Land and Environment Court of New South Wales CITATION : Neate v Woloongong City Council (No 2) [2007] NSWLEC 482 Applicant: David Neate PARTIES : Respondent: Wollongong City Council FILE NUMBER(S) : 11377 of 2005 CORAM: Roseth SC KEY ISSUES: Development Consent :- emergency response to floods DATES OF HEARING: 01/08/2007 DATE OF JUDGMENT: 7 August 2007 Applicant: LEGAL REPRESENTATIVES: Mr M Staunton, solicitor of Wilshire Webb Staunton Beattie Respondent: Mr M Mantei, solicitor of Kells JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 7 August 2007 11377 of 2005 David Neate v Wollongong City Council (No 2) JUDGMENT 1 Senior Commissioner: This is an application under s96 of the Environmental Planning and Assessment Act 1979 to modify the consent issued by this Court on 4 April 2006 by removing the deferred commencement condition and including it as an operational condition. 2 The deferred commencement condition is: This consent shall not operate until the Wollongong City Council is satisfied, after consultation with the State emergency Service, that an effective evacuation strategy that deals with flooding, evacuation flood height triggers, evacuation route and evacuation centres designated in the State Emergency Service's Wollongong and Shellharbour flood plans, including effective flood warning system, has been prepared for the development. 3 The applicant justifies its request on the grounds that it has satisfied the deferred commencement condition to a major degree and the remaining parts may be satisfied before the issue of an Occupancy Certificate. The council disagrees. It takes the position that the applicant has not met the essential parts of the condition. During the hearing the applicant changed its position and agreed to the replacement of the deferred commencement condition by other, more specific, deferred commencement conditions. 4 The Court heard the evidence of four experts: for the council, Mr Pasqualino Silvery, the council's flood plain strategy manager; Mr Steven Opper, director of the emergency management, State Emergency Services; for the applicant, Mr Paul Nicholls and Mr Anthony Barthelmess, both water resources and flooding engineers. Following discussions between them and evidence in the Court, the four experts agreed to the replacement of the deferred commencement condition by four new deferred commencement conditions and one operational condition. 5 Given that the four experts agreed on the above and there were no submissions against, the orders are, in effect agreed. The fact that they are not consent orders reflects only that the parties' representatives did not receive instructions to that effect. Orders 1 The application is upheld. 2 The Deferred Commencement Condition of the consent granted by the Land and Environment Court on 4 April 2006 is deleted. 3 The following four Deferred Commencement Conditions are substituted for the above deleted condition: a) Quantify by detailed modelling with Flood Warning System model the times available to evacuation for a range of floods (including 5, 20, 50 and 100 years and Probable Maximum Flood) to justify the emergency response strategy in the draft Emergency Response Plan. b) Demonstrate in writing that agreement has been reached with other parties that are relied on for the provision of data inputs into the flood warning system. c) Demonstrate that: i) the evacuation route will remain usable for long enough for the evacuation to be completed ensuring that the road is not closed by local flooding for unreasonably long periods, relating to flood events excluding the Probable Maximum Flood; and ii) the predictive flood warning system provides a reasonable estimate of when the evacuation must be commenced to ensure that it can be completed before flood water encroaches on the lowest point along the evacuation route in those instances where the chosen strategy is evacuation. d) Provide a draft Emergency Response Plan based on and developed from the July 2007 report of Cardno Forbes Rigby. 4 The following operational condition 150B is inserted: 150B Prior to the issue of an Occupation Certificate (interim or final) the applicant is to provide satisfactory evidence to council that: · all components of the Flood Warning System are constructed, tested and fully operational; and · the evacuation strategy is finalised including: a published operation and maintenance manual; an outline of management roles and responsibilities; details of key emergency contacts; and a process for regular testing and review of the Flood Warning System and emergency response procedures. _____________________ Dr John Roseth Senior Commissioner 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.