I’ve recently reported on cases where councils have rejected development proposals on the basis of flood risk and the matter has been appealed, in the case of Queensland to the Planning and Environment Court and in NSW to the Land and Environment court  – see Queensland development refused due to flood risk (September 7, 2022) and Building risk (June 4, 2022) respectively. 

Another case has now come across my desk – Lensing v Snowy Valley Council [2022] NSWLEC 1486 (13 September 2022). In this case the applicant wanted to build a two story home on flood prone land.  Commissioner Bish said (at [55] and [58]-[59]):

… I find that the applicant has not provided sufficient information to assess the potential and likely flood impact to the site, areas surrounding the site and to future residents, from all potential flood events, and in particular the 1% AEP event. The applicant has not demonstrated to the satisfaction of the Court the likely impacts to the site and proposed development due to flooding, the conditions under which this impact may occur and the appropriate mitigation to reduce risk to life and property…

There is no evidence that describes how deep or significant the impact to the site is from a PMF [probable maximum flood] event, only that shelter in place is not possible for residents due to the flooding level being above the FPL [flood planning level] (and habitable floor level). The PMF is an event that could have catastrophic consequences to residents of the site, yet little information is provided on whether residents would be safe in such an event. I accept that the applicant is not required to model flood events other than the 1% AEP [annual exceedance probability], consistent with the SVDCP [Snowy Valley Development Control Plan 2019], however the FDM [NSW Floodplain Development Manual, 2005] explicitly seeks a floodplain risk management plan to consider flood events up to a PMF event. I consider that this is appropriate for a residential development on the site to inform both the decision maker and residents on the potential risk to life.

Whilst I recognise that the SVDCP (and TLEP [Tumut Local Environmental Plan 2012]) focus on assessing the 1% AEP events for planning purposes, the approach taken by the applicant fails to acknowledge that other flood events can and will impact the site. A more robust assessment with respect to flooding is appropriate for this site, as it is located on a high hazard floodplain, affected by flood events other than the 1% AEP and this information would inform appropriate dwelling design and evacuation planning.

With respect to the potential risk to life, Commissioner Bish said (at [65]-[67]):

The amended application relies too heavily on the SES to provide appropriate and timely response, which the SES themselves recognise may not be feasible when needed. The site is not prioritised for evacuation by the SES Local Plan, therefore residents may not get the help needed in a timely manner. Residents will likely have to rely on their own resources and that of the local community, such as occurred in recent flooding in northern NSW (and considered in the Inquiry).

Shelter in place is an option for residents in a 1% AEP event (and below) due to the habitable floor being above the FPL. However, the length of time that residents would need to stay in place is not clear from the evidence before the Court. There is insufficient detail in the application to provide certainty as to whether residents will have the resources to shelter in place, with regards to food, water and communication.

I find that the applicants’ evacuation approach is not well articulated, short on detail, relies too heavily on ‘education’ of the residents and is likely to be unimplementable in an emergency, such as during the night, due to the short period for response required and poor visibility to the river gauge. Without the SES warning being communicated in a timely manner, future residents of the site will have to rely on visualising the nominated river gauge level being exceeded, which is not within sight of the proposed dwelling, and then be alerted to act and respond accordingly, possibly within 1-2 hours.

At [83] Commissioner Bish concluded “the application has not demonstrated that the site is suitable for the proposed development, due to an unacceptable risk to life; and there is a likely adverse social impact to the locality during evacuation of the site”. The development application was refused.

Discussion

The outcome is interesting enough in its own right, particularly the Commissioner’s rejection of developers being able to rely on the SES to rescue people from the impact of the developer’s poor design.

The question that comes to my mind, and suggested by the title of this post is – is this a trend?  I have been writing this blog for many years and to see three cases where issues of flood risk and what can be expected of residents in a short period of time strikes me as a new development.  I haven’t done the research to confirm whether this is in fact a new development – perhaps there have been cases like this before and I just haven’t been attuned to them to identify them as worth reporting, but perhaps not.

If this is a new trend it raises questions of whether:

• Environmental planning policies have begun to take a more hard line approach to flood planning and flood risk (but see, Allowing housing in flood and fire prone areas (April 7, 2022)?
• Councils are more willing to refuse development applications and more willing to ‘stand their ground’ rather than compromise with developers?
• The Courts are more willing to refuse development applications and are not exerting pressure on parties to settle?

These may be interesting questions if there are any law or planning students, or early career researchers looking for a possible research project?

POSTSCRIPT

I received a response to my post where a colleague and researcher  said “I’m reading your latest blog. Not sure it is a new development. This case though appears very influential in forming policy in SEQ”. The case he refers to is Arora Constructions Pty Ltd & Jans Constructions Pty Ltd -v- Gold Coast City Council discussed in a newsletter published by Thomsons Lawyers.

In that case, according the newsletter, the court allowed a development of 270 apartments even though:

… the access road for the land, Nerang-Broadbeach Road, was impassable to cars beyond a 1 in 20 year flood.  There was a distance of some 3.6km to land above the Q100 flood level, outside the flood plain.  In a Q100 flood event, the site would be isolated for a period between 30 and 40 hours.  In the theoretical probable maximum flood (PMF), this period would be extended to between 2 and 3 days. 

The court approved the development.  Thomsons Lawyers say:

The decision of the Court in this case has wide ranging implications for flood plain development both on the Gold Coast and in other areas. The Court has shown a willingness to allow a residential development to proceed where it cannot ever hope to provide flood free access by car in a Q100 flood, but where the development itself is constructed to a high flood protection standard (the highest possible standard, PMF) and implements a variety of safety measures to ensure the safety of the residents in case of flood isolation.

The decision recognises that flood plain land, whilst constrained, is a valuable land resource and that development proposals which respond appropriately to that constraint, should be approved.

My point is that is that I would have expected that in most cases where it’s economics v flood plain safety, courts and councils would compromise and allow development. Court rules, the obligation on governments to be ‘model litigants’, the cost of litigation all encourage parties to find a compromise agreement. It doesn’t surprise me that in Arora Constructions Pty Ltd & Jans Constructions Pty Ltd -v- Gold Coast City Council the development was approved.

What does surprise me is that since June we’ve seen three cases where councils have refused the development and stood their ground to take the matter to court. And where the courts have upheld the council’s decision in 2 out of 3 of those cases. Now I concede that is not sufficient data to demonstrate a trend, and I also concede that perhaps there are many cases like this and I’ve not been attuned enough to notice them (and I don’t think I would have noticed them and commented on them if the court’s had approved them). And no doubt there are many Development applications that have been modified perhaps to enhance flood safety rather than be litigated.  I don’t know – but to see two developments rejected, not merely modified, on the basis of the flood risk stands out to me as perhaps something new.

For an interesting discussion on issues of land use planning, environmental conservation and fire safety – which raises the same issues – to what extent is development constrained by considerations of fire risk and the environment – see

Little, Stuart James, Exploring the Tensions between Bushfire Protection and Biodiversity Conservation in the New South Wales Planning System, Doctor of Philosophy thesis, Faculty of Law, Humanities and the Arts, University of Wollongong, 2017. https://ro.uow.edu.au/theses1/229

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.