In an earlier post, Building risk (June 4, 2022) I discussed a case where the NSW Land and Environment Court approved a residential development despite the Council’s concerns about the flood risk.  In Queensland, the Planning and Environment Court of Queensland made a different decision in Nl Varsity Nominees Pty Ltd v Gold Coast City Council [2022] QPEC 29.

In this case the council refused an application to build ‘a high-rise retirement village’.  The proposal was ([1]-[2]):

… for the construction of a 17-storey building on the bank of, and slightly overhanging, Lake Orr. It is to include 120 units of varying sizes with the lower floors being car parks… 

The Council’s grounds for refusal centre mainly on the fact that the land is flood affected from the Nerang River and access to it is extremely hazardous during relevant flood events. 

Mitigating risk comes at a cost and may conflict with other policy objectives. Foerster, Macintosh and McDonald say:

Adaptation to climate change involves making choices about the multiple, interacting impacts on current and future interests and values. These interests maybe public or private, and economic, social or environmental. Where values conflict, decision-making will involve trade-offs and an explicit or implicit prioritisation of one set of values over another’ (Footnote 1).

The court had to consider a number of trade-offs including the economic need ‘for retirement facilities within the agreed economic catchment’; and the community of ‘general benefits, including greater choice for the public and better community facilities in the surrounding public areas’ ([16]). 

I am not going to discuss His Honour’s assessment of the all the competing demands and interests. This discussion will be limited to the flood risk. The council was concerned that the development ‘will introduce more than 200 older people into a known flood hazard area …’ and it ‘adopts a “shelter in place” response which the Council says is inappropriate’ ([2]). The applicant argued that the residential apartments were located on or above the fourth floor ‘above all possible flood levels’ ([8]).

Kent DCJ referred to the Flood Overlay Code. He said (at [10]):

… the Code aims at overall outcomes avoiding or lessening the adverse impacts of flooding with development located, designed and managed to mitigate the risk to life and to property. There should be no extra burdens on counter-disaster response efforts and best practice approach to flood plain management should be achieved and maintained.  There should be no increase in the level of risk to life; undue exposure to flood hazard should be avoided and developments must demonstrate that sufficient access or egress will be available to enable evacuation during a range of floods, up to and including the designated flood… Development in natural hazard areas should only occur if it is located, designed and managed to mitigate the risk to life and property.

The Council (at [49]) identified three concerns about the flood risk:

(a) the risk of an incident in the building after access has been cut off (either a medical incident for a resident or something else such as a fire);

(b) the risk of a person entering floodwaters – either to leave the building after the boom gate has automatically lowered, or to return after access is cut off, e.g. after taking a car to high ground

(c) the risks associated with evacuating special needs/ vulnerable residents, on average, every 4.8 years.

The developer argued (at [50]) that the only factor stopping approval was the flood risk, that is all the other considerations would be resolved in favour of the development. They argued (at [14], emphasis in original):

… the City Plan does not demand a “no risk” outcome, rather, the issue is whether the risk presented by the periodical isolation from flooding, in the context of the risk mitigation measures inherent in the proposal, is reasonably acceptable. 

Dr Johnson, an expert witness for the developer noted (at [77]):

  • Both the Gold Coast City Council planning scheme and the State Planning Policy permit residential development in flood plains with suitable risk amelioration; in fact there are no Queensland local authorities which prohibit development in flood plains…
  • The State Planning Policy states that development in flood areas should either avoid the natural hazard area or, where that is not possible, the development mitigates the risks to people and properties to an acceptable or tolerable level. He thus says the risk should be either minimised or mitigated to an acceptable or tolerable level.

Further, (at [79]-[81] emphasis added):

He notes the Council’s Flood Overlay Code adopts a risk profile which is considered to be acceptable by the community, and again here the habitable floors will never be flooded. He notes that many human activities involve implicit acceptance of a degree of risk, for example, travel on public roads. He compares the risk presented by the development with more risky human activities, such as a motorist driving on flooded roads. Such a motorist has a real risk of death or injury occurring; conversely if a person is sheltering in place on the proposed site, there is no risk of death from drowning. The rhetorical response to the motorist metaphor may be that they weren’t placed in the position of driving on flooded roads by a deliberate planning decision, as is being considered in this case.

He opines, therefore, that the mere existence of a non – zero risk is not sufficient to say that the risk is unacceptable. The proposed residents will be fully informed of the flood risk associated with the facility, and the need to evacuate from the facility early in a flood event, or shelter in place for its duration. As the Council has advocated sheltering in place as a suitable flood emergency response, there is no reason why this is not acceptable here.

He also opines that the risk of developing the proposal in the flood plain at this location is no greater than for a multitude of existing developments similarly situated within Gold Coast City. The planning scheme permits development in the form and location nominated, provided that risk to people’s lives in extreme flood events is satisfactorily mitigated, which it is in this case. Residents of the facility will not face any significant risk during a major flood event, and in fact, will be substantially better off than the majority of residents who occupy property in the Nerang River flood plain.

The developer argued that the flood risk was sufficiently mitigated by a combination of hard and soft controls. His Honour described the proposed controls at [52]-[55]):

The hard controls include that the residential units are above any possible flood level, the PMF. This refers to the Possible Maximum Flood level, said to be a 1 in 10,000 years event. Two of the three car park levels are also above the PMF. The lowest car park floor only becomes inundated at a Q500 level (a .05% event) and then only slightly; moreover this level is actually above the City Plan acceptable outcome requirement for habitable areas. Noble Life submits that the main reason for refusal is in effect the risks associated with the cut off of road access in a Q10 event, which is more frequently than the City Plan contemplates; moderate inundation is only permitted in a Q100/Q200 event. This, says Noble Life, is a problem with access, but not the building itself. Of course access, for an older population in a flood event, is important.

It is in the case of loss of access that the soft controls of procedures become relevant. Even then, Noble Life submits, it must be remembered that the rising water is not fast flowing such that boat rescue as well as helicopter rescue is possible. I note, in this context, that the case has not focused on “scour” effects from flooding, as mentioned in the grounds for refusal.

The hard controls also include a flood gauge together with its automatic locking of the boom gate to the car park at certain levels, preventing residents from attempting to drive into flood waters; the lifts designed to operate in an emergency, with mechanical components and the generator above flood levels; and a Helipad on the roof, together with a stair climbing platform for a stretcher, for emergency evacuation.

The soft controls include the FEMP [flood emergency management plan] and the FEOP [flood emergency operational plan]. Broadly, the plans call for “sheltering in place” for up to 72 hours, provided for by continuation of water, sewerage and power supply as well as lift operation, and sufficient food and medications being on hand. There is the possibility, at lower flood levels, of evacuation of high-risk residents (of whom a list is kept and presumably updated) by the high clearance 20 passenger four wheel drive bus to be provided; others remain onsite.

A number of experts gave evidence about these plans and relying on them to ensure the safety of the residents. Mr Youssef, the Coordinator Disaster Management of the Gold Coast City Council reminded the court (at [57]) that:

In an emergency, rescue resources are finite and must be deployed appropriately according to priority events that are actually occurring rather than being kept in reserve for potential future situations; the corollary is that availability of sufficient rescue resources in emergencies is necessarily uncertain.

He said (at [59]) ‘relying on plans as a fundamental risk control is questionable’ and he identified a number of issues with the plans for this development His evidence was (at [60]):

(a) The use of the helipad may not be viable due to non-availability of aircraft, or weather conditions and there are no other contingencies for medical emergencies once the shelter in place strategy is implemented.

(b) There is a risk of residents attempting to leave or enter the building, regardless of flood warnings and directions from staff. As he said in evidence, he has seen some quite erratic behaviour in his time in emergency management, and people are unpredictable and may make illogical decisions putting themselves and others at risk. His preference is thus not to put people in a position of risk.

(c) Fire services may be unable to access the building in an emergency with the necessary resources.

(d)There is no guarantee the required staff with relevant operational responsibilities will be on site or able to successfully implement the plans. The FEMP and FEOP contain many triggers, processes, responsibilities and requirements and may be complex to implement in a dynamic disaster event.[

His Honour said (at [73]-[75]):

The soft controls – the FEMP and FEOP – rely largely on a number of duties imposed on the Building Manager (BM)… These range from appointing an unspecified number of Flood Wardens – volunteer residents and/or staff, trained in an unspecified way to co-ordinate the flood response; to communicating with residents; directing preparations; ensuring everyone is familiar with the FEMP; maintaining registers of (a) all residents (b) special needs residents; maintaining and operating the evacuation bus (presumably the BM wouldn’t drive it; someone, maybe a maintenance person, would have to be licenced and on site to do so); ensuring the flood warning system is operational and updated; being concerned with possible power rationing, signage and movement control of residents and others; and running annual emergency flood drills…

Mr Gissing [called by the council to give expert evidence on emergency management and disaster risk management; Footnote 2] also noted that such plans, even when designed for professional emergency services, may not achieve adequate risk management, being assumptions-based and prone to failure. The BM may be called upon to deal with complexity, uncertainty and stress – and that in that circumstance it is very easy to miss things, misunderstand things or not be able to fully absorb the information. He saw the BM and his or her team as being required to be (simultaneously) the SES, fire brigade, ambulance, police, electrician and plumber; further there are likely to be, simply, unforeseen circumstances, a “failure of imagination”. Thus he has concerns about the plans as effective risk management measures.

Ultimately His Honour (at [89]) preferred ‘the evidence of Mr Youssef and Mr Gissing, having direct experience as they do with emergency management’ over the evidence of ‘Mr Collins and Dr Johnson which, with due respect, was more from the perspective of a theoretical analysis of risk.’ He found (at [91]) that the flood risk was not sufficiently mitigated:

… in circumstances where:

(a) the life of the development is 70 – 80 years, a lengthy period during which one or more severe flooding events may arise, which greatly impact access;

(b) it is intended to house an older and ageing cohort;

(c) a severe flooding event during that time is potentially catastrophic;

(d) the soft controls do not adequately manage the risk where human response to serious emergencies is variable and to a degree unpredictable, the residents and others may over time become desensitised to the plans, and helicopter or stretcher-based evacuation is problematic.

His Honour concluded (at [95] emphasis in original):

… from a planning perspective the proposal is one which ought be approved, apart from the flood risk; it is well designed and has collateral benefits for the immediate area. However, the proviso inherent in that submission applies; where I have concluded the risk is not acceptably mitigated, the proposal ought not be approved. The positive attributes which undoubtedly exist do not outweigh the unacceptable level of risk, such that the planning discretion ought not be exercised in favour of approval; … the flood risk is not managed to an appropriate and acceptable level, and thus the development is incompatible with the level of flood hazard. Although, as set out above, there are other matters favouring approval, separately or together they are insufficient to overcome the conclusion… In all the circumstances the appeal is dismissed.

Conclusion

Each case must be determined on its own facts and the merits of each proposal when judged against local planning policies.  It’s not possible to draw a direct comparison between the decision in OM Vinayak Pty Ltd v Central Coast Council discussed in my post Building risk and the Queensland decision in Nl Varsity Nominees Pty Ltd v Gold Coast City Council discussed in this post.

What we can infer is that it is at least possible to challenge decisions based on expert evidence and where there are planning codes in place that sufficiently articulate the planning objectives. 

There is a trade-off, and the court noted that there were benefits to the community that would be lost if this development did not proceed but in this case the potential risk exceeded the potential benefit.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Footnote 1:     Foerster, A., Macintosh, A. and McDonald, J., ‘Trade-Offs in Adaptation Planning: Protecting Public Interest Environmental Values’ (2015) 27 Journal of Environmental Law 459-487 at p. 460; see also McLennan B. and Eburn M., ‘Exposing hidden-value trade-offs: sharing wildfire management responsibility between government and citizens‘ (2014) 24 International Journal of Wildland Fire 162-169. http://www.publish.csiro.au/paper/WF12201.htm.

Footnote 2: Andrew Gissing “has 19 years emergency management experience and has previously given expert evidence in the area. He was a Manager with the NSW State Emergency Service and a Deputy Chief Officer/ Director Emergency Management and Communication with the Victoria State Emergency Service”. In more recent times Andrew has worked with Risk Frontiers. Today he is the CEO of Natural Hazards Research Australia (NHRA). NHRA is one of the sponsors of this blog.