In Is this a trend? (September 18, 2022) I asked if there was a trend in councils and courts taking a harder line when it comes to development in flood prone lands.
In Zaki Property Pty Ltd v Wollongong City Council  NSWLEC 1526 the Land and Environment Court again upheld a decision to refuse development consent on flood prone land. In this case the proposal was to build a childcare centre and a medical centre on flood prone land.
Flood modelling indicated (at ) that in the event of a 1:100 year flood event areas of the land would be exposed to risk ranging from H2 “unsafe for small vehicles” to H5 “unsafe for vehicles and people. All buildings vulnerable to structural damage. Some less robust building types vulnerable to failure”. A Probable Maximum Flood ‘would bring H5 hazard flooding to a fair portion of the site’.
The development proposal depended on a ‘shelter in place’ strategy in the event of a flood. This was described at -:
Property owners are responsible for provision of an on-site flood alarm system which includes sound and visible alarm features. Along with the alarm, this event triggers the closing of the carpark (palisade style gates for both cars and pedestrians (proposed Condition 23b) at Hopetoun Street and roller door shutters at entry to elevated child care centre carpark. There are requirements for the maintenance of the system and annual testing. Property owners are also responsible for “visible legible flood warning signage” at car park entry and within the carpark. The carpark would be closed during non-working hours. The signage would include the following instructions:
When the flood alarm sounds or flashes:
- If the child care centre is open, take the stairs up to Level 1 and shelter in the car park
- If the child care centre is closed, take the footpath to the medical centre and shelter on the upper floor.
Centre Director is appointed “chief flood warden”, with nominated staff also having varying supportive responsibility. Responsibilities include:
- System for monitoring for severe weather warnings.
- On the triggering of the flood risk alarm, ensuring children remain on Level 1 or above.
- System for advising parents and carers on general and specific flooding risk (eg “Kinderloop” communication tool), and providing updates. When the alarm has triggered, responsible for advising and ensuring no one leaves the premises. The message to parents and carers advises that local streets may be flooding and unsafe for travel and there will be no extra fees for care until the emergency has passed
- Back-up systems for technology failures (including back up electricity generation).
- Review of CCFERP [Child Care Flood Emergency Response Plan] after 5 years and after flooding events.
Apart from asking a child care centre director, who we hope is an educator and manager to take on these roles, the plan seems to me – as a parent – flawed. That was also the view of the judge.
The Council argued (at ) that the CCFERP was:
… an example of a plan of management being unacceptable because it relies on measures about which there is doubtful confidence – because they require people to act in a manner that may be unlikely in the circumstances; and fundamentally, the plan requires absolute compliance to achieve an acceptable outcome.
One can imagine that parents with children in a flood affected childcare centre may take risks to get to their children, or to get their children out. Nowhere was it discussed that the children won’t have read the plan and may not behave in complete conformity with the directions of the child care workers when being asked to shelter in a car park.
The developer argued (-):
“The FERP requires the occupants to do what they would do anyway in the event of a major flood. The 1% AEP and the PMF are extreme events. A person would not normally seek to go outside or drive on roads in such events. They would usually stay where they are until the weather event passes. This is particularly the case when the person has been made aware of the flood risks and have been told not to attend or leave the centre. It would be unlikely and unreasonable for a person to seek to leave or attend the site in these circumstances.”…
“The centre and parking has been designed to be above the PMF level. An alarm system has been installed and the roller door to the childcare centre ramp and the gate to the site will close upon the trigger of the alarm. If a person decided to act in contravention of the FERP then they could not physically leave the centre or enter the site.”
Commissioner Walsh said (at -):
I agree with Council and Mr Bewsher [an expert witness called by the Council] that it is in regard to the actions of this group that the CCFERP has limits to its capacity. I thought Mr Bewsher’s comments on the topic generally rang true of themselves (Transcript 1/6/22 p 45 L 35 et seq):
“… However, in these types of events, people do irrational things, and proposals for messaging don’t always work. The people that get the messages, the parents and the carers, you know, grandma does it one day, and uncle Fred does it another day, and to expect that all these people will know what to do in an event, those things can be managed to some extent, but they can’t be totally eliminated, and that’s why, as I’ve said in the joint report, that’s why the SES wrote the letter they did in opposition to this application, and relying on shelter in place.
The other issue with the flooding relates as well to the procedure related to the boom gates and closure. You can imagine a situation where the water is rising rapidly and people are leaving in a hurry and the boom gate goes down, so there will be people in cars, supposedly queued at the boom gate, you know what it’s like in a little traffic jam like that, you’ve got to manage turnaround and go back, but first of all realise that the boom gate isn’t going to come up. They have to realise the water levels are rising. They have to think, we should go back to the car space and go back up to the place of refuge. I mean, that’s a bit of a dangerous situation, but that’s the situation I’d be concerned about with cars being mobilised and moved, and people trying to get out of the vehicle. It is a risk which is managed, to some extent, by the two FERPS, but it’s not a risk that can be fully mitigated or eliminated. There are residual risks with this sort of an application.”
There seems to me to be a number of settings where third parties either dropping off or picking up children in care might act in unexpected ways, beyond the capacities for FERPs to address, which bring about flooding related risks. There may well be others but some of these settings include:
1). Flood event coincides with a situation where the individual responsible for drop off is under particular pressures and has no readily apparent option other than to drop off the child (eg those under pressures at work which make dropping of the child an acute need). They may believe, against FERP ambitions, that there’s a chance to drop off the child before the flood is problematic.
2). Flood event coincides with a situation where the individual responsible for pick up is under particular pressures which have a relationship to picking up the child at a certain time (eg due to other care responsibilities). They may seek to turn up at the centre, again against FERP ambitions.
3). The parent or other individual responsible for drop off/pick up otherwise ignores the directions on flood risk and non-attendance, for example due to anxiety in relation to children in care during the flood risk event.
4). Flood event coinciding with a situation where an individual generally responsible for day to day drop off and pick-up of children is not available and, no doubt against the FERP principles, the person doing duties for that day is not aware of the flood event protocols.
The Commissioner concluded (-):
I am aware that the proposal is satisfactory in regard to many provisions. I am satisfied that it would both provide adequate arrangements in regard to requirements of the children in care and also deals reasonably with concerns relating to compatibility with its context. It is zoned to suit. I also accept that the risk of flood events occurring at the site are quite low. The statistical intervals for flood events reflect this, and it is reasonable to think that events in the middle of the day will bring lower actual safety risks than events in the sweep of children drop-off and pick up times.
However, the proposal would bring a sensitive use into the floodplain in a medium hazard area. The proposal to manage this configuration, through in particular the CCFERP, requires a large group of parents and lay carers to act in a certain way when the relevant flood events do occur. This starts with the 20% AEP event. Irrational behaviour by some lay carers and parents in and around the circumstances when the barrier comes down should be seen as a likely event, with potential for significant adverse consequences. For me, the descriptive material at  provides a lucid predictive picture. It is reasonable to expect that the consequences of such behaviour would sometimes attach to higher order flooding risks and public safety concerns.
… On balance, it would be unreasonably incautious to find other than that this proposal poses unacceptable increases to flood-related risks. These include risks to public safety for this relatively vulnerable use. The proposed development will also increase the impacts of flooding outside the site, in some albeit small areas beyond permissible limits. I am not persuaded that the otherwise benefits of the proposal, outweigh these negative aspects.
That a proposal to build a childcare centre on flood prone land, and to expect child care workers to shelter in place with a young, vulnerable populations sounds so extreme as to wonder how anyone seriously proposed it, or how a court took 94 paragraphs to reject it. If I was a parent of young children, and was given those instructions about what to do in the event of a flood, my first response would be to look for a childcare centre that was built above the maximum probability flood level.
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.