the participation that Mr Benning, on behalf of the council as its expert advisor, has taken part in that process. The consequence of this is that, despite the views that he had previously expressed in evidence as to the inappropriateness of the proposed development, the documents which have now been developed are satisfactory if they are appropriate, in the view of the Court, to be relied upon as a consequence of these proceedings. 8 Mention was made in Mr Benning's statement of evidence to a decision of then Commissioner Roseth in Sayer v Hastings Council (matter No 10320 of 1997). The decision was mentioned by Mr Benning and is of some utility to the Court in that Mr Opper gave evidence in those proceedings and the decision of the now Senior Commissioner records at pages 6 and 10 the tenor of Mr Opper's evidence on that occasion and it shows the consistency of the position held by Mr Opper. 9 However, the factual circumstances of the two proposed developments are so sufficiently different that, apart from demonstrating the consistency of the position taken by Mr Opper on behalf of the State Emergency Services, I find that earlier decision of little assistance in the present proceedings. 10 It was Mr Opper's conclusion in his statement of evidence (as admitted) that, if the Plan had no technical deficiencies and the participants were committed to the Plan now and into the future, it may have some chance of reducing the impact of a flood. 11 In this regard, the Plan has been improved, albeit without detailed participation by Mr Opper, and I am satisfied that the agreement between Mr Benning and the applicant's experts has resulted in a significantly improved and simpler Plan. 12 Secondly, I am satisfied that the imposition of the originally offered proposed covenant and agreed proposed condition that will be inserted in the Conditions of Consent that require annual rehearsals of the Flood Plan and certificates from a structural engineer as to the flood-proofing being in place and operating will reinforce the appropriateness of a sense of commitment by the applicant or operators of the business to the operation of the Flood Plan. 13 Mr Opper continued, in his conclusion: 'In its current state of quality and by virtue of the reason the plan has been prepared, i.e. only because of a consent condition requirement, the Service has little confidence that the plan will prove to be of value in a flood when that does occur'. 14 As I have indicated, with the improvements to the Plan, I am satisfied that those deficiencies have been addressed and I will return to that in a little more detail in dealing with Mr Molino's evidence shortly. 15 However I reached the conclusion that such defect as might exist because a plan is imposed by way of a Condition of Consent does not entirely remove the public interest value of having such a plan in the first instance. Whilst this it might well diminish the efficiency of the plan because of it being an imposed rather than a volunteered one, I am certainly not satisfied that it renders such a plan of no utility whatsoever. 16 The applicant provided a statement of evidence from a consulting engineer, Mr Stephen Molino, who also gave oral evidence in these proceedings. It was not contested that Mr Molino had not generally been involved in the preparation of or advising on the application and his role has subsequently been as a peer reviewer of the work undertaken by Doctor Robinson and the commentary made by Mr Benning on Doctor Robinson's works. Mr Molino's basic proposition that such flood plans deal with four issues: - the question of risk to life or personal safety; - risk to the environment; - risk to third party property; and - risk to the owner's property. 17 He concluded, in his statement of evidence, that the Plan will reduce the risks to those four elements compared to the development without such a plan. He was tested in cross-examination by Mr O'Rourke and, although he indicated that the Plan, in his assessment, really only assessed and addressed the issue of risk to the owner's property, I note that he repeated the conclusion that the Plan would, if implemented, reduce the impacts of flooding, to tolerable levels, on people, property, the environment and the business. 18 I am satisfied that the original proposition from Mr Molino, despite his resiling from it to some extent in his oral evidence, is the appropriate position to be considered. Mr Molino sets out, at paragraph 8 of his statement of evidence, the protections to the general environment of the area that would be provided by implementation of the plan and I am satisfied that his conclusion that the proposed plan would ensure that the development does not pose an unacceptable risk to the environment is the correct conclusion to draw. 19 A similar position arises with the risk to property of others. It does not merely arise from the evidence that Mr Molino has given in his statement of evidence on this occasion but also from the evidence that was given during the course of the proceedings in Tamworth and what was evident from the course of the view – namely that the relating to the height and velocity of water across the subject site and particularly the likelihood of the protections available to prevent the escape of materials from the present building leading to damage elsewhere. In this regard the issue of the structural integrity of the building itself is to be the subject of a requirement for a structural engineer's certificate as part of the proposed Conditions of Consent. The adequacy of that structural integrity will deal with the issue of the likelihood of risk to damage to the property of others because of the total collapse of the framework of the building and thus the escape of any materials stored within or sought to be protected within it. 20 The third risk that Mr Molino dealt with is the risk to the proprietor of the business. Although the there are elements in this of having regard to the old legal maximum of volenti non fit injuria, it is also appropriate to note (and I accept) that the attempt that the proposals offer for the flood proofing of the building will significantly reduce, if not eliminate, the risk to the property of the owner. 21 The one matter that remains to be considered which, in reality, lies at the heart of the matters in contention is the risk to the personal safety of occupants of the building and, if there be such a risk to the personal safety of the occupants of the building, what is the likelihood that the public services of the State in the persons of the State Emergency Service, the Police Services and the like would be put at any significant risk as a consequence of permitting this use of the building. 22 Mr Molino has dealt with this matter at some length at paragraph 19 of his statement of evidence. He sets out a number of issues relating to the location of the building, the question of the rising of flood waters and the like that were also subject of evidence during the course of the hearings in Tamworth and were examined by me with the representatives of the parties when a view of the site was undertaken. 23 Whilst it is appropriate for the Court to take note of the foibles of human nature, it is in my view not appropriate for the Court to be required to protect people against personal behaviours that are so extreme and irrational as to be of minuscule probability of occurrence. 24 I am satisfied that the matters canvassed by Mr Molino at sub-paragraphs A to K of his statement of evidence together with the matters that were dealt with in evidence given by both Mr Benning and Doctor Robinson during the course of the hearings in Tamworth plus my observations on the site led to the conclusion that proper implementation of the Flood Management Plan proposed in Exhibit K (as modified by agreement between the parties) is likely to have the effect of further minimising what is already, I am satisfied, a very low risk to human safety of permitting the occupation on the site. 25 I specifically make my finding in those terms to make it expressly clear that I am not relying solely on the proposed Flood Management Plan for reaching that conclusion. 26 Had the sole protection been a proposed Flood Management Plan and an evacuation process of some complexity or difficulty as canvassed in the Sayer case or the possible reliance on what was euphemistically called vertical evacuation (which I assume to mean being plucked out by helicopter) that it would not have been appropriate to permit this use. However, the proximity of safe haven either on the bridge or in the opposite direction to higher ground being in very close proximity to the premises together with the likelihood that they would have a considerable period of time to reach safety, even if they did not commence to evacuate until water was lapping at their feet, causes me to be satisfied that there is no risk to human safety that would cause me to refuse the application. 27 Therefore the orders that I would propose to make, subject to any comments that representatives of the applicant or the respondent wish to make as to this process, after the filing of agreed settled terms of conditions and a revised copy of the Flood Management Report and the Flood Management Plan to the council and the provision of a revised copy of Exhibit K to the Court together with agreed Conditions of Consent, will be to the effect that: 1. the appeal is upheld; and 2. the use of the site for a tyre distribution retail facility is approved. 28 At that time, I will go through and settle what exhibits are to be returned. I will not try and do that on the run at the present time. Subject to hearing the parties on this, what I propose to do, for the efficient despatch of business for the parties and the Court, is to direct that the matter be listed before me for mention one week from today on the proviso that if the revised conditions are provided to me by email in the meantime together with the applicant filing a revised agreed copy of Exhibit K, I will issue the orders in chambers rather than requiring the parties to appear again. 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.