Land and Environment Court New South Wales Medium Neutral Citation: Trustees of the Roman Catholic Church for the Diocese of Lismore v Nambucca Shire Council & Northern Region Joint Regional Planning Panel [2011] NSWLEC 1346 Hearing dates: 23, 24 August, 24, 31 October 2011. Decision date: 30 November 2011 Jurisdiction: Class 1 Before: Hussey C Decision: (1) The appeal is dismissed. (2) Development consent to DA 2010/234 for a new primary school at Lot 11 DP 805157 Dudley Street, Macksville is refused. (3) The exhibits may be returned except for 3, 7, 16, 19, K. Catchwords: Development application: Primary school, flood risk, site suitability, public interest Legislation Cited: Environmental Planning and Assessment Act 1979 SEPP (Major Development) 2005, which applies because the capital investment value exceeds $5 million SEPP No 44 - Koala Habitat Protection SEPP No 55 - Remediation of Land SEPP No 71 - Coastal Protection SEPP (Infrastructure) 2007 Nambucca Development Control Plan (NDCP) 2010 Cases Cited: Hackett v Hawkesbury City Council [2006] NSWLEC 503 Primo Estates Pty Ltd v Wagga Wagga City Council [2005] NSWLEC 632 Category: Principal judgment Parties: Trustees of the Roman Catholic Church for the Diocese of Lismore (Applicant) Nambucca Shire Council (First Respondent) Northern Region Joint Regional Planning Panel (Second Respondent) Representation: Counsel Mr P McEwen SC (Applicant) Ms H Irish (Second Respondent) Solicitors Hannigans Solicitors (Applicant) Department of Planning & Infrastructure File Number(s): 10481 of 2011 Judgment Background 1This appeal is against the refusal of a development application for consent to erect a new primary school on approximately 3ha of a larger 16ha rural lot that is situated on the eastern side of the Macksville township and subject to flooding. The school is intended to replace an existing school that is situated within the township. 2The development application was lodged with Nambucca Shire Council (First Respondent) and referred for determination to the Northern Region Joint Regional Planning Panel (JRPP), which is the Second Respondent because the development is defined as an "educational establishment" and has a capital investment value exceeding $5 million. This accords with the provisions of cl 13B of State Environmental Planning Policy (Major Development) 2005. 3Council filed a submitting appearance in the proceedings. 4Insofar as a number of issues were identified for the appeal, they are summarised as follows: (1) Flooding impacts ; in terms of the flooding impacts and associated safety risks for school children and other users, with particular reference to the adequacy of flood modelling to satisfy the requirements of the Floodplain Development Manual (NSW Government 2005) - FDM. (2) Site suitability ; relative to the flood management principles in the FDM and best practice with particular reference to: (a)the vulnerability of school children (who are less able to negotiate flood waters, self evacuate or make decisions about risk); (b)the risk profile of school children when compared with the risks faced by (c)occupants of other land uses such as rural, commercial or industrial land uses; (d)the large number of occupants proposed; (e)the inadequate flood warning times; (f)the inability to safely evacuate all occupants in the event of a major flood; f. the reliance on a private evacuation plan; (g)the lack of information to verify that the emergency evacuation plan will function effectively and will safely manage the site's flood risks into the future; (h)the unacceptable reliance on additional resources of the Bureau of Meteorology, the State Emergency Service ("SES") or other emergency services personnel to ensure safe operation of the development; (i)the unacceptable reliance on additional resources of the Bureau of Meteorology, the SES of other emergency services personnel to ensure safe operation of the development; (j)the lack of evidence that the evacuation plan would be accepted by the SES; (k)the lack of consideration of flash flooding and flood events of variable duration. (3) Public interest considerations. The site 5The subject site is described as Lot 11 DP 805157 Dudley Street, Macksville. It has a total area of 16.09 ha and the proposed school comprises approximately 3 ha (150 m x 200 m) located at the eastern end of Dudley Street as shown on Attachment A. 6The proposed school site is situated within a rural property located on the fringe of Macksville, approximately 730m east of the Pacific Highway, which runs through the centre of town. The site has direct frontage to Dudley Street, which links with East Street within the residential area. There is a relatively large mainly open stormwater drain adjacent to East Street that is known as the 'Town Drain'. 7Rural properties are located south and east of the site. Two playing fields and a small primary school, comprising a total of twenty-four students are located immediately west of the site. Further west, there are residential properties and the commercial area of Macksville. There are also residential properties along River Street located north of the site. The proposal 8During the course of the appeal, the proposal was amended and now comprises development consent being sought for construction and use of a new school campus to cater for about 400 students and 40 staff. The development application includes the following: * administration/staff building; * communal hall, canteen, music room & out of school care room; * 14 classrooms/learning areas; * library; * maintenance shed; * 150 m extension to Dudley Street; * bus bay and internal access road; * two car parks; * one large covered outdoor learning area (COLA) and other smaller COLAs; * two courtyards; * hardstand multipurpose court; and * associated infrastructure. * a total gross floor area of the development is approximately 2,702 sq m. 9All school buildings, excluding the communal hall, were initially to have a minimum floor level of 3.85 m AHD. The main floor level of the communal hall was to be at 4.35 m AHD. The hall will also contain a stage (at approximately 5.15 m AHD) and a small platform (at approximately 6.3 m AHD). I note that the subsequent flood modelling required the raising of these levels and this would be subject to the amended plans and conditions. 10The site was initially to be filled to a depth of between 500-700 mm and all buildings will be constructed on piers. The finished floor level of each building will be between 1300-1900 mm higher than the finished ground level. The applicant indicated that about 20,000 cu m of fill would be required to achieve the design levels. 11It is also intended to raise the height of Dudley Street to 2.5 m AHD, and to raise the pedestrian accessway from the school to the evacuation route, so that it is at or above 2.5 m AHD. 12The school is to operate under the provisions of Flood Evacuation Plan (FEP), which has the effect of reducing the number of students to 330. Planning controls 13The primary control in this matter is the Nambucca Local Environmental Plan (NLEP) 2010, under which the site is within the RU - 1 Primary Production zone. As the proposal is defined as an " educational establishment " it is permissible on the basis of being an innominate development that may be carried out only with development consent. 14The following controls also apply: * SEPP (Major Development) 2005, which applies because the capital investment value exceeds $5 million. * SEPP No 44 - Koala Habitat Protection * SEPP No 55 - Remediation of Land * SEPP No 71 - Coastal Protection * SEPP (Infrastructure) 2007 * Nambucca Development Control Plan (NDCP) 2010 15Apart from these statutory controls that require consideration, reference was made to a number of relevant flood studies for the area, which include: * The 1994 Lower Nambucca River Flood Study * The 1999 Lower Nambucca River Floodplain Management Study * Floodplain Risk Management Plan (FRMP) - dated February 2001 and adopted on 17 February 2005 * Nambucca Shire Local Flood Plan - A Sub- Plan of the Nambucca Shire Local Disaster Plan (DISPLAN) - July 2007 and to be reviewed by July 2012. The evidence 16Detailed evidence in the form of three joint engineering reports were presented by: * Mr D Bewsher, Hydraulic engineer for Second Respondent. * Dr M Jempson, Hydraulic engineer for Applicant. 17In addition to this, other evidence was presented by: * Mr S Merlino, who prepared a detailed Flood Evacuation Plan (Exhibit K). * Mr V Butler, Principal of St Patrick's Primary School. * Mr C Innes, Manager of John Heelis P/L (Local bus company). Planning framework 18It is apparent from the evidence, particularly the FRMP that the Macksville area has been subject to regular flooding events from the Nambucca River. Accordingly, the FRMP was prepared in line with the NSW Floodplain Management Manual and it provides a useful starting point for the consideration of the merits of the proposal. 19The Figure 3 - Flood Map shows the site is within the "High Hazard - Flood Fringe" area. "High Hazard" is defined as " possible danger to personal safety, evacuation by trucks difficult; able - bodied adults would have difficulty in wading to safety. Potential for significant structural damage to buildings ". 20The FRMP also contains a Flood Risk Planning Matrix, which considers the various risk categories for different types of development. Whilst it makes no reference to ' Special Purpose Facilities ' or ' Schools ', nevertheless any development categorised as ' Essential Community Facilities ' is considered an unsuitable land use in the high risk areas. 21Consequently, the applicant submits that the proposal could be categorised as a ' new commercial or industrial ' land use, whereby clause 3.2.12 then recommends that the individual owners/occupiers of all existing industrial and commercial buildings below the Flood Planning Level (FPL) should be encouraged to prepare a flood evacuation plan. 22In these circumstances, the applicant has prepared and relies on Mr Merlino's 'Flood Evacuation Plan'. However, the council submits that the commercial/industrial categorisation is not appropriate because commercial developments are defined as " shops, offices, clubs, recreation facilities and the like " and industrial development is defined as " industrial related activities including factories, engineering workshops, warehouses and the like ". Therefore the submission is that a school does not fit into this category. 23In conjunction with this, the NLEP also contains specific controls relevant to the subject development. Clause 2.3(2) of NLEP 2010 (relating to zone objectives and Land Use Table) applies so that the Court as consent authority must have regard to the objectives for development in the zone when determining a DA. The Land Use Table at the end of Part 2 of NLEP 2010 provides that the objectives of Zone RU1 - Primary Production are: + To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. + To encourage diversity in primary industry enterprises and systems appropriate for the area. + To minimise the fragmentation and alienation of resource lands. + To minimise conflict between land uses within this zone and land uses within adjoining zones. 24The objectives of cl 5.5 of NLEP (relating to development within the coastal zone) include " to implement the principles in the NSW Coastal Policy, and in particular to recognise and accommodate coastal processes and climate change ": Clause 5.5(2) of NLEP applies whereby the Court must not grant development consent to development on land that is wholly or partly within the coastal zone unless it has considered, " the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality taking into account the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and the location, and the bulk, scale, size and overall built form design of any building or work involved, and the cumulative impacts of the proposed development and other development on the coastal catchment." 25Clause 7.3(3)(a) of NLEP relating to flood planning is particularly relevant and provides that the Court must not grant development consent to development on land unless it is satisfied that the development is compatible with the flood hazard of the land. Clause 7.3 then contains the following objectives: (1 ) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 26For the consideration of these matters, the provisions of the Floodplain Development Manual (FDM), which encourages a flexible merit based approach to new development assessment are also relevant, particularly the following aspects: * cl 3.6 provides: It should be noted that a private or site specific flood plan (see Section N7) for the proposed development is not an appropriate measure to rectify adverse impacts or to manage the consequences of inappropriate decisions. * Section D5.7 provides that the SES representative must not be requested to: approve private or site specific flood plans or flood emergency response plans prepared for proposed developments (see Section N7)); or approve incorporation of private or site specific flood plans prepared for proposed developments into the local flood plan; Private or site specific flood plans or flood emergency response plans (Section N7), written for specific developments and separate from the local flood plan, are ineffectual and should not form the basis of development consent. Inclusion of specific development proposals in the local flood plan is limited to those assessed and incorporated in the adopted flood risk management plan. * Section L5 provides: It should be noted that evacuation measures proposed in private or site specific flood plans (see Section N7) for individual developments, outside the development types considered appropriate in the management plan, is not an appropriate measure to rectify `adverse impacts, to manage the consequences of inappropriate decisions or to override`the management plan. Therefore private or site specific flood plans should not form the `basis for development consent. * Finally, Section N1 provides that " The matter of private or site specific flood plans prepared for individual developments, businesses or households, is covered in Section N7 " and states: * N7 Private Flood Plans Private or site specific flood planning refers to the preparation of arrangements aimed at dealing with the impact of flooding on a particular business or household. The SES supports the idea of owners and occupiers of premises in areas of flood risk having a plan for what they should do to prepare for and respond to flooding. To this end, the SES promotes the practice in community and business education activities and continues to develop information to guide the community when they choose to prepare a private flood plan. * N7.1 Limitation of Private Flood Plans Any form of response planning, but private planning in particular, is unreliable as a long term risk mitigation measure . This is because all plans must be prepared using assumptions about conditions (environmental and organisational) that are expected to apply in the future and which may prove to be wrong or at least very different to the actual event. Floods are highly variable infrequency and severity and this influences two critical planning assumptions, available flood warning time and likely consequences. If, in an actual flood, there is a significant variation between the assumptions and reality, even a well written plan may fail unless intelligent on-the-day adaptation is implemented. Implementation of a plan depends explicitly on a thorough understanding of the risk and of the roles and responsibilities of participants. To experienced emergency managers these are areas well known for their uncertainty and the SES trains and practices continually to minimise their impact. Businesses and households will have a much lower capacity to undertake the necessary training and practice and so the plans they own will be much more prone to failure. N7.2 Private Plans as a Development Consent Condition + In a naive attempt to provide some sort of protection to council when it approves a DA in a flood risk area, some councils are imposing development consent conditions requiring site specific plans. Some consent conditions require the applicant to seek SES endorsement of their plan. Taking into account the preceding discussion about limitations of private plans, the SES is opposed to this approach and some specific points related to this policy are set out below: + Conditioned private flood plans will only be prepared to secure the development consent, not because of a genuine commitment to taking some personal responsibility for risk management. Unless a plan is owned, understood, and practised by the owner/occupier, it will almost certainly be forgotten and fail to be effective; + There is no workable process for quality control of private plans and the SES, having no resources available to service such a huge task across NSW, has no choice other than to refuse requests by an applicant for the SES to review their plan; + The SES is aware of a case where a private plan has been submitted to the LEMC in an attempt to circumvent the SES policy. The legal status of endorsement of a private plan by an LEMC, against the policy of the legal combat agency for flood (the SES) has not been tested; and + Councils should be aware that the issue of private flood plans has been tested in the NSW Land and Environment Court and the policy of the SES has been recognised as valid. Nambucca Shire Local Flood Plan (DISPLAN) 27This plan comprehensively covers preparedness and operational responses to flooding events in the subject area. The flooding 'threat' is noted in Annex A in the following terms " Serious flooding can occur within the Nambucca Council area on the Nambucca River and its major tributary Taylors Arm... " 28Other references to the Nambucca River include: * The Nambucca Valley comprises the catchment areas of the Nambucca River, Taylors Arm and Warrell, Newee, Watt and Bellwood creeks. The total catchment area, to the mouth at Nambucca Heads, is approximately 1,400 square kilometres. Above Macksville the Nambucca River divides into two arms which rise in the extremely rugged fringe of the New England Plateau into which they have cut deep and precipitous gorges. * Tidal influence extends upstream almost to Bowraville on the Nambucca River and to Utungun on Taylors Arm during low to average flows. On Warrell Creek the tidal influence extends beyond Scotts Head. * The easterly part of the catchment consists essentially of the deltaic plains of the Nambucca River and Warrell Creek, together with island hills on the plains and low bounding divides. Here, much of the land is below 10 metres and has been constructed from fluvial and estuarine deposition. This low-lying land contains areas of swamps and ponds and is subject to frequent flooding. * Floods are generally of short duration [but roads may be closed for several days] and warning times are short, being measured in hours rather than days. * In addition, high-intensity, short-duration convective thunderstorms which occur during the summer months may briefly cause local flooding, flooding on minor creeks and the surcharging of urban drainage systems. Such flooding is 'flash' flooding, occurring with little or no warning and having no significant impact on water levels in the Nambucca River itself. 29The flood history is set out in para 15 as follows: 15. The present gauges at Bowraville and Macksville were not installed until 1959 and 1963 respectively, but peak flood heights have been established at both centres for events going back to the late nineteenth century. These are listed in the following tables, for floods reaching 2.1 metres or greater at Macksville. Table 1, Historical flood levels above 2.1 metres at Macksville Gauge Date Year Date Year Mar 1894 2.35 Apr-1962 2.95 May-1913 2.55 Apr-1963 2.45 May-1921 2.5 May-1963 3.2 Jul-1921 2.95 Mar-1964 2.4 Feb-1929 2.35 Jun-1967 2.6 Mar-1946 2.7 Jan-1968 2.2 May-1948 2.5 Oct-1972 2.5 Aug-1949 2.5 Mar-1974 2.95 Jun-1950 3.4 May-1977 2.65 Mar-1953 2.8 May-1980 2.1 Feb-1954 3.15 Jul-1985 2.16 Nov-1959 2.65 Jul-1999 2.14 17. The flood of record occurred in 1950 when the reported level was 3.40 metres AHD (1 :90 ARI) at the Macksville Gauge. Flood waters spread through the commercial centre around Princess Street, Wall ace Street and Mackay Street to recorded depths of up to 0.6 metres over floor levels. This frequency flood would also have affected residential areas of the town along River Street, East Street and the Pacific Highway near Macksville Park. 30The DISPLAN refers to 'Design Flood Levels' and 'Extreme Flooding' in the following terms: 18. Design flood heights for various Annual Exceedance Probabilities are' as follows: Annual Exceedance Probability Bowraville Macksville 5% 10.5m 2.95m 2% 11.3m 3.35m 1% 11.8m 3.55m Extreme 6.3m Notes 1. Gauge height (metres AHD) at Bowraville (Lanes Bridge) (205006). 2. Gauge height (Metres AHD) at Macksville (205416). 3. Note that the difference between the 5% AEP and the 1% AEP floods at Macksville is less than 1 metre Extreme Flooding 20. On rare occasions, flooding of extreme proportions must be expected. It is characteristic of extreme floods to reach much greater heights than earlier events and flood areas with no previous history of flooding. Moreover, such floods are generally both faster to rise and more dangerous in terms of depth and velocity than previous floods. The extreme flood on the Macksville gauge has been estimated to peak at 6.3m AHD. Such a flood would occur only very rarely, perhaps only once every 10,000 years or more. Floods lower than this but much higher than the record flood of 1950 are also possible and indeed are much more likely to be experienced by current residents than the PMF. Flood modelling 31Dr Jempson undertook a number of flood modelling scenarios utilising three separate TUFLOW models. The results of this modelling were shared and reviewed by Mr Bewcher. 32It is apparent from the engineer's evidence that there are a number of complexities in ascertaining flood behaviour at the site. This is dependent on the different assumptions about rainfall behaviour and the initial conditions at the onset of the flood event, whereby flooding may originate from the river or from the local catchment. 33Another part of the complexity is that whilst the site is accessed directly from Dudley Street, this is connected to East Street, along which part of the main 'Town Drain' alignment follows. I understand from the evidence that localised flooding regularly occurs along this drain. It is of particular concern because the proposed evacuation route depends on safe access via Dudley and East Streets. 34Apart from The Town Drain, the site flooding is also influenced by the presence of three large wetlands (Gumma Gumma Swamp) located in close proximity to the south - east, which act as detention basins. Whilst a catchment of this size would be expected to have a response time of a few hours, Dr Jempson's modelling has shown these wetlands extend the catchment response time to 48 hours. The initial water level assumed in these 'basins' at the onset of flood producing rains can influence the resultant flood behaviour in the Town Drain. Dr Jempson's modelling has assumed the water level in these areas as that at the time the ALS was undertaken. However, Mr Bewsher tested the sensitivity of the flood behaviour in the Town Drain to higher initial water levels ranging from 2.1m to 2.7mAHD in these wetlands. 35Consequently Dr Jempson refined his modelling using a finer grid to better assess the behaviour of the swamp. This now shows that that under various size river floods the flooding regime at the school site will be different. In slower rising river floods it is likely that Dudley Street will be first inundated by backwater flooding from Gumma Gumma Swamp. In faster rising floods backwater flooding from Gumma Gumma Swamp will approach the school site during the rising stages, but Dudley Street may be inundated first by river water overtopping the river banks north west of the site. 36Mr Bewsher says that this places a new complexity on the flood risk management issues associated with the site. This is because whilst the backwater flooding from the swamp would be relatively gradual and the approach of this water could be observed by occupants of the school site, overtopping of the river bank could produce relatively sudden inundation and could take occupants of the site by surprise (assuming such occupants had not evacuated). 37Dr Jempson agrees that overtopping of the river bank could produce relatively sudden inundation of Dudley Street, however he notes that under the evacuation plan the school would be evacuated before this would occur. In the design event modelling undertaken by Dr Jempson he observed that at the time when Dudley Street was overtopped the level at the Macksville gauge would be approximately 3.7m. 38Consequently Mr Bewsher's opinion is that this improved understanding of flood behaviour indicates the flood hazards at the site are worse than he originally considered. He says that irrespective of inundation from the local catchment of the Town Drain, the modelling and a review of the ALS data shows that once the river levels rise above 2.6m AHD river water will overtop River Street and begin to back up through the Town Drain. Under this flooding scenario the potential exists for the low points on East and Boundary Streets (i.e. where the road crest levels are about 2.5m AHD), to be inundated. 39Dr Jempson agrees that the evacuation route beyond Dudley Street is likely to be overtopped by flood waters from the river before Dudley Street itself is overtopped. For this to occur the river level at the Macksville gauge would be higher than the proposed 2.5m trigger level and so under the evacuation plan the school would be evacuated prior to overtopping of the evacuation route from river flooding. There would also be a time lag between the river reaching 2.5m and overtopping of East Street, which would provide additional time for evacuation. Under the range of flood scenarios modelled the time lag from when the river reaches 2.5m at the Macksville gauge and overtopping of East commences is 1.8 to 3 hours. The time lag would vary between floods and will be dependent on factors such as the rate of rise of the flood in the river and the water level in the Town Drain (at the time overflow from the river into the Town Drain commences). In the modelled scenarios the water level in the Town Drain was in the range 2.1 to 2.3m AHD. 40In response Mr Bewsher says that occupants of the site who for whatever reason delay their evacuation and choose to rely on local visual clues (i.e. water level in Gumma Gumma Swamp or river water overtopping the banks north of the site) to initiate their evacuation, could become trapped as they may be unable to evacuate past Dudley Street. In his opinion, this also contributes to an increased flood hazard at the site 41Aside from this, the assessment of the suitability of the site for the proposed development also depends on the estimated flood levels at the site. Considering the change in levels produced in the various flooding scenarios, Mr Bewsher said that a cautious approach should be adopted and it is likely that the 100 year design level would be higher than council's 1994 levels and also that the PMF would be considerably higher than that study. 42Evidence of these changes is shown in Dr Jempson's updated modelling as follows: * the 1 in 100 Year ARI event from Council's adopted 3.55m at the Macksville gauge increases to 4.6m (a 1.05m increase), translating this to 4.26m at the site (an 860mm increase), * the 1 in 50 Year ARI event from Council's adopted 3.35m at the Macksville gauge to 4.03m, translating this to 3.63m at the site (described as a 300mm increase), * the 1 in 20 Year ARI event from Council's adopted 2.95m at the Macksville gauge to 3.05m (a 100mm increase). 43Accordingly, Dr Jempson considered that the minimum floor level of school buildings should be raised by a similar amount as the increase in the 1 in 100 Year ARI event at the site (from 3.85m to 4.7m), noting that there is only a "climate change" freeboard of 450mm (and no other freeboard) in the proposal's existing floor levels. Dr Jempson said that floor levels could be raised by increasing the depth of fill, or increasing the height of finished floor levels above finished ground level, or both. 44In this regard, Mr Bewsher considered that the usual 0.5m freeboard should also be provided so that (if the existing floor level of most school buildings is 3.95m), the floor level of school buildings other than the communal hall should be raised to 5.3m. Flood Evacuation Plan (FEP) 45During the appeal there was a considerable amount of discussion regarding the Flood Evacuation Plan (FEP) prepared by Mr Merlino. It details the proposed operations of the school and estimates that the student modes of transport are: * 82% by bus * 10% by private transport * 8% by foot or bike. 46The FEP notes that the SES is the designated Combat Agency for controlling floods and to coordinate the rescue, evacuation and welfare of affected communities. Accordingly, the SES issues regular flood warnings and local flood advice, which is to be monitored by the principal. 47There are also weather warnings from the Bureau of Meteorology, which works closely with the SES. The FEP says that monitoring the issued forecasts and warnings during rainfall events will be critical to the success of the overall flood emergency management for the school. Key warnings which the school Principal and safety delegates must look out for include ' Severe Weather Warnings' and 'Flood Warnings for the Nambucca River at both Bowraville and Macksville. This information is to be obtained from mobile contacts from SES. 48The FEP includes a form of risk assessment based on the number of days when the school is free of students and estimates the chance of flooding events in the various ARI storm events. 49In the circumstances of an evacuation, the FEP provides: On an estimate that 2 buses are available, each capable of carrying 50 people, an evacuation rate of about 400 per hour may be achieved, allowing the school to be completely evacuated in approximately 1 hour. This time is dependent on the evacuation being orderly and that all parties know what to do, where to go and what to take. Such actions will need to be accounted for in the School's overall emergency management plan. It is noted that each afternoon almost the entire school population leaves within a similar time so vacating the school in one hour is achievable. In addition to the 1 hour required for evacuation, another 1 hour should be allowed for response time to the warning, implementation and notification to staff of the evacuation procedures and marshalling the students. These times are significantly less than the likely warning times that will be provided under current State Emergency Service (SES) and Bureau of Meteorology (BoM) arrangements. 50The principal evacuation trigger for the closure of the school is now " any forecast for a flood level of 2.5m or greater at the Princess Street Macksville gauge ". Adoption of the principal trigger level is assumed to " allow a window of 7.3 to 8.6 hours in which to evacuate the school should a warning be issued that the predicted flood level at the gauge (there will not be a prediction for the site) will approach or exceed 2.5m ". An additional evacuation trigger is now " the entry of water from the swamp across the southern property boundary ", in respect of which a time lag of 2.6 hours is assumed between " 2.5m at the gauge to 2.5m at Dudley Street ", in relation to a 1 in 100 Year ARI design event, " b ecause the floodwaters must travel down the Nambucca River from the Macksville Gauge, then back up Gumma Gumma Swamp to the school site and Dudley Street ". 51However these triggers would require some adjustments to achieve consistency with Dr Jempson's more recent modelling. This would marginally reduce evacuation decision timeframe. 52The response and responsibilities under the FEP for the Principal and/or delegated staff member are: * monitor weather forecasts and rainfall and flood forecasts issued by the BoM, and SES' flood warnings and local flood advices, local gauge readings and flood conditions during all rain events (this responsibility is described as " critical to the success of the evacuation plan and the overall flood emergency management for the school "), * observe the water levels in Gumma Gumma Swamp (the additional evacuation trigger), and * monitor the flood events as they unfold. 53In the event of a flood, the FEP requires the Principal and staff to: * advise the SES, * check the availability of buses, * give notification of school closure, * give notification of pick-up arrangements at the High School, * ensure that signs are erected, * ensure that emergency equipment is marshalled, * ensure that school activities are postponed, * inspect the free play area to ensure that all students are accounted for, * undertake evacuation (presumably including staff assisting at the pick-up area if parents are collecting children), assisting with staff vehicles, in approximately 1 hour, * ensure that any moveable objects are secured, * ensure that power, water and other utilities are turned off. 54Insofar as consideration was given to a flood event which restricted or prevented all students/staff being evacuated, then the proposal is to include an " emergency platform " (flood refuge) accessible from the communal hall by " attic ladder " from the rear of the stage, behind a feature wall, to hold about 15 people. This flood refuge at 7.75 AHD assumes a PMF of 6.3 AHD for the purposes of this small (" 24sqm approx ", 2 m wide) platform. Conclusion 55Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. 56The threshold issue in this appeal concerns the flooding risk for the school use due to the location of the proposed school on a recognised floodplain. This fact is identified in a number of flood and emergency response studies. Interestingly, I understand that the flooding situation is currently being reviewed by way of updated modelling in the SKM "Nambucca Heads Flood Study" - April 2011. 57However, for this appeal Dr Jempson undertook a number of detailed modelling scenarios relative to the site in conjunction with Mr Bewsher reviews. They are substantially agreed on this methodology, although they recognise that the outcomes are dependent on the input assumptions, which can result in material differences. Consequently, I am satisfied to rely on the modelling results. 58But this modelling has then identified significant differences in the estimated flood levels and behaviour compared to those currently expressed in the local flood management documents. In particular, it is apparent that the flood levels will be higher and flood behaviour unpredictable due to the localised effects of variable rainfall in the catchment, the effects of the Town Drain and influence of Gumma Gumma Swamp. 59One of the critical outcomes from the modelling is to establish appropriate flood planning levels (FPL) at the site to realistically assess flooding implications. Insofar as the applicant originally proposed the floor levels be about 3.85m AHD, the modelling indicates that this should now to be at least 4.7m AHD (including 450mm freeboard for climate change) according to Dr Jempson. 60However, Mr Bewsher says there should be a further increase of 500mm to allow for usual 'freeboard allowance' and this would result in a FPL of 5.3m AHD. This has the overall effect of requiring the buildings to be raised significantly by about 1.5m from that initially proposed. 61In assessing the potential flooding impacts then, I note that Dr Jempson's conclusions were substantially focussed on the detailed modelling outcomes, rather than their application to assess the suitability of the site for the development. He did not express an opinion regarding the suitability of the site for the development. 62Against this, Mr Bewsher has extensive experience in the preparation of strategic flood studies and additional experience in the preparation of evacuation plans and expressed his opinion regarding the site suitability. 63Under these circumstances I am satisfied to rely on Mr Bewsher' ultimate opinion that the site is unsuitable for the proposed school use on the basis that: * Reliance on the FEP is inappropriate. * The updated flood levels indicate that the use of the site will be compromised because the 1:5 ARI event is higher than the lowest part of the site, which is likely to result in regular inundation of the free play area and other parts of the site. * The site is within a tidal influence due to its proximity to the river whereby a king tide of 1.1m could inundate the site. * The site being categorised as a high hazard floodplain and subject to complex flooding scenarios making it unsuitable for a land use for a school accommodating up to 330 children. 64As noted, one of Mr Bewsher's principal objections to the proposal is its reliance on the FEP. This is notwithstanding his acknowledgement that if the application is otherwise approved, the FEP could be workable. However, in assessing development applications on flood - liable land, reference is often made to the 1:100 ARI event. 65In the subject circumstances, Mr Bewsher expresses concern that modelling results represent significantly larger flood risks than initially envisaged due to the higher flood levels and unpredictable influence of the Town Drain and Swamp. He predicts that in the 1:100 ARI event, the evacuation route will now be about 1.8m under water and that in the likely event of the river bank overtopping, this will affect the evacuation route because there will be a significant depth of water over East Street. 66Whilst I understand that the FEP adopts an evacuation trigger for closure of the school of "any forecast for a flood level of 2.5m or greater at the Princess Street Macksville gauge", which allows about 7 to 8 hours warning to complete an evacuation, this allowance would be reduced to comply with the latest modelling. 67Notwithstanding this, I have serious concerns about the additional responsibilities in the FEP as outlined previously, to be imposed on the Principal and delegated staff members for monitoring flood events and supervising evacuation. This is particularly the case with the unpredictable flood scenarios, which could be from the river or the swamp, which would require constant observation and experienced judgement, particularly when 330 students and other staff are involved. 68I also note that Mr Innes from the bus company could provide advise about local flooding events. Whilst I accept this would be useful, I have some reservations about the integration of his advise into the proposed school overall evacuation decision making procedure, particularly taking into account the position and responsibilities of the SES. 69In this regard the Court was referred to the matter of Hackett v Hawkesbury City Council [2006] NSWLEC 503, wherein the Court considered that the following evidence presented in the flood evacuation plan imposed extraordinary responsibilities on the managers of the tourist facility to monitor local flooding and facilitate evacuation: " In my opinion, this is unusually onerous and a negative aspect of the proposal, indicating the site/buildings unsuitability for the proposed use... ". At [79], the Court recognised that " any consent granted would run with the land and not be tied to a particular owner ". 70Accordingly, I think it appropriate in the current circumstances to follow this finding and I give little weight to assurances given by the current Principal of St Patrick's primary school and/or the evidence of a bus driver. From my assessment of the evidence, I do not consider the Principal fully appreciated the evacuation responsibilities and necessity fully comply with the FEP details. 71Another concern is that the number of students relying on the bus was found to be somewhat uncertain and based mainly on the issue of bus passes. Therefore additional care would be required to ensure all students were evacuated by bus, including those who don't regularly use the bus. Apart from this, there are no controls on private vehicles arriving at the site to collect children and I consider this is likely to cause traffic issues along the Dudley Street evacuation route. In my assessment, this is another negative aspect of the proposal. 72Submissions for council were also made regarding the findings in Primo Estates Pty Ltd v Wagga Wagga City Council [2005] NSWLEC 632 wherein the court took into account the limited resources of the SES in a major flood event and did not consider it orderly planning to allow the development, placing further demands on the limited resources. Again. It seems reasonable to follow this approach because reference to DISPLAN shows the extensive list of organisations that would be involved in parts of flood evacuation and safe holding areas, including some 17 schools. In these circumstances, I am satisfied that any reliance on a private evacuation plan should be endorsed by the SES but that is not the case. 73In the ultimate I rely on Mr Bewsher's opinion and I am satisfied that determining weight school be given to the provisions of the Floodplain Development Manual wherein Section N7 plainly discourages granting development consents subject to private evacuation plans. In this regard I accept that the intent of the FDM is not to sterilise flood- liable land, but in the subject circumstances, I do not consider the approval of a 330 student primary school in a high hazard flood area is appropriate or in the public interest. 74However, the Court is also required to consider the relevant controls in the NLEP. Insofar as I accept that an appropriately designed school could satisfy the Zone RU 1 objectives, nevertheless I do not consider this proposal is consistent with the s7.3 flood planning objectives. 75In particular, the s7.3 (1) (a) objective to " minimise the flood risk to life and property associated with the use of land ", is not satisfied by placing a 330 student + staff school on vacant rural land situated in a high hazard floodplain. Furthermore, the evidence, I then do not consider this development reasonably satisfies the requirement of s 7.3(3)(a) for compatibility with the flood hazard category of the land. In this regard, I give some weight to the provisions of the Flood Risk Planning Matrix in the FRMP, which does not include educational establishments within the high risk areas. Accordingly, I do not accept the applicant's submission that the proposal be categorised as a 'commercial' or 'industrial' development. Court orders 76The Court orders that: (1)The appeal is dismissed. (2)Development consent to DA 2010/234 for a new primary school at Lot 11 DP 805157 Dudley Street, Macksville is refused. (3)The exhibits may be returned except for 3, 7, 16, 19, K. R Hussey Commissioner of the Court ATTACHMENT A 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. Decision last updated: 01 December 2011 * Policy and Procedures * Accessibility * Contact Us * Website last updated: 21 June 2023