Land and Environment Court of New South Wales CITATION : Pavliuk v Gosford City Council [2010] NSWLEC 1048 APPLICANT Peter Pavliuk and Nick Pavliuk PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 10556 of 2009 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Dwelling house in floodway, safety, access LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Gosford Planning Scheme Ordinance DATES OF HEARING: 25 January 2010 DATE OF JUDGMENT: 12 March 2010 APPLICANT Mr J Hancock (agent) LEGAL REPRESENTATIVES: RESPONDENT Mr R Byrd (solicitor) SOLICITOR R J Donnellan & Co. JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 12 February 2010 10556 of 2009 Peter Pavliuk and Nick Pavliuk v Gosford City Council JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for a new dwelling at 71 Lakala Street, Springfield. The site is in an area that is subject to flooding and the principal issue identified for the appeal concerns whether the site is suitable for the development due to its flood liability. 2 The proposed 2 –storey dwelling comprises 3 bedrooms, lounge, kitchen/dining, bathroom, toilet, laundry and single garage. It includes an elevated deck over part of the designated floodway. 3 The property was acquired at auction initiated by the council due to default by the previous owner. The site 4 The site is described as Lot 27 Section 5 in DP 2163. It contains an area of 556.4 sq m and is situated at the eastern end termination of Lakala Avenue. 5 The site contains an elevated platform (covering about 1/3 of the site), from which the land falls to a lower level along part of the eastern boundary and the frontage road. The adjoining lot on the eastern boundary is low-lying and subject to flooding, being located within the Old Erina Floodway. There is a 2 – storey dwelling (No 69) on the lot adjoining the western boundary. Planning controls 6 The site is subject to the following controls: Gosford PSO ; under which it is zoned 9(a) – Restricted Development (Flood Prone Land) and the development is permissible with consent. The objectives of this zone are to ensure that any buildings are appropriately located and constructed. Clause 49 also requires the provisions of the Floodplain Development Manual to be taken into account. Draft LEP and accompanying DCP; exhibited pursuant to s66 of the EPA & A Act 1979. LEP No 429 . Gosford DCP's ; 106 – Site Waste Management, 115 – Building in Flood Liable Areas, 128 – Public Notification, 155 – Single Dwellings and Ancillary Structures, 159 – Character, 165 – Water Cycle Management. The evidence 7 Detailed evidence was presented by: Mr A Treers; Applicant's consulting engineer, Mr J Hancock; Applicant's town planner, Mr J Mahoney; Advisor engineer development Ms J Fisher; Council flooding and drainage engineer. 8 Mr Treers supports the proposal following his flooding assessment on the basis that the 2 – storey dwelling would be erected on concrete embedded stumps above the flood level of RL 3.30 AHD. The lower floor level is proposed as RL 4.00 AHD and the garage floor is RL 3.90 AHD. Mr Treers considers the site is located within a flood fringe area, which has a low-hazard risk. 9 However council opposes this application because of its location within the designated Erina Creek floodplain. Whilst it may be possible to build the proposed dwelling on the elevated platform, council submissions are that regular flooding creating unacceptable safety risks would compromise the utility of the remaining open space area. Also, the levels of the access from Lakala Ave pose an unacceptable safety risk. 10 It appears from the evidence that a considerable amount of flood investigation work has been undertaken in this Erina Creek catchment, particularly the adopted Floodplain Management Plan (FMP), dated June 1991 as prepared by Webb McKeown. This FMP presented a number of different flooding scenarios for flood mitigation measures and associated development controls. 11 The key features of the adopted Plan are: ultimately no buildings will be flooded above habitable floor level by the designated flood (1% flood). This is to be accomplished through the construction of a levee and voluntary purchase of existing properties, provision for limited development upon flood fringe land subject to strict controls, lands within the floodway will be maintained in perpetuity for the passage of floodwaters and acquired by council where appropriate, a timetable of works, rate relief for non-developable blocks, controls for future development of the upstream catchment, definition of the 1% flood. 12 I understand from council's submissions that it has consistently adhered to the provisions of this FMP. In particular the plan includes a policy of considering purchasing vacant blocks when offered for sale. At the present time, council has acquired about 80 – 85% of the designated lots, as shown on the associated "Acquisitions Plan" in Exhibit 7. 13 The subject land is shown on this plan, with about 75% of the site designated as floodway to be acquired. According to the submissions, council is interested in the acquisition of this land at the appropriate valuation. Insofar as the land was sold at auction for unpaid rates and council was outbid, I do not consider that gives the applicant any particular entitlement for a development approval. 14 The FMP incorporates the provisions of the NSW Government Flood Plain Development Manual (FDM), wherein "Floodways" are defined as: "those areas where a significant volume of water flows during flood events and are often aligned with obvious natural channels. They are areas that even if only partially blocked, would cause a significant increase in flood levels and/or a significant redistribution of flood flows, which may in turn adversely affect other areas. They are often, but not necessarily, areas with deeper flows or areas where higher velocities occur." 15 Accordingly, the FMP states that: "once defined, the floodway should never be compromised. Small changes occurring progressively in time will cause a significant change to flow capacity. Landuse in floodways must be carefully controlled to ensure that the conveyance of the floodway is not reduced. Building will not be permitted, hazardous uses will not be permitted, obstructions or operations likely to impede the floodwaters will not be permitted in floodways. 16 Mr Treer's assessment involves the interpretation of flood modelling results in the Webb McKeown FMP. From this, he considered the flood contours at cross sections 17 and 18 to calculate the 1%AEP flood level as the site as 3.27 – 3.30m. 17 Then he examined the flood hazards by reference to the Appendix L of the FDM, which is assessed as the product of the floodwater velocity (V) and depth (D). Fig L1 indicates that a factor of v x D < 0.4 is safe for wading. Fig L2 shows floodwaters with a factor of V X D < 1 but with D > 1 would normally be categorised as high hazard. Although, the FDM states that "a high hazard category may be reduced to low, if an effective community evacuation plan is implemented". 18 Consequently Mr Treers says that the proposed dwelling will be flood free and that any flooding of the site would be of relatively short duration. He estimates the average maximum velocity along the right bank would be 0.40m/s, although a slower velocity may occur at the edge of the floodway in the vicinity of the subject property. And whilst he acknowledges that the vehicular access will not be flood free, he considers pedestrian access will not be compromised. 19 According to Mr Mahoney's assessment, the flood depth at the northeast corner of the lot is approximately 1m. Taking into account the estimated 0.4m/s velocity in this area, he considers the road access unsatisfactory because the L1 Table shows the V x D ratio represents a high hazard risk. Furthermore, he says that sections of the site along the eastern boundary adjacent to the swamp/wetland, are likely to be subject to inundation of up to 2m, which he considers inappropriate and unsafe. 20 Mr Mahoney also supported his opinion on the basis that the consideration of the probable maximum flood (PMF) impacts would result in a flood level in the order of RL 5.05 – 5.34m. He also says that consideration should be given to likely effects of climate change, which was not included in the FMP assessment. This he says could result in an increase in the flood level up to 0.91m. Consequently he does not support the approval of this development. 21 This position for refusal of the application was also supported by Ms Fisher, who considers the development is unacceptable because it is located within the floodway based on the provisions of the Webb, McKeown & Assoc. report. This indicates primary flow rates in the order of 263.8 cu m/s in the 1% AEP and associated flow rates of 149.8 cu m/s on the right channel section, at this cross section. 22 Accordingly Ms Fisher is of the opinion that the site is within the floodway and the development should not be supported because: The development is in direct contradiction with Council's adopted Erina Creek Floodplain Management Plan. The development application has not adequately addressed the cumulative impact of development on the floodplain in accordance with the NSW Floodplain Development Manual, Australian Rainfall and Runoff, DCP 115. The development creates a risk to personal safety and potential flood damages, where previously no risk existed. Safe vehicular access is not available. Effective flood evacuation of any description is limited, if considered available at all. Conclusions 23 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. 24 I am satisfied from the evidence that this site is sensitively located relative to the Erina Creek floodplain, which has been subject to comprehensive investigation. That investigation has resulted in the adoption of the Floodplain Management Plan, June 1991, which restricts development of flood prone land and includes a land acquisition plan for designated properties. The FMP is a relevant matter for consideration. 25 The subject site is located within the floodway under the FMP and is designated for acquisition. I understand from the evidence that council has consistently applied the provisions of this plan and provided a budget for acquisition of the designated properties resulting in about 80% of the properties having been acquired. 26 Accordingly, I consider significant weight should be given to the provisions of the FMP, whereby development within the floodplain is not allowed, so that in part the amenity of other land in this catchment is maintained by the progressive floodway land acquisition program to mitigate flooding impacts. 27 Apart from this, I have considered the particular merits of this application. Insofar as Mr Treers has provided an engineering assessment, I consider its reliability is limited because it did not involve actual modelling. In this respect, I acknowledge the significant costs of modelling associated with a relatively small development. However when a significant departure from the controls is proposed then substantive supporting evidence is required. 28 Notwithstanding this, I accept that it would be possible to erect the proposed building on the elevated portion of the site. However, I am then satisfied to rely on the evidence of Mr Mahoney and Ms Simpson that as part of the building would be elevated on piers, this would be undesirable for safety and amenity reasons. 29 My observations at the view were that the neighbouring properties have a level of amenity that is dependent on the rear private open space areas being used for various recreation activities and includes play equipment, sheds and gardens. It seems to me that the low-lying nature of the rear yard of the subject property, 75% of which is in the floodway, would need comprehensive conditioning to prevent such improvements so that regular flooding was not impeded. 30 Such conditioning would also preclude storage under the elevated deck, which I understand is a common problem in other situations. It would also limit boundary fencing so as not restrict the floodwaters. Therefore this flood-liable lot would experience reduced amenity, as compared to the neighbouring properties. 31 However, I consider that the most critical aspects of the proposal are the safety and access risks. The experts agreed that the basis for assessing these risks was the application of the Appendix L – Hydraulic and Hazard Categorisation V x D criteria. In this regard, I consider it appropriate to adopt a cautious approach whereby the appropriate velocity is 0.40m/s, as stated by Mr Mahoney. As the depth at the front and side of the lot is in the order of 0.94m, the Appendix L table shows this as High Hazard. 32 Considering the topography of the site where the street access is approximately 1m below the 1% AEP (i.e. street RL 2.30m v flood level RL 3.30m), then vehicular access is not possible in many flood events and pedestrian access would be high hazard. In the absence of any effective evacuation plan, I do not consider the site is suitable for the development due to the excessive flood risks in accessing the property. 33 I also note the council's evidence that the FMP is subject to review and that climate change allowances will likely increase the flood planning levels, thereby increasing the safety risks. 34 In the ultimate, I do not consider the public interest is well served by the approval of this housing development, which is located within the Erina Creek floodway. Whilst reference was made to the approval in 1994 for the adjoining dwelling (No 69 Lakala Ave,), I think this property is distinguished because it is further removed from the designated floodway and only a relatively small portion of the rear yard is affected. Whilst similar pedestrian and vehicular access arrangements would apply, I do not consider the public interest is well served by the extension of this level of risk, particularly when this property has been identified for acquisition. 35 For these reasons, I do not consider the proposal demonstrates adequate compliance with the FMP to merit consent. Court orders 36 The Court orders: 1 The appeal is dismissed. 2 The development application for the erection of a 2 – storey dwelling at 71 Lakala Avenue, Springfield is refused. 3 The exhibits may be returned except for A and B. R Hussey Commissioner of the Court ljr 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.