In Bethune and Western Australian Planning Commission [2019] WASAT 18 the applicant, Bethune, sought to overturn decisions by the Western Australian Planning Commission and the State Administrative Tribunal refusing his application to subdivide his block that lay on the Swan River floodplain.

Mr Bethune’s wanted to subdivide the block so that the existing house would be on one lot, the second lot would be available to build another home.  The area was zoned residential and each block would meet the minimum size for a home block.  In short the proposed subdivision was ‘appropriate under the planning framework’ ([3]).  The problem was that the property:

… is entirely within the Swan River floodway (floodway) and affected by major flooding.  The site is one of 15 lots which are zoned ‘Residential’ … which are located entirely or partially within the floodway, of which seven have the potential to be further subdivided, having regard to the minimum site area…

The application was rejected by the Planning Commission and again by the State Administrative Tribunal.  In this case Mr Bethune sought a review of the Tribunal’s decision.  The review was conducted by a judicial member (ie a judge) and was limited to questions of whether or not the tribunal had made a mistake of law.  Mr Bethune argued that the Tribunal made seven errors of law.  The judicial member Parry J rejected all those grounds and dismissed the application for review.  Of interest to readers of this blog was the finding by the Commission and the Tribunal that the development should not be permitted due to the risk to residents and rescuers in the event of the inevitable flood.

One argument of the applicant was that the relevant state government policies ‘do not specifically contain the words “risk”, “hazard” or “flooding”’ ([23]).  The Tribunal member, Ms Moore, when rejecting the application for development said:

Notwithstanding whether the issue of risk to people, property and emergency personnel is a factor relevant to the desirability of subdivision in a floodway is expressly contained within the policies referred to by the planners or not, the [T]ribunal is satisfied that this is a planning issue that is a relevant factor in the determination of this application.

The stated policy objective of ‘facilitating development which achieves appropriate community standards of health, safety and amenity’ meant that the ‘issue of risk and hazard, particularly considering risk to future residents and emergency personnel’ was a relevant consideration ([23]).  Evidence of the risk to residents and emergency personnel came from Mr Munday, the manager of the Bassendean State Emergency Service and Mr Pumphrey, District Officer for Intelligence Management at the Department of Fire and Emergency Services. The Tribunal concluded (at [29]):

… that in this case it is inappropriate to create additional lots that would facilitate an increase in the number of properties and, consequently, the number of people living in this floodway and exposed to the risks and hazards enumerated by Mr Munday and Mr Pumphrey in their evidence. It will also increase the risk to emergency personnel as an increase in residents give [sic] rise to an increase [in] the possible numbers of rescues of those residents.

The respondent submits as a separate issue that approval of the proposed subdivision will set an undesirable precedent.  The [T]ribunal is satisfied that there are six lots that are factually undisguisable [sic] from the subject site and that, if this application was allowed, it would be likely that these lots would also be able to be similarly subdivided and, consequently, this would further increase the risk to future residents and emergency personnel.  The [T]ribunal accepts that allowing the proposed subdivision would, in this case, set an undesirable precedent.

With respect to the judicial review it was argued that there was insufficient evidence as to the risk from flooding. Parry J said (at [73]):

There was clear and cogent evidence before the Tribunal in relation to the risks to residents and emergency personnel associated with a flood event.  That evidence was largely agreed between Mr Munday and Mr Pumphrey.  It was therefore open to the Tribunal to find, on the evidence, that the proposed subdivision would increase the risks to residents and emergency personnel and to determine, in part on that basis, that the subdivision application should be refused.  In the circumstances, there was no error in the Tribunal’s assessment of the risks associated with a flood event.

Prevention is better than cure

With seven blocks on the river front large enough to subdivide, granting this application would have set a precedent for those other landowners.  It was not an issue of one more house on the floodplain but potentially seven, all at risk from inundation in a 1:100 year flood.  Taking into account the risk to the property owners and their potential rescuers the development would not meet the objective of ‘development which achieves appropriate community standards of health, safety and amenity’ (emphasis added).