Land and Environment Court of New South Wales CITATION : Bolster v Tweed Shire Council [2007] NSWLEC 390 APPLICANT Paul Anthony Bolster & Patricia Carmel Bolster PARTIES : RESPONDENT Tweed Shire Council FILE NUMBER(S) : 10092 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- erection of two sheds for farm storage and tea tree processing and storage - flooding LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Tweed Local Environmental Plan 2000 CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 29/05/07 DATE OF JUDGMENT: 29 June 2007 APPLICANT Mr J Robson SC SOLICITORS Bolster & Co LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy, solicitor SOLICITORS Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 29 June 2007 10092 of 2007 Paul Anthony Bolster & Patricia Carmel Bolster v Tweed Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application 06/1323 by Tweed Shire Council (the council) for the erection of two sheds for farm storage and tea tree processing and storage at 9441 Tweed Valley Way, Chinderah (the site). The site and general area 2 The site is Lot 1 in DP 129471. It has an eastern boundary of 384.87 m to Tweed Valley Way, a northern boundary of 1011.87 m, a southern boundary of 765.8 m, a western boundary to the Tweed River and a site area of 29.14 ha. 3 The site contains an existing dwelling and horse stables on a raised building pad and is used for the growing of tea trees. The general area is mainly used for sugarcane cultivation and is located on the floodplain of the Tweed River. The proposal 4 The proposal consist of two main components: o the creation of a raised building pad to 4.0 AHD (or 4.0 m above existing ground level) within an area of approximately 7760 sq m and with an approximate volume of 16,900 cu m. The pad includes a level area for the construction of sheds, access driveways, batters and manoeuvring areas. o the construction of a 8-bay shed having a gross floor area of 864 sq m (48 m x 18 m) to be used to produce tea tree oil, storage of farm equipment and office and staff amenities and a 36 sq m shed (6 m x 6 m) to be used for storage of processed tea tree oil. Relevant planning controls 5 The site is within Zone 1(b2) Agricultural Production under Tweed Local Environmental Plan 2000 (LEP 2000). The proposed use is permissible with consent within this zone. The primary zone objective is: to protect identified prime agricultural land from fragmentation and the economic pressure of competing land uses 6 The secondary objective is: to allow other development that is compatible with agricultural activities 7 Relevantly, cl 8(c) states that consent may only be granted if the development would not have unacceptable cumulative impact on the community, locality or catchment that will be affected by it being carried out. Clause 34 provides considerations on the potential impact of flooding. The clause states: 34 Flooding (1) Objectives • to minimise future potential flood damage by ensuring that only appropriate compatible development occurs on flood liable land. • to minimise the adverse effect of flooding on the community. (2) Where, in the consent authority's opinion, land is likely to be subject to flooding, then it must not grant consent to development on that land unless it has considered: (a) the extent and nature of the flooding hazard affecting the land, and (b) whether or not the development would increase the risk or severity of flooding of other land in the vicinity, and (c) whether the risk or severity of flooding affecting the development could be reasonably mitigated, and (d) the impact of the development on emergency services, and (e) the provisions of Section A3 - Development of Flood Liable Land of Tweed Development Control Plan . 8 Tweed Shire Development Control Plan (the DCP) applies. Section A3 – Development of Flood Liable Land, Section A3.2 – The Flood Mitigation Strategy, Section A3.2.2 – Development Generally on Flood Liable Land are relevant. Relevantly, the requirements for filling in Section A3.2.2 state: For drainage purposes only, land will be required to be filled to the approximate level of the centre line of the adjacent road unless adequate alternative stormwater drainage is provided. In the areas outside the residential zones, applications for filling above the level of the adjacent road will be considered where the applicant can satisfy Council that there will be no interference to local drainage nor any material adverse effect on adjacent land. 9 Map 1 of the DCP identifies the areas affected by the Average Recurrence Interval 100 year flood. The site falls within this area. 10 Tweed Valley Floodplain Risk Management Study (and Draft Plan) 2005 – Planning Controls For High Flow Areas (the Study) applies. Part 1 of the Study determined appropriate flood planning levels and have been incorporated into the DCP. Part 2 of the Study was to assess the risks associated with "High Flow Area" areas. Figure 1 maps the location of the proposed development as a "High Flow Area" based on the flood velocity and flood depth (v/d value). Clause 2.3.1 makes reference to the NSW Floodplain Development Manual 2005 (the Manual). Clause 2.9(a)(i) recommends a maximum 300 mm increase in ground level and a maximum building footprint of 80 sq m for 1(b) Agricultural zoned land. 11 There are a number of other planning controls that relate to the site but do not relate to the principal issue of flood impact. The issue 12 The principal issue in the proceedings was the impact of the raised building pad on flood behaviour. The council raised no issue with the proposed use of the buildings for the production of tea tree oil and ancillary uses. There were also no objections to the proposed development. Flooding The evidence 13 Mr Danny Rose, the Flooding and Stormwater Engineer with the council states that the proposal is unacceptable because it exceeds the maximum 300 mm increase in ground level and maximum building footprint of 80 sq m (with the exception of the storage shed to house processed tea tree oil) for 1(b) Agricultural zoned land in the Study. 14 In his opinion these requirements appropriately limit development in High Flow Areas to minimise the cumulative impacts of development on the floodplain, in accordance with the Manual. The planning controls were adopted following the appropriate floodplain risk management process, as prescribed by the Manual, including a period of public exhibition and consideration of submissions. The controls ensure sustainable floodplain development, without unnecessarily sterilising the floodplain from all development and without providing ad hoc consents that may set a precedent for similar applications. 15 Mr Martin Findlater, an engineer, provided evidence for the applicant. He rejects the conclusions of Mr Rose for a number of reasons. Firstly, and using a separate modelling exercise Mr Findlater calculates that the proposed fill will raise the upstream flood level by 0.006 mm with no significant change in velocity. This impact is not significant in relation to accepted error and variations in the input data. 16 Secondly, and in terms of cumulative impact, Mr Findlater acknowledges that any assessment is more subjective however by modelling similar sized areas of fill he examined whether flood behaviour would change. Based on the flood contours and the extent of the floodplain, he noted that the floodplain widened upstream of the site and was artificially constrained by the Pacific Highway downstream. From this Mr Findlater concludes that the cumulative impacts will be greater when located within floodplain restrictions and less when located where it widens. The proposed development is located upstream of a constraint and therefore does not contributed to cumulative impacts in a measurably significant manner. He also notes that the cost of providing the fill would also act as a deterrent for further similar applications. 17 Thirdly, Mr Findlater raises concern over the methodology of the Study. In his opinion, the Study does not properly address the impacts of partial blockages and whether these would could significantly redistribute flood flow or significantly increase flood level. The Study also does not properly address the cumulative impacts in these areas and the inadequate identification of hazards and risks because of the low v/d value adopted in the Study. 18 Fourthly, the maximum increase in ground level and maximum building footprint unacceptably restrict the ability of landowners to carry out activities associated with the legitimate rural use of land. The controls effectively sterilise land despite the Manual encouraging a merit-based approach to floodplain development. Findings 19 Mr Rose and Mr Findlater agreed that the proposal, in isolation, would not impact on flood behaviour. The issue between the experts fundamentally relates to potential cumulative impact. This a matter raised by cl 8(c) and cl 34 of LEP 2000, an aim in Section A3.1.1 of the DCP, objectives in cl 2.1 of the Study and the general approach of the Manual. 20 The DCP is a specific consideration raised by cl 34(2)(e) of LEP 2000. It does not however provide specific development standards. Section A3.2.2 addresses filling however the requirements appear to relate to drainage matters although this section states that there will be no ….any material adverse effect on adjacent land. 21 The weight to be given to the Study was in dispute between the parties. Mr Robson SC, for the applicant, submitted that the Study is not a development control plan and should be seen only as a guide for development. The Manual provides an appropriate level of discretion to address development in flood affected areas 22 Ms Gerathy, for the council, submitted that the Study should be given significant weight as it reflects the risk management philosophy adopted by the Manual, in that a holistic view is taken of flood management rather than the management of individual properties. The adoption of an individual assessment, as advocated by the applicant, cannot properly assess cumulative impacts. The comments in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 support the council's submission that significant weight should be given to the Study because of the process undertaken by council in preparing and adopting the Study. 23 In considering the competing submissions on the weight to be given to the Study, I am satisfied that the document should be given weight in the proceedings after taking into account those matters raised in par 92 of Stockland. These are: 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: · o the extent, if any, of research and public consultation undertaken when creating the policy; · o the time during which the policy has been in force and the extent of any review of its effectiveness, o the extent to which the policy has been departed from in prior decisions; o the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · o the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · o whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 24 Part 2 of the Study was publicly advertised and received no submissions. The council resolved to adopt Part 2 of the Study on 7 October 2006 and to amend the provisions of the DCP to reflect its contents. The DCP however remained unaltered at the time the hearing. Importantly, the Study provides the only numerical requirements to address the issue in the proceedings. 25 In coming to the conclusion that the Study should be given weight in the proceedings I am not convinced that the development standards should be blindly followed to the extent suggested by Mr Rose. When questioned on the basis for the maximum 300 mm increase in ground level and maximum building footprint of 80 sq m development requirements, Mr Rose indicated that the standards were formulated from discussions with a number of people experienced in flood management and subsequently adopted by the councils Floodplain Management Committee. 26 Considering the level of computer modelling undertaken to establish the Average Recurrence Interval 100 year flood and High Flow Areas, the establishment of appropriate development standards would appear to be particularly arbitrary, even accepting the likely experience and knowledge of those people involved in establishing and ultimately adopting the requirements. In my view, this approach does not satisfactorily address the consideration in Stockland relating to research …. undertaken when creating the policy. It is not however a sufficient reason to effectively abandon the Study. 27 Notwithstanding the shortcomings in the formulation of the development requirements in the Study, I am not satisfied that the development should proceed. It is not the role of the Court to review the decisions made by the council. In this case there was no dispute that the Study was properly advertised, considered and adopted. It would be open to the Court to vary the development requirements in the Study (particularly considering the genesis of the development requirements) however I am not prepared to adopt this approach for two significant reasons. Firstly, the large difference between the development requirements in the Study and the proposed development. To accept the significant departures from the development requirements in the Study would be to largely disregard the contents of the Study and give no weight to the process undertaken by the council in the formulation of the Study. 28 Secondly, the approval could also potentially raise the question of precedent; the site having no special physical characteristics that could be used to distinguish itself from other sites in the floodplain. The potential cumulative impact on flood levels of similar applications across the catchment is unknown and is a matter that requires specific consideration under a range of planning controls. 29 Even though Mr Findlater helpfully undertook independent modelling to address the issue of potential cumulative impacts it is clearly not extensive enough, in my view, to address the question of cumulative impact for the catchment, as recommended by the Manual and adopted by the council in the Study. A proper assessment of potential cumulative impacts could only be undertaken through further modelling of the whole catchment. This is a matter that could only practicably be undertaken by the council. Additional modelling to establish more rigorous development requirements would be clearly more desirable and effective than the existing arbitrary approach. It would provide a greater understanding of the affects of development in the floodplain (or different parts of the floodplain as suggested by Mr Findlater) in a manner more consistent with the approach set out in the Manual. 30 In accordance with cl 8(c) of LEP 2000, I find that the applicant has not satisfied the Court that the development would not have an unacceptable cumulative impact on the community, locality or catchment. The proposal is also inconsistent with the second objective in cl 34(1) and it follows that the appeal must be dismissed and development consent refused. Orders 31 The orders of the Court are: 1) The appeal is dismissed. 2) Development Application 06/1323 for the erection of two sheds for farm storage and tea tree processing and storage at 9441 Tweed Valley Way, Chinderah is refused. 3) The exhibits are returned. ______________ G T Brown 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.