McBurney v Penrith City Council [2014] NSWLEC 1100

Land and Environment Court New South Wales

Medium Neutral Citation: McBurney v Penrith City Council [2014] NSWLEC 1100 Hearing dates: 8 - 11 April 2014 Decision date: 28 May 2014 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is dismissed. (2)Development consent to DA12/0308 for the construction of a split-level dwelling at 265 Seventh Avenue, Llandilo is refused. (3)The exhibits may be returned except for 1, 4, 5, 8, A, E and F. Catchwords: DEVELOPMENT APPLICATION - Dwelling house in flood prone land, risks associated with high hazard floodway, unacceptable risks to persons and property, evacuation plan Legislation Cited: Penrith Local Environmental Plan 2010 Development Control Plan 2010 Floodplain Development Manual Cases Cited: Pittwater Council v A1 Professional Tree Recycling Pty Ltd Category: Principal judgment Parties: Adam John McBurney (Applicant) Penrith City Council (Respondent) Representation: John S Gibson & Associates (Applicant) Sparke Helmore (Respondent) File Number(s): 10677 of 2013

Judgment

Background 1This appeal is against council's refusal of a development application for the construction of a split-level dwelling at 265 Seventh Avenue, Llandilo. The site is situated within the South Creek floodplain and is liable to flooding. 2In summary the contentions are: * The proposed development should not be approved because it is located within the floodway and any obstruction caused by the new dwelling could restrict flows and cause adverse impacts on other properties in the area. * The site is within a high hazard area where the risk to persons and property is unacceptable and likely to place additional demand on emergency services.