Land and Environment Court of New South Wales CITATION : Morphett v Penrith City Council [2009] NSWLEC 1160 APPLICANT Barry Morphett and Judith Morphett PARTIES : RESPONDENT Penrith City Council FILE NUMBER(S) : 11110 of 2008 CORAM: Hoffman AC KEY ISSUES: DEEMED REFUSAL :- Subdivision - to turn an existing house lot into 3 lots Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Penrith Local Environmental Plan 1998 Urban Land Penrith Development Control Plan 2006 DATES OF HEARING: 20 April 2009 DATE OF JUDGMENT: 26 May 2009 APPLICANT Ms J Reid (solicitor) SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms K Poulos (barrister) INSTRUCTED BY Penrith City Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman A/C 26 May 2009 11110 of 2008 Barry Morphett and Judith Morphett v Penrith City Council JUDGMENT 1 Commissioner: This is a class 1 Appeal No. 11110 of 2008 between Barry and Judith Morphett and Penrith Council in regard to the deemed refusal of a subdivision application DA08/0969 to turn their existing house lot into 3 lots. The property is Lot 1811 DP 1123236 known as No.12 Forbes Street, Emu Plains. The area is a detached housing subdivision on the west side of the Nepean River. 2 The existing house and swim pool would be on proposed Lot 1 of 1011 sq m facing Forbes St; the other two lots would front McLean Street. Proposed Lot 2 is 842 sq m with a frontage of 12.85 m fanning out to 20.115 m at the rear. Proposed Lot 3 is 974 sq m with a frontage of 12.85 m fanning out to a rear boundary of 20.115 m. At the present there is a tennis court and a large lawn area on Lots 2 and 3. There are no significant trees on Lots 2 or 3. 3 A summary of the contentions is that there are two main issues: o The land is flood liable, and evacuation could be hazardous. o Lots 2 and 3 do not comply with the statutory frontage width. 4 The council's amended statement of contentions said simplicita: a The proposed development does not satisfy the following objectives or clauses of Penrith Local Environmental Plan 1998 Urban Land : 32(1), 32(2) a, b, f, g, h and i. b The proposed development is not in accordance with Section 3.9 and the objectives of Penrith Development Control Plan 2006 in regard to flood liable land. c The proposed development is not in accordance with the NSW Floodplain Development Manual. d The council does not support any further development of land that is flood liable, and any approval would create an unacceptable precedent. 5 The applicant had requested more and better details and the council replied: 1. Yes, council does agree the policy for flood liable land is Part 2 Section 2.10 Flood Liable Land of Penrith Development Control Plan 2006. . 2. The development does not satisfy cl 32(1) of the Penrith LEP 1988 Urban Land in Part 2 Section 2 of the Penrith Development Control Plan 2006 and in particular Part A clause 2 (aims and objectives) and Part B c1auses 3.9(a) and 3.9(d). 3. Clause 32(2)(a) i. The flood behavior has been identified in the flood model. The Council relies on the flood model in relation to the potential flood behavior. Future development on the site will have an impact on both the floodway and flood behavior. ii. The flow of floodwaters has been identified in the flood model. The Council relies on the flood model in relation to the potential flow of floodwaters. If this does not adequately respond to your request, please particularize specifically what information you require. 4. Clause 32(2)(b) i. The resulting development on the land will be subject to damage and property loss. The development will also have the potential for loss of life in a major flood event. ii. The hazard relates to the floodway condition through the site and the isolation of the site from effective evacuation routes during a major flood and that there are no refuge points that will secure residents from an extreme event. iii. Potential flood damage will exist for the buildings on the proposed development. There may also be increased damage potential if these developments redistribute flows to other properties. iv. No effective condition can resolve these issues. 5. Clause 32(2)(f) Potential loss of life for the occupants of the proposed lots. 6. Clause 32(2)(9) I note that at the Directions hearing on 12 March 2009 the Court made an order granting the respondent leave to amend the Statement of Facts and Contentions to include the answers to the further and better particulars as well as clause 32(2)(g) by 18 March 2009. 1. The resulting development of the land including buildings and ancillary works are within the floodway and will result in some form of obstruction and restrict the capacity of the f1oodway. 2. The extent of flows in the floodway have been identified in the flood model. The applicant has not provided sufficient information to respond further. 7. Clause 32(2)(h} i. The resulting development and occupation of the proposal will result in the need for additional SES resources, and those of other agencies, to be provided for evacuation. There will be other impacts associated with the recovery after a major flood event. ii. Emergency Services including NSW Wales Fire Brigade, Ambulance and Police. Volunteer rescue organizations such as the Red Cross and Council's own resources. 8.. Clause 32(2}(j) i. The subdivision alone will not have any effect on the flood characteristics of the site. The resulting developments, that will occur, will, however, impact on the floodway and flood behavior. It will also introduce additional residents to a high-risk area and place their lives at risk in a major flood as effective evacuation routes are not available and the flood island does not have secure refuges areas. ii. The flows across the flood plain have been identified in the flood model. The. Council relies on the flood model in relation to flows across the floodplain. We are happy to meet with you again to run through the flood model. 9. Clause 3.9 Penrith Development Control Plan 2006 i. The development is in a floodway and a high hazard area. b. The discharge in the floodway commences at 5 to 10 m3/s when the flood runner originates and increases to about 95 m3/s at the 1 % level. For the 0.5% event, the floodway will be carrying about 600m3/s. iii. The floodway is in a natural depression, but is not in a well defined flowpath. iv. Blockage of any part of the floodway could result in redistribution of flows. v. the affected area would be dependant on the location and magnitude of the blockage. vi. The floodway will sever safe evacuation from this site. vii. We do not understand this question. If you clarify the question we are happy to provide a response. viii. Isolation of the area in a major flood and the creation of an island with no effective refuge, will place resident's lives at risk. The depth of inundation of the evacuation route would prevent truck access. The available evacuation time and size of the population to move would not facilitate evacuation by truck if evacuation routes were possible. 10. NSW Floodplain Development Manual i. The Floodplain Development Manual is a relevant consideration in terms of the public interest: Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979. I rely on the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 where Mason P, writing the Judgment on behalf of the Court, held that: "In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final... Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest".... A consent authority may range widely in the search for material as to the public interest." (paragraph 81). The Manual is the peak flooding publication that guides planning and government authorities in planning for flood events. This Council and other Council's use this Manual in determining flood planning policies. ii. The proposal is in breach of overall thrust of the Manual but in particular, Appendix L6 and G9. Note; I have added some text above to clarify the questions asked by the applicant. The Evidence 6 The respondent's evidence was heard from Mr C Ross, Engineer Major Projects Manager of council; and Mr P Cinque, Regional Controller of the Rural Fire Service BSc(Hons), MSc, MAIES. 7 The applicant's evidence was heard from Dr D Martens BSc(Hons), MEngSc, PhD, FIEAust, CPEng, NPER. 8 Initial objection was taken to Mr Cinque's comments on the computer flood model, but the respondent only brought his evidence on flood evacuation issues. His evidence in that regard was allowed. 9 At the on-site component of the Hearing it could be seen that the site is towards the Nepean River eastwards from a local arterial road called Russell St that runs parallel to the river. The residential area around the site is east from Russell Street, between the F4 Motorway, and the Great Western Highway and the river. The site is about 400m from the river. 10 Between the site and Russell St (the latter is on high land), there is a depression in the otherwise flat topography. The depression is easily seen looking along Forbes St and McLean Street from outside the site. I was told this depression runs northwards generally parallel to the river, and carries floodwater from upstream when the river breaks its banks. The depression apparently joins other floodwaters downstream. The water in the depression cuts off the residential area in which the site is located from high land, and creates what is called a "flood island". In times of flood the depression is called a "floodway" and a "flood runner" in the evidence. 11 The experts agreed that in a 1 in 100 year flood event the volume and depth of the water at the site would of itself not require evacuation. The site would have about 0.68m depth of water at that time according to the council experts. Dr Martens says about 0.5m. 12 Dr Martens found the ground levels at the site used in the council's reports are lower that actual, and as a result the depth of water would be marginally less. The flow rate of flood water is important in assessing hazard as it can cause people to trip over scoured ground or objects beneath, or make wading difficult to the point of sweeping people away. He calculated from the accurate ground levels with the lesser depth of water in the 1 in 100 year flood, and flow rates reduced by the obstructions caused by existing houses, garages and fences etc, only the existing house would potentially be "High Hazard" due to flow rates. 13 In his opinion that meant the subdivided lots and any new houses would be "Low Hazard" and therefore under the applicable statutes should be approved subject to conditions of the house floors being set 0.5m above the 1 in 100 flood level, and buildings being on piers so flood water could pass beneath. He said the existing colorbond fences common in the area and other houses would slow the flow rate of floodwater across the site. 14 The council expert, Mr Ross, said that the flood covering the site in a 1 in 100 year event is not a backwater, it is a floodway even if it is only 0.5 – 0.68m deep. If the existing houses etc cause obstruction in the flow path, the flood waters would have to move the same volume through the area, and would do so by backing up to greater depths than currently predicted, not lesser depths as put by Dr Martens. The result would also be that water in the depression that evacuees had to cross to Russell St would be deeper and more hazardous. 15 Dr Martens noted that two apparently recent houses near the site had been approved with the raised floor levels. The respondent said they are on existing lots that have development rights. The proposal would create two new development rights, and if used for dual-occupancy units could create 4 new dwellings. 16 Mr Ross said there are 950 lots on the "flood island" that could potentially be subdivided or have dual occupancy units. That potential would cause substantial additional population to those that already take a long time to evacuate, when time is of the essence in a flood emergency. Mr Cinque later gave evidence on why time is of particular essence on the "flood island". 17 Cl G9.1 and G9.2 of Appendix G of the NSW Floodplain Management Manual were referred to in this regard. The applicant submitted that the council's statutes and controls were written taking that document into account. Since it is not a planning instrument the council documents should be seen to supersede and over-ride it. 18 The statutory argument is that the Penrith LEP 1998 defines "Flood liable land" as land that is inundated in a 1 in 100 year flood. And cl 32 that gives the statutes on development of flood liable land does not prohibit subdivision or development, it only requires consideration of various factors and whether the impacts are significant. In this case sub-clauses 32 (2) (a), (b), (f) and (h) as mentioned above. The experts' evidences are generally that in a 1 in 100 year flood, the impacts at the site are not significant. The applicant says that means "approve the subdivision". 19 The respondent's experts concerns are the impacts beyong the site of the 1 in 100 year flood and worse floods such as the 1 in 200 year flood and the PMF. The PMF is the "probable maximum floor" being a 1 in 1 million year flood event. No doubt the PMF is a flood of truly epochal proportions since the calculations are that the "flood island" would be under 4.6m of water at the subject site. Dr Martens said the PMF is the "improbable flood" and that is why the sensible design parameter of 1 in 100 flood is the standard for assessment 20 Mr Cinque said the key to his concerns is that with an existing 4300 houses on the "flood island" it takes so long to notify 4300 and evacuate, and the meteorology is so poor, that even in the 1 in 100 flood he would evacuate the area. The hydrograph monitors on rainfall and river levels only allow prediction ahead 7 hours. It would take 16 hours to evacuate all the "flood island" area. So the SES has to make a "fail safe" decision to evacuate just in case the flood turns out to be bigger than the last prediction received from the Bureau of Meteorology during the storm. This is done by manually keeping track of rainfall up in the catchment and making a decision based on experience. 21 One of the contributors to this "fail safe" approach is that once the Nepean river breaks its banks upstream and water starts to flow down the depression and it becomes a floodway or flood runner, it takes only half an hour to cut off the residential area. If the population has not been evacuated by the time that occurs then evacuation becomes a much more difficult operation. 22 So unless the peak of a storm is clearly passed before even the prediction of a 1 in 100 flood comes from the hydrograph monitors, one has to evacuate in case the storm continues or gets worse, Mr Cinque said. 23 The Nepean comes down through narrow gorges and accelerates and deepens as the water volume increases. It gives less warning time than other rivers with wider passages. Although the history of recorded floods shows that the 1900 flood was probably a 1 in 200 year flood event. The 1 in 100 year flood predicted level has been reached about 6 times in the last 200 years at the Victoria Bridge nearby and in Penrith CBD. 24 Dr Martens said that the 1900 flood, and most of them up to WW2 were with minimum development at Emu Plains and upstream. Now there is the Warragamba Dam and farm dams and other lesser stream and river works that must reduce the regularity of 1 in 100 floods compared to the past. 25 Mr Ross and Mr Cinque said that is not the test. The correct test for a flood emergency is to assume that Warragamba is full, and any other works that reduce or slow down drainage to the Nepean are at capacity too. That could occur in a period of regular rains of low intensity. In that scenario, if there are 1 in 100 year flood rains once everything upstream is full, then the resultant flood at Emu Plains is still going to be the same as the past. 26 Dr Martens said that scenario illustrates that the computer model used by the council gives a very conservative or "worst case" prediction. He doubted that 1 in 100 year rainfall up in the river's catchment would even produce a 1 in 100 year flood at the site any more. 27 It was put to Mr Cinque that high land is very close by so it should not take 16 hours to evacuate. 28 He said one has to appreciate the mental attitude of residents and the logistics involved. Experience has shown it takes 2 hours for people to comprehend that they have to evacuate after the order is given. Then it takes 1 hour for them to pack essentials. Next, there are only limited roads to escape through, so traffic has to be staged to prevent traffic jams. The SES does that by door knocking progressively, and moving people out street by street. It also enables them to identify people who refuse to leave, and who may need extra SES attention before it is too late. 29 Mr Ross said once the depression is running with water, rather than cross it, some people will retreat to the higher parts of the flood island. This is partly because the depression cuts off cars within half an hour of the river breaking its banks. That creates more demands for SES crews, particularly if a big flood is on the way. Trucks should still be able to cross the depression during the evacuation period, provided the "fail safe" decision has been made early enough. 30 Another concern of Mr Cinque is due to the necessity of making a "fail safe" decision to evacuate Emu Plains. If the order is given and residents alerted, and then the storm abates unexpectedly, the order is cancelled. People are relieved, but if the storm renews and the alert is given again it complicates the emergency. People become sceptical and take longer than the critical period to accept the order and move out. 31 In Mr Cinque's experience some residents will stay to the last, and even hide in their houses and not answer the door knock to uniformed and easily identified SES crews. This behaviour occurred even when SES was conducting community awareness programs and a survey to familiarise locals about procedures in the event of a flood. With 4300 existing houses in Emu Plains to be evacuated the SES is stretched to the limit. Any additional houses especially with a cumulative potential for 950 more in the "flood island", create increased demands for services and risks to personnel under cl 32(2) (h) and (i) of Penrith LEP 1998 (Urban Land). 32 Dr Martens said that this proposal is only 2 more houses potential and against 4300 existing the additional demands and risks are negligible. 33 The experts then gave evidence about the aerial photos with computer model flood information overlaid in Exhibit 4 tab 8. It shows 1 in 100 and 1 in 200 flood information with the site clearly identified. Ignoring the PMF, and the 1 in 200 flood, it is clear that at the 1 in 100 year event, the site is more or less in the centre of the widened flows from the depression/floodway/floodrunner near the site. At that time the majority of the "flood island" is already under water. The reasons for Mr Cinque's evidence becomes clearer. 34 Whilst the existing ground levels may be about 150mm higher at the site than used in the computer model, the experts agreed that it makes little difference to the overall situation. It seems to me the general landforms near the site shown in the computer model terrain and flood hazard aerials (hazard due to water depth and flow velocity) reveal the 1 in 100 floodwaters widen out from the depression just west of the site, and the existing house on No.12 Forbes St becomes "High Hazard". The 2 new proposed lots become "Medium Hazard". The high hazard zone extends back across both Forbes and MacLean streets between the site and high land necessitating evacuation via other streets if possible. Conclusions 35 Earlier flood mapping was looked at, and although Dr Martens had found earlier documents showing the site as "Low Hazard" it is my opinion I should give the later documents greater weight. 36 In coming to a conclusion in this appeal I have had regard to one of the objectives of the LEP in cl 7.1 (h) (iii) to consider threats to life and property from floods, and to cl 32 (1) and (2) (h), (i) and to a lesser extent (f), (g) and (3). Planning is in part about avoiding mistakes of the past and producing better community and environmental outcomes in the future. Ideally in the future one would not develop a suburb on land that is in a flood way, or even in a backwater during a 1 in 100 year flood event. 37 The LEP definition of "flood liable land" is land that is inundated by a flood with an annual exceedence probability of 1%. The Penrith Development Control Plan 2006 is called up by LEP cl 32 (1). In the DCP cl 3.9 says "Generally land…may only be subdivided…where the level…is not lower than the standard flood". The standard flood is defined as the 1 in 100 year event. I accept the applicant's submission that the clause cannot be a prohibition of subdivision when the LEP allows it with development consent. But it does mean land that goes under in the 1 in 100 year flood needs close assessment before subdivision is allowed. 38 The DCP goes on to require consideration of the PMF flood in appropriate circumstances. The DCP has its own definition of Flood Liable land that includes the PMF, but this cannot over-ride the LEP definition in my opinion. This does not preclude consideration of the other provisions of the DCP that look at factors that may demonstrate refusal or approval is appropriate in individual cases. 39 I note that cl 3.1 allows new dwellings on existing lots such as those mentioned by Dr Martens. 40 Clause 3.9 applies to subdivision. I accept the applicant's submission that cl 3.9(a) cannot be a prohibition when it says subdivision will not be supported in a floodway or a high hazard area. But I do accept the respondent's evidence that in a 1 in 100 year flood the site does have at least 0.5m of water over it and it becomes a floodway. That requires careful assessment. Where land is not in a floodway, cl 3.9(d) allows subdivision where land in existing residential areas is either above the 1 in 100 flood, or where portion of the lot can be filled to 0.5m above the 1 in 100 flood level. 41 Clause 3.11 comes into play for filling, and the respondent says that the required flood study to justify that has not been done. In any case, on these proposed residential sized lots filling would be difficult and in the experts' opinions undesirable due to the adjoining houses and the diversion of water flows. Elevating any house on piers is suggested, but that would not include garages, outbuildings, landscaping, fences etc. 42 It seems to me that the on-site physical requirements of the DCP can be made satisfactory, it comes back to the LEP and DCP aims of limiting risk to life and property, and an increased demand for resources when evacuation is required. 43 The ability to subdivide this land is permissible only with consent of the appropriate authority. It is in a 1 in 100 year floodway, it is partly in High Hazard and partly in a Medium Hazard flood zone. The evidence is that the locality has special considerations in that it becomes isolated quickly just before the 1 in 100 year flood level is reached, and strategically and logistically a decision has to be made by SES to evacuate the area before it is cutoff. That evacuation is a race against the clock in an emergency due to only 7 hours official prediction being possible when it takes up to 16 hours to evacuate the area. 44 It is not sufficient to say that because there are 4300 houses in harm's way that another two make little difference and should be allowed. In this case the situation of the site on the "floor island" and the emergency procedures necessitated by that is sufficient for refusal. Added to that situation is the potential cumulative impact of the other lots that might seek subdivision or dual occupancy. 45 True the applicant submitted that if the area has to be evacuated early, then it is before the flood level reaches the High Hazard level. That seems misconceived as it only serves to show the inadvisable consequences of allowing more subdivision in this locality. 46 Sensible planning in the public interest mitigates against increasing the demand for emergency services and risk to life and property in such locations. There is already a house, tennis court and swim pool on the property, it is not sterilised by the prevention of higher density of development. 47 I have formed the opinion that the subdivision should not be allowed and therefore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits A and 3. ___________________ K G Hoffman Acting 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.