In my post Is this a trend? (September 18, 2022) I asked whether the number of cases where development proposals were rejected due to flood risk was evidence of a new trend?  I still don’t have an answer to that question but I see that the issue arose again in Bhavsar v Blacktown City Council [2023] NSWLEC 1487. In this case Commissioner Bish had to consider an appeal by developer against the Council’s decision to reject the application to build a place of worship on flood prone land. At [53] the Commissioner said:

Council, and their expert Mr Almoil contend that the site is unsuitable as a place of worship, due to the potential risk to human life during a flood event. The increase in number of persons on the site, and their ability to evacuate safely and in a timely manner is considered unacceptable.

The applicant relied on a flood emergency response plan. This assumes worshippers would evacuate or shelter in place during any flood event. The council argued shelter in place was not an reasonable option as ‘flooding of the Hawkesbury-Nepean River … could last days to weeks’. As for evacuation the plan depended on a road that had not yet been built ([56]) and the current road could become impassable at 1 in 20 to 1 in 10 year flood events (ie events at 5-10% Annual Exceedance Probability ([59]).

At [60]-[63] Commissioner Bish said:

Based on my consideration of the evidence, I am not satisfied the application has sufficiently considered or addressed the risk to life in the event of a flood. The proposed immediate evacuation route is via Carnarvon Road, which becomes impassable in a relatively short time from the alert. It is proposed that up to 60 persons could be on the site … requiring a substantial number of cars to leave in a relatively short time frame. If flood warnings issued by the Bureau of Meteorology and State Emergency Services are not closely monitored, people on the site may miss their window of opportunity to safely leave. This raises the possibility that people will take unnecessary risks, particularly those that are unfamiliar with the dangers of driving through flooded waters or unwilling to shelter in place.

It cannot be certain that a flood event will occur at a time when worshippers are not otherwise occupied and attentive to the risk. The flooding at the low point of Carnarvon Road or Grange Road is not visible from the site, and therefore people will not necessarily know it is unsafe to evacuate. Persons on the site would not be able to distinguish a local from a regional flood event, and therefore may risk leaving the site when it is unsafe so as not to be trapped for an extended period.

… The proposed use of the land as a place of worship has not been demonstrated to minimise the risk to persons and safe evacuation/occupation has not been demonstrated.

In this instance, the reliance on a private evacuation plan is not consistent with the FDM [NSW Floodplain Development Manual, 2005]. There is potential for the plan to fail due to an assumption that people can distinguish between flood events and respond accordingly.

The development application was refused.

Discussion

I’m not a land use planner nor a flood engineer; but it seems to me perverse that a developer would want to have a building like a place of worship, or a child care centre (see Another development rejected due to flood risk (September 28, 2022)) and rely on an emergency response plan that the developers have written but which the occupiers will have to read, understand, and respond to and also assume that other agencies, such as the BoM and the SES will be able to issue timely warnings that will be received. That does not sound like an example of shared responsibility as it places too much burden on others to meet the developer’s objectives (but see Building risk (June 4, 2022)).  The developer builds the risk but leaves it to others to manage.

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.