Land and Environment Court New South Wales

• Medium Neutral Citation: Radray Constructions Pty Ltd v Hornsby Shire Council [2014] NSWLEC 1024
• Hearing dates: 22 to 25 and 28 October 2013
• Decision date: 14 February 2014
• Jurisdiction: Class 1
• Before: Hussey C and Dixon C

Decision

1. The appeal is dismissed.

2. Development consent to DA 627/2012 for the construction of a Seniors Living development comprising 13 dwellings, flood mitigation works and restoration of the watercourse at 15 Eyles Avenue, Epping and 15 Anthony Street, Carlingford is refused.

3. The exhibits be returned except for 1, 8, 9 and A.

• Catchwords: Development application: Seniors living development, flood risk, built form, impacts on trees, public interest
• Legislation Cited: State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; State Environmental Planning Policy - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.; State Environmental Planning Policy (Building Sustainability Index -BASIX) 2004; Hornsby Local Environmental Plan 1994; Draft Hornsby Local Environmental Plan; NSW Floodplain Development Manual; Draft Floodmaps 2010 Revised; Local Government Act 1993; Sustainable Water Development Control Plan; Threatened Species Conservation Act 1995; Waste Minimisation & Management Development Control Plan; Waste Minimisation Act 2000
• Category: Principal judgment
• Parties: Radray Constructions Pty Ltd (Applicant); Hornsby Shire Council (Respondent)
• Representation: Mr I Hemmings SC (Applicant); RJI Legal, Mr P Woods (Applicant); Pikes & Verekers Lawyers, Mr P Jackson (Respondent)
• File Number(s): 10332 of 2013

Judgment

Background

1 This appeal was lodged against council's refusal of a development application for a Seniors Living development comprising thirteen (13) dwellings, located along the Epping/Carlingford suburban border.

2 The subject land is flood liable and the contentions are summarised as follows:

• Suitability of the site for the development with regard to the flooding risk.
• Whether the built form satisfactorily responds to the constraints of the site.
• Impact on trees/vegetation.
• Public interest.

3 In response to the threshold flooding issue, the applicant undertook a number of flood modelling exercises. This resulted in several amendments to the original application with the proposed units being elevated above the Probable Maximum Flood (PMF) so that residents could safely remain in their units during significant storm events. Associated access arrangements are to be provided.

The site

4 The site comprises two lots described as Lot 12 in Deposited Plan 28247 (15 Eyles Avenue), Epping and Lot 3 in Deposited Plan 201713 (15 Anthony Street), Carlingford NSW. It is irregular in shape with a total area of 3,787 sq m.

5 The property at 15 Eyles Avenue is a battleaxe lot off the western side of Eyles Avenue and 15 Anthony Street has a frontage of 16.2 m to the northern side of Anthony Street.

6 The site contains a creek/watercourse that enters the site through culverts under Anthony Street and it flows through the central part of the site in a northerly direction. There is a large stormwater pollution control trap on the southern side of Anthony Street. The drainage infrastructure also comprises:

• Anthony Street culvert - consisting of 2 x 1200 mm diameter concrete pipes, expanding to 1350 mm diameter at the outlet, draining flows from upslope of Anthony Street to the site creek.
• Anthony Street road pits and pipe - consisting of two kerb inlet pits located at the front of the site draining Anthony Street via 375 mm diameter pipes to the site creek.
• Existing site creek - consisting of masonry and concrete construction at the southern end of the site, whilst the northern section of the creek is not constructed and showing signs of severe degradation from stormwater scour. The creek runs from the outlet of the Anthony Street culverts to a culvert under the access way to 17 Eyles Avenue.
• Elevated access driveway and culvert along the access way to Eyles Avenue, which potentially forms a restriction to creek flows causing larger storm flows to bypass the culverts as overland flow over the weir under the access driveway and over the driveway in very large flows.
• The culvert consists of 2 x 1350 mm diameter drainage pipes conveying flows from the site creek, under the adjacent elevated site access and private playground area, to Dunrossil Reserve approximately 180 m north of the site.
• The stormwater drainage system to the north of the site includes an overland flow path through a Council drainage easement and Dunrossil Park, which is designed to form a substantial stormwater detention system.

7 There are two existing dwellings on the western side of the watercourse. The dwelling at 15 Anthony Street is a two-storey timber dwelling with tiled roof and is flood affected. The dwelling at 15 Eyles Avenue is fire damaged and derelict. The properties surrounding the site include single and twostorey dwelling houses on suburban lots developed mainly since 1960.

8 The site includes numerous large trees identified as Blue Gum High Forest, a critically endangered ecological community.

9 The site is within 140 m of a bus stop on Dunrossil Avenue north of the site, which provides public transport connection between Parramatta and Epping.

The proposal

10 The Seniors Living proposal is for two residential buildings, Building A and Building B built over a basement carpark (See Attachment A).

11 Building A at the Anthony Street frontage is two-storey and includes 10 x 2 bedroom dwellings. Building B towards the rear of the site is single storey and includes 3 x 2 bedroom dwellings. The dwellings range in size from 72 sq m to 90 sq m in area.

12 The proposed buildings are to be elevated above the estimated 1:100 year flood contour with floor levels set at the Probable Maximum Flood (PMF) or 1:100 flood event plus 500 mm freeboard if it is higher. The proposed basement car park is designed so as to prevent inundation in a 1:100 year flood event by the construction of an elevated diversion hump along the access driveway.

13 The basement includes ten (10) car parking spaces for Building A and three (3) car parking spaces for Building B. The car park is accessed via the existing driveway and right of carriageway over the elevated access culvert off Eyles Avenue. There is a distance of approximately 90 m from Eyles Avenue to the car park entrance.

14 The basement car park is configured in an elongated manner, which includes:

• A length of approximately 30 m under Building B containing three (3) car spaces and lift.
• A 20 m long, 4 m wide connecting tunnel to the Building A car park.
• The Building A basement car park containing ten (10) car spaces, waste storage area and lift within a footprint with dimensions in the order of 27 m x 17 m.
• The overall length of the basement car park area is approximately 77 m.

15 There are two proposed pedestrian access routes for the development as follows:

• The primary route is via a substantially elevated pathway from the deck adjacent to Units 11 - 13 to the Eyles Avenue frontage. The distance from the main entry lobby at Building A is approximately 150 m to Eyles Avenue. This pathway is to be constructed with levels above the PMF.
• The secondary pedestrian access is from Anthony Street via an at - grade pathway along the western side of the site to an entry "gateway structure" at the building line. This pathway then transitions from the natural ground level (NGL) to the elevated entry foyer on the western side of the building. This entry foyer is located approximately 17 m from the front building alignment and approximately 32 m from Anthony Street. It is approximately 1.5 m above NGL.

16 The proposal involves the provision of the following flood mitigation measures:

(1) Clearing and maintenance of the existing creek, vegetation and obstructions under the existing accessway to 17 Eyles Avenue (adjoining property to the north of subject site). This is to consist of periodic inspections and vegetation maintenance to ensure that excessive vegetation growth and debris do not block the existing pipes and weir under the access to 17 Eyles Avenue.

(2) Modification of site levels through earthworks and creek rehabilitation works to provide improved flood storage and conveyance.

(3) Creation of a floodway at the front and eastern sides of the proposed Building A involving:

• Earthworks to create a 1 in 3 embankment slope from the site boundary with Anthony Street and from the front of proposed Building A to lower existing site levels by up to 1.6 m.
• Construction of retaining walls where the floodway adjoins site boundaries. The eastern wall of the proposed building is to form part of the wall of the floodway. The wall is to be waterproofed.
• Construction of a floodway outlet to the existing site creek. The retaining walls are to be tapered to existing levels on either side of the new outlet.

(4) Construction of OSD tanks within and / or under proposed buildings to minimise obstruction of floodwaters.

(5) Construction of the proposed pathway from proposed Building A to Anthony St, partially at grade in front of the building, then as a raised walkway.

(6) Construction of the pedestrian pathway from Building A to Eyles Avenue. This pathway is to be elevated above the PMF level and includes a separate cantilevered section adjacent to the Eyles Street culvert.

(7) Construction of a flood diversion mound on either side of the site vehicle access driveway to the basement carpark at or above the PMF level to ensure that the site basement car park remains flood free in this event

17 The proposal includes a landscape plan and vegetation management plan for restoration of Blue Gum High Forest on the site. A 5 m wide core riparian management plan is also proposed.

18 The proposed development is 'Integrated Development' in respect to a Controlled Activity Approval under the Water Management Act 2000. In this regard the NSW Office of Water has granted General Terms of Approval for the proposed development

Planning controls

19 The main planning controls are:

• Hornsby LEP 1994, under which the site is zoned Residential A (Low Density). The zone objectives are:

(a) to provide for the housing needs of the population of the Hornsby area.

(b) to promote a variety of housing types and other land uses compatible with a low density residential environment.

(c) to provide for development that is within the environmental capacity of a low density residential environment.

• State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. This is the prevailing policy. Cl 32 provides

32 Design of residential development

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

Cl 33 contains Design Principles for neighbourhood amenity and streetscape. Schedule 1 identifies "Environmentally sensitive land"

20 Other relevant planning controls are:

• State Environmental Planning Policy (Building Sustainability Index -BASIX) 2004.
• State Environmental Planning Policy - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.
• Threatened Species Conservation Act 1995.
• Sustainable Water Development Control Plan
• Waste Minimisation Act 2000
• Waste Minimisation & Management Development Control Plan
• Draft Hornsby LEP
• NSW Floodplain Development Manual (FDM)
• Local Government Act 1993
• Draft Floodmaps 2010 Revised.

The evidence

21 Detailed evidence in this matter was presented by:

• Mr D Bewsher; council's consulting hydrologist
• Dr D Martens; applicant's consulting hydrologist
• Mr N Kennan; council's consulting planner
• Mr L Fletcher; applicant's consulting planner
• Mr G Paroissien; council's consulting arborist
• Mr P Castor; applicant's consulting arborist
• Dr J Stubbs; council's consulting social planner
• Dr J Lonie; applicant's consulting clinical neuropsychologist

Flooding

22 The threshold issue in this matter concerns the flood risk to persons and property. The risk arises due to the location of the site adjacent to the existing watercourse that is liable to flooding. The watercourse carries stormwater from an upstream gross pollutant trap (GPT) via a culvert under Anthony Street and then pipes and overland flows along the watercourse adjacent to the eastern side of the proposed development.

23 Dr Martens undertook a Tuflow modelling exercise to assess the flooding issue. Various scenarios were considered based on parameters agreed with Mr Bewsher, resulting in his agreement that the modelling is sufficiently robust to rely upon. The parameters include:

• Revised modelling of fences including collapse effects during larger events.
• Allowance of 75% for blockages at culverts.
• Revised modelling of the accessway from Eyles Avenue and the ramp to the carpark.
• Consideration of impacts on flood levels on the adjoining Eyles Avenue unit development.

24 The modelling indicated that:

(a) Approximately 74% of the site is inundated in a 100 year flood event and 100% of the site is inundated in a probable maximum flood (PMF);

(b) Approximately 44% of the site has velocity-depth products exceeding 0.4 sq m/s in a 100 year event. This value is the threshold for safe pedestrian movement;

(c) The aerial extents of inundation of the 5 year, 20 year and 100 year events on the site are not expected to be significantly different;

(d) Part of the site is a high hazard floodway;

(e) Vehicular access along Anthony Street adjacent to the site, will be prevented by overtopping floodwaters for a period in the order of 0.5 - 1.0 hours, during the 100 year event;

(f) Peak 100 year velocities are approaching 5m/s on the southern and western sides of the excavation adjacent to the Anthony Street frontage, and 7m/s in the floodway beside the south eastern corner of Unit 2;

(g) The Eyles Avenue accessway bridge will be partly inundated to a shallow depth (up to 0.3m approx) in a 100 year flood for up to 30 minutes. It is unlikely to be inundated in a 20 year event.

25 As part of their assessment both experts viewed the video (Exhibit 10) of a flood in February 1990 taken at the Anthony Street frontage and agree that this storm event was in the order of 10-20 years ARI.

26 They have also considered the flood event of 12 February 2010 on the basis of an analysis of rainfall intensities prepared by Cardno for Council on 19 November 2012, which states that the intensity of this event had a "severity of approximately 10 year ARI".

27 Consequently from the agreed flood modelling results, the engineers established the proposed finished floor levels (FFL) above the PMF for each of the units, on the aforementioned basis. The associated components of the development then include:

• All vehicular access will be from Eyles Ave via the existing culvert that is subject to partial inundation of approximately 300mm for a period of up to 30 minutes, during the 1:100 storm event.
• All vehicles are to be parked in the basement car park, which is secured against flood inundation by the constructed mound, which is part of the elevated accessway.
• The distance from the garage entry to Eyles Ave via the accessway is approximately 90 m.
• Pedestrian access is via a separate footpath generally adjacent to the alignment of the vehicle accessway. It is elevated above the PMF level and includes a raised cantilevered section adjacent to the Eyles Ave culvert. The length of travel from the entry lobby of Building A to the Eyles Avenue boundary is in the order of 150 m.
• Alternate pedestrian access is available directly from Anthony Street, although this access is not recommended in storm events (such as the 1990/2010 storms) because the pathway will be inundated by fast flowing water.
• In significant storm events all residents should remain on the property ("stay - in - place") because they are safe above the PMF level and the flood passage is of short duration. If they want to evacuate by car they will be guided by visual and audible warnings signals in the basement triggered by flood sensors in the creek.
• Units 2, 3 and 5 have elevated balconies on the eastern side adjacent to the creek mitigation works. Such works include the stormwater holding basin in the front setback area, which transfers water into the constructed floodway immediately adjacent to the eastern elevation on these units. This will result in floodwaters regularly passing under the balconies with velocities in the range of 5 - 7 m/s, depending on the storm event. In the 1:100 year event the floodway will be approximately 2.9 m deep with about 0.9 m clearance under the balcony.

28 Insofar as the agreed flood modelling confirms that the site is liable to significant flooding impacts and part of the site is within a "high hazard floodway", it is apparent from the engineering evidence that various mitigation works can be undertaken in response to this flooding issue. Notwithstanding this, the engineers are not in agreement on the primary contention that the site is unsuitable for the proposed Seniors Living development due to the incidence of flooding.

29 In response to the particulars dealing with impact on residential amenity, Dr Martens considers the site is suitable for the development and supports its conditional approval, including the subsequent preparation of an "Emergency Management Plan" (EMP). He says that as major flooding is highly infrequent (say every 5 - 10 years) and occurs generally for only short durations (say 1 or 2 hours) then:

• Without any resident education in place, there is a possibility that some new residents may initially experience elevated anxiety should they observe floodwaters passing under their dwelling.
• A number of permanent and on-going resident flood awareness initiatives can be put in place to ensure that residents do not become overly anxious about flood waters within the site. These could include for example, signage within the development (e.g. at car park entry and on the walk way), flood information contained within contract of sale package, and on-going requirements of the site body corporate to provide flood awareness information to site residents. Such matters would be detailed in the emergency management plan.
• Once a resident has experienced and observed a flood event, and been assured that their dwelling is not liable to be 'washed away', that anxiety levels will be lower on the next event.
• With time, residents will become accustomed to floods passing through the site.

30 Dr Martens says that the key issue is what can be done, as part of a development, to reduce risks to an acceptable level. Importantly he says that the risk at the site is to be significantly managed, with due consideration of the expected character of the resident. Key risk management strategies adopted for the development are:

(1) all habitable floor levels are above the PMF (which significantly exceeds the planning norm of 0.5 m over the 100 year ARI event in NSW);

(2) the basement car park has been flood proofed; and

(3) there is some form of safe egress at all times from the site no matter what the flood conditions may be.

31 Also, the flood clean up requirements would be detailed in the emergency management plan. This would enable the site's body corporate to organise any necessary site clean-up following flood events, together with any routine site landscape maintenance as part of its general duties and funding requirements.

32 However, Mr Bewsher does not consider the site is suitable for this development based on his experience in the preparation and application of the FDM provisions in the over site of some 25 Floodplain Risk Management Studies and Plans. He says that:

• A key assessment undertaken as part of these FRMS & Ps is the determination of the suitability of land for urban development having regard to the flood risks to people and property.
• He has carried out numerous assessments of evacuation capability having regard to the type of development, the pedestrian and vehicle accesses that are available, the nature of the residents and the flood characteristics of the site.
• An important consideration in these activities and assessments is knowledge and experience of human behaviour and the manner in which people will respond in a flood event.
• In the proposed development some of the units are adjacent to, or have their balconies suspended over, a high hazard floodway. Based on his experience of the February 2010 event and the modelling undertaken to date, he would expect some occupants of these units to have heightened levels of anxiety or become terrified during moderate flooding (e.g. 5-20 year flood event).
• Based on his experience and knowledge, his opinion is that having regard only to flood risks, that a majority of NSW councils would consider a Seniors Living development on the subject site to be an "unsuitable" land use.
• When viewed from the Anthony Street frontage, the lateral extent of the existing 100 year flood covers not only the entire width of the site, but spans from the dwelling at 11 Anthony Street to the dwelling at 17 Anthony Street. This is a significant encumbrance on the site, which constrains any development on the Anthony Street end of the site. The proposed building layout is unsympathetic to this constraint and widens the obstruction of flows caused by the existing house and garage. This necessitates the construction of the excavation and floodway, which exacerbates the already high velocities of 5 m/s and 7 m/s creating a flood environment that is inappropriate for a Seniors Living development.
• The general site amenity will be reduced because of the need to clean up after the frequent flood events to which the site is exposed.

33 In summary then, Mr Bewsher does not support the application because he considers the site is unsuitable for the proposed development, there are unsatisfactory impacts and safety risks at the Anthony Street frontage, there is no effective emergency management plan and the likelihood of the approval of the subject development creating and adverse precedent for other similar developments. He does not consider it appropriate to rely on an individual emergency management plan.

34 Insofar as the Court has considered the aforementioned engineers opinions on the site suitability in terms of social and personal impacts, it is noted that there was considerable discussion about the weight to be given to this evidence, considering the separate evidence presented by the social planner/neuropsychologist on this contention. We deal with this subsequently.

Impact on trees

35 There are approximately 65 trees on the subject site and the adjoining council land to the east of the watercourse, which are part of the Blue Gum High Forest (BGHF). Insofar as a number of the trees on the site are to be removed for the development, Trees 21 and 29 (BGHF species) were originally identified as being adversely impacted. Tree 22 was subsequently identified as being at risk due to its proximity to the proposed development and mitigation works. However, the applicant contests this.

36 Mr Castor initially undertook a detailed assessment of the aboricultural impacts of the proposal, which included consideration the tree condition, structural root zone (SRZ), tree protection zone (TPZ), Safe Useful Life Expectancy (SULE), © SIG. RATING and © RETENTION INDEX. These ratings were reviewed by Mr Paroissien.

37 Tree 21 is a 22m high Sydney Blue Gum (Eucalyptus saligna), which is located approximately midway along the site, adjacent to the elevated pedestrian way and creek improvement works. The experts agree that:

• It is of good health and high landscape significance.
• Retention of the tree is the preferred outcome providing constraints/design allow for its retention.
• There will be an increase of human activity (targets) in the vicinity of the tree post-development.
• There will be increased maintenance and pruning of the tree if the proposal is implemented.
• The TPZ will be potentially impacted upon by the proposed works and there is an overlap of the TPZ's with Tree 22.

38 However the experts disagree on the following points:

• the extent and significance of impacts to the tree and, therefore, whether the tree can be sustainably retained.
• the extent of impact associated with the removal of Tree 22 (i.e. potential impacts of increased exposure).

39 According to Mr Castor's assessment, the significant TPZ encroachments for Tree 21 will be in the order of 32.7%, excluding the creekworks encroachment between Chainage 40 and 46, adjacent to Building A. He says that the offsets from construction and TPZ encroachments for Tree 21 are acceptable and will allow for long-term retention. Also, there are no works within the SRZ and so there are no impacts on stability.

40 Based on Mr Castor's original assessment, Mr Paroissien is concerned about the 6.6 m proximity to the basement excavation and location of other structures, which he considers increase the likelihood of increased impacts on this tree. His opinion is that there would be a combined encroachment in the order of 53.16% of the trees TPZ. Furthermore, he says that he proposed removal of Tree 22 will also significantly increase the tree's exposure to the southwest and associated wind loading to the tree's canopy. This increased wind loading may increase the risk of branch failure and given the increased human activity around the tree, he considers it probable there will be requests for pruning and or removal of the tree.

41 In summary, Mr Paroissien's opinion is that the extent of direct impacts to the tree's TPZ area is within the significant range, which will affect the tree's long-term health and reduce its safe useful life expectancy. When these impacts are combined with the indirect impacts a total of around 53% of the tree's TPZ will be affected including for machinery access and installation of piers for the proposed elevated structures.

42 As AS4970-2009 identifies encroachments of up to 10% of the TPZ as a minor encroachment, then where the encroachment is greater than 10%, the Standard identifies this as a major encroachment where the tree's viability needs to be investigated and demonstrated by the project arborist. Consequently, he does not consider it has been demonstrated that Tree 21 can be viably retained.

43 Tree 29 is a 22m high Sydney Blue Gum (Eucalyptus saligna), which is located near Unit 13 and adjacent to the lawn area and creek remediation works. The experts agree that:

• The tree is of good health and high landscape significance.
• Retention of the tree is the preferred outcome providing constraints/design allow for its retention.
• That there will be an increase of human activity (target value) in the vicinity of the tree.
• That there will be increased maintenance and pruning of the tree if the proposal is implemented.
• The roots of T29 have been confined by the exposed clay subsoil in the base of the creek increasing the area of effective Tree Protection Zone (TPZ) in the area potentially impacted by the proposed works.
• Further detailed consideration is required on the creekworks construction in the area of undercut bank around Chainage 60-65.

44 The arborists disagree on the extent and significance of impacts to the tree and, therefore, whether the tree can be sustainably retained. According to Mr Castor's assessment the offsets from construction and TPZ encroachments to Tree 29 are acceptable and will allow for long-term retention.

45 In regard to the potential creek improvement works, Mr Castor says that

• the subject site being a low lying, riparian site and will have greater than average soil depths (soil volume) within the TPZs and therefore Tree 29 has a good opportunity for retention.
• The tree's existing good vigour will also give the tree the best opportunity to cope with the proposed works.
• The existing bank erosion is to be stabilised as part of the creekworks, retaining the exposed roots.
• The proposed stormwater pits and conduits will be hand dug with all roots greater than 50mm diameter retained.
• The 24% TPZ to be removed can be replaced with new root development in the area of elevated driveway and with denser root growth within the existing TPZ.
• No significant impact on tee stability or longevity is expected resulting torn the proposed development.

46 Against this, Mr Paroissien says that the proposed basement access area (and associated driveway ramp) is located 6.24 m from the tree and Building B is 6.2m from the tree - where excavation is required and allowing for 500mm 'over excavation' these structures are calculated to impact on 149.6 sq m or 30.59% of the tree's identified TPZ area. The drainage pipeline associated with the driveway ramp will impact a further 25.8 sq m or 5.28% of the tree's identified TPZ area.

47 Therefore, the directly affected areas are 35.87% of the tree's identified TPZ area, which is a significant level of impact that will affect the tree's long term health and reduce its safe useful life expectancy. He is also concerned that the Riparian Management Plan shows Ch 60.0 opposite the tree and indicates installation of rock lining and battering in the creek bank around 6.5 m from the tree and also within its TPZ, there are numerous exposed woody roots torn the tree in this area that would be affected by works in this area.

48 Accordingly, Mr Paroissien's position is that the extent of direct impacts to the tree's TPZ area is within the significant range that will affect the tree's long-term health and reduce its SULE. When these impacts are combined with the indirect impacts, about 47% of the tree's TPZ will be affected including for machinery access and installation of piers for the proposed elevated structures. He does not consider Tree 29 can be sustainably retained.

Planning considerations

49 The planners specifically addressed the "built form" contention and associated issues concerning the impact of the raised driveway structure upon neighbouring development, consistency with the HLEP objectives, compliance with the HDCP provisions, location of the elevated pathway to Eyles Avenue and overlooking impacts arising from the use of the elevated walkway adjacent to 11 Anthony Street.

50 Mr Kennan says that in addition to cl 33, cl 31 of the Policy is also relevant when discussing the impact of the proposed development on the residential amenity and the streetscape. Therefore, consideration is required to the provisions of the "Seniors Living Policy: Urban Design Guideline for Infill Development".

51 Accordingly, Section 3 of the Guidelines deals with "Impacts on Streetscape" based on the following objectives:

• to minimise impacts on the existing streetscape and enhance its desirable characteristics.
• to ensure that new development, including the built form, front and side setbacks, trees, planting and front fences, is designed and scaled appropriately in relation to the existing streetscape.
• to minimise dominance of driveways and car park entries in the streetscape.
• to provide a high level of activation and passive surveillance to the street.

52 The relevant design principles of the Guidelines are:

• providing a front setback that relates to adjoining development.
• clearly design open space in front setbacks as either private or communal open space.
• locating and treating garbage storage areas and switchboards so that their visual impact on the public domain is minimised.

53 Mr Kennan says that the character of the existing streetscape in Anthony Street is one of a traditional low density residential area comprising detached dwelling houses, which are appropriately setback from the street frontage with that front setback structured in such a manner that it forms part of the usable private open space of the individual dwellings. The existing front setback area of 15 Anthony Street is consistent with that existing character.

54 However the proposed development, due to the flooding of the site as described by the flooding experts, is such that significant mitigation measures are required to be implemented in the Anthony Street setback area. In terms of the streetscape impacts of the proposal, Mr Kennan has the following concerns:

• From the engineering plans, it is clear that the front setback in Anthony Street would require significant excavation to provide for the required flood storage area with that excavation being in the order of 1.6 m in the centre of the front setback area.
• Additionally, retaining structures are required and the slope of the resultant landform would be in the order of 25%.
• The nature of the excavation in the front setback area, combined with the velocity of flood waters which would flow in that setback area are such that a fence would be required to be constructed around the entire flood storage area in addition to that which is proposed by the applicant.
• With the excavated and fenced front setback as proposed, this area would be inaccessible to the residents of the proposed development and would be seen as a foreign element in the Anthony Street streetscape.

55 Therefore, Mr Kennan's opinion is that these concerns are such that they are contrary to the stated objectives and would not result in a harmonious fit with the existing streetscape.

56 Against this, Mr Fletcher says that that the character of the area is not one that relies upon front setback areas to meet private open space needs of residents as that role is served generally by the rear yards of properties. In this case, the front setback area is an area of common open space that will serve a dual purpose as flood detention in occasional severe storm events. In his opinion, the proposal is consistent with the identified design principles.

57 In regard to the other planning issues, we deal firstly with the impacts of the raised driveway. In the subject circumstances, the experts agree that that the raised vehicular driveway providing access to the basement car parking area would be visible above the fence adjacent to two of the adjoining landowners at 17-19 Eyles Avenue.

58 It was noted that a 3 m high landscape strip between the raised driveway and the fence to the adjoining properties is proposed. However, it was agreed that the sustainability of the landscaping as a visual screen could not be guaranteed and consequently the visual impact of the raised driveway could, subject to the agreement of the adjoining landowners, be better addressed by the provision of a lapped and capped fence on the boundary to a minimum height of 1.8 m or to the height of the adjacent 1.2 m high driveway barrier, whichever is the greater. It was further agreed that this is a matter that could be addressed by appropriate conditions.

59 With regard to the potential for overlooking from the raised driveway and the associated walkway, the planners agree that the proposed 1.2 m barrier along the raised driveway and the 1.5 m high barrier along the walkway would be sufficient to mitigate overlooking to the adjoining properties to an acceptable level.

60 Another issue concerns the potential impacts of overlooking onto 11 Anthony Street from the elevated pathway along the side passage to the front entry to Building A. The experts agreed that there is potential for overlooking to the open space areas of the adjoining development. However, landscaping is proposed between the walkway and the boundary fence to act as a privacy screen. Alternatively, a privacy structure could be erected adjacent to the entry foyer of Building A, which would be approximately 3 m above NGL and would be seen from the neighbouring property.

61 With regard to overlooking from Unit 9 of 11 Anthony Street, it was agreed that there is potential for overlooking into the open space area of this adjoining property from the living room windows along the western elevation of Unit 9. However, this potential could be mitigated by the use of frosted glass in those windows to prevent looking down to the adjoining development.

62 The next issue concerns location of the altered pathway to Eyles Avenue having regard to its location whereby all future occupants of the site have to pass the front of units in Building B possibly creating unacceptable amenity. After consideration of a range of design options, the planners agreed to amendments that could reasonably address this concern. Although this would likely reduce the size and amenity of the communal open space adjacent to the riparian corridor.

63 The remaining issues addressed by the planners concern traffic access and amenity. In particular Mr Kennan expressed concern about the lack of any passing bay on the accessway from Eyles Avenue. This was resolved by the provision of a widened vehicle passing area.

Social impacts - site suitability

64 This issue was particularised within the primary site suitability contention in the following terms:

(d) The frequency and extent of the flooding of the site would detract from a residential environment particularly for Seniors Living residents due to the anxiety, inconvenience and emotional stress caused by the incidence of flooding.

65 The parties sought to address this issue with individual reports and a joint expert report by:

• Dr J Stubbs; a social planner who expressed her opinions on the basis of her extensive professional experience and academic research related to strategic planning, the assessment of the social impacts of various types of development, including seniors living developments.
• Dr J Lonie; a clinical neuropsychologist, with specialist expertise in cognitive assessment of older adults and diagnosis of dementia and dealing with other older adult neuropsychological issues.

66 Insofar as the these experts approached this issue from significantly different backgrounds and deferred to each other on various points, they initially agreed that:

• 'Anxiety' is not used in the contentions as a clinical term (as in for example, anxiety disorder categorised in DSM-5), but rather is more likely to mean fear or stress.
• Clinical 'anxiety' among 'healthy' older people under normal circumstances is likely to be similar or possibly somewhat lower as compared to younger people

67 Dr Lonie addressed the following questions:

1. Is the reaction to a flood event likely to be different for a person just because they are over 55, rather than under 55?

2. Is the reaction to a flood event likely to be different for a person significantly more elderly than 55 but still living independently, with or without outside support including visiting supporters?

3. Is the reaction to a flood event likely to be different because those persons are disabled?

4. Is the reaction to a flood event likely to be different because those persons are to a lesser extent demented?

5. Is the reaction to a flood event likely to be different because those persons are to a greater extent demented?

6. Would the residents be likely to remain in their homes during a rain and flood event; or attempt to leave

7. If they chose to leave, would the residents be likely to panic at the sight of floodwater, if they are:

(i) Walking out down the driveway on foot, whether or not then in the company of other residents or an escorting carer; or

(ii) Driving themselves out in a vehicle; or

(iii) Being driven out in a vehicle by someone else

68 Based on the limitations of her expertise on various aspects of these particular issues, Dr Lonie's findings are summarised as follows:

• The reaction to a flood event is not likely to differ for a person just because they are over 55, rather than under 55 or on account of the fact that a person is significantly more elderly than 55 yet still living independently, with or without outside support.
• There is no inevitable link between cognitive decline and aging. Most old people will not develop Alzheimer's disease. Many (around half of all individuals) do not show age-related cognitive decline.
• It is possible that a person over the age of 55 year with a cognitive disability might react in a different manner to their cognitively healthy aged matched contemporaries in the event of a flood, with some forms of cognitive disability likely be associated with alterations in the manner in which a person might be expected to react to a flood event and other forms of cognitive disability would not.
• It is likely that the reaction to a flood event would differ in an older adult suffering with moderate or advanced stage dementia, relative to their cognitively healthy age counterparts.
• A portion of individuals (although not all) suffering in the early stages of dementia would likely react in a different manner to their cognitively healthy age peers in the event of a flood.
• The reaction of potential residents to a flood event (in relation to the above proposed development) would be governed by the content and accessibility of emergency procedures in the event of a flood.
• She is unaware of any evidence to suggest that the likelihood of a panic response on viewing floodwater onsite would differ on account of a potential resident being over the age of 55 years and not aware of any reasons that might lead to this being the case.
• The applicability of existing scientific literature addressing the impact of flooding on mental health to the development proposal in question, appears tenuous, at best, as such literature encompasses a range of major flood events wherein floodwaters have entered into homes and resulted in the need for evacuation and the displacement of people from their homes.
• The literature documents a slightly lower prevalence rate for anxiety disorders among older adults than for younger adults

69 As noted, Dr Stubbs approached this issue from a different social planning perspective. She reviewed the details of the proposal against the provisions of the SEPP, particularly the requirement that a suitable site for this form of development should provide an 'attractive yet safe environment for pedestrians and motorists with convenient access and parking for residents and visitors'. She says this raises matters in the public interest and compliance with the SEPP.

70 Based on her social planning experience, Dr Stubbs does not support the proposal because:

• The risk of regular, unpredictable flooding events is considered to be counter to the provision of a safe, secure and stress-free environment to support aging in place, and to the intention of the SEPP to facilitate housing suited to the needs of older people and those with a disability.
• A further issue relates to the cost and physical work required to clean up the site and reinstate gardens and landscaping after a flood event, and the emotional loss that residents would feel. Gardens are often highly valued and an important recreational pursuit for older people, and this would be an added stress for people who have put time, investment and care into this activity.
• From a review of the vehicle access and parking proposals and notwithstanding that it is said to comply with appropriate Australian Standards, she considers that this access and parking is neither 'safe' nor 'convenient' as required by the SEPP, taking into account some likely decreased functionality experienced by people as they age.
• Concerns include the difficult manoeuvres required to park within and depart from the underground car park, and problematic egress from the car park along the proposed driveway with regard to gradient, width, lines of sight and potential flooding over a length of the access way. These will be difficult and potentially dangerous for an older person to negotiate on a day to day basis and would certainly raise anxiety of older people experiencing reduced functionality.

71 In her overview of literature, Dr Stubbs referred to various sections of the FDM to support her concerns as follows:

• The Floodplain Development Manual 2005 (Appendix M Flood Damages notes that there are 'tangible and intangible damages' that need to be considered, and where possible quantified, as part of a proper assessment of the social and economic costs of flooding. It notes that 'intangible damages' include 'the increased levels of emotional stress and mental and physical illness caused by the flood episode' and that a flood event is a 'traumatic event' for many victims, particularly with regard to loss of or damage to valued items, pets or property (for example, structural damage to buildings and/or facilities, and external items such as landscaping or parked cars); cost and time required for clean-up operations; disruption related to actual or threatened evacuation; and the experience of the flood event itself.
• There is likely to be a difference in the severity of impact between a widespread severe flood events requiring large-scale evacuation, which are largely the subject of the studies cited, and severe flooding of a more localised floodplain, which is the subject of this case.
• The relative severity of impacts for residents of the subject development compared with those reported in relevant studies is likely to depend on a range of factors related to the event and its aftermath, and to the degree of vulnerability, age, socio-economic status and existing health status of the older residents.
• Key factors are likely to include the rapidity and severity of the flood event, the extent and nature of physical damage (for example, to structures, gardens, landscaping, resident cars parked in the street), the extent and cost of external clean ups required, the experiences of residents during the flood event (for example, feeling fearful as floodwaters rise across the site, and in viewing rapidly flowing water surrounding their homes), and the loss of any things of value (for example, gardens or pets). The evacuation of or impacts on others in the immediate community could also be stressful for residents of the proposed development.
• The length of time which residents are required to live within a disrupted or damaged environment (for example, where there has been significant scouring of the site, loss of hard landscaping or gardens, or debris littering the site), any changes to their normal routine (for example, gardening, or using the outdoor BBQ or recreation areas for quiet enjoyment), and the cost or effort needed to clean up the site (for example, where insurance claims are denied or payments are delayed) are also likely to be sources of stress, and cause varying psychological difficulties for some residents, with severity again depending on the degree of damage or disruption, and the existing health status or vulnerability of the older person.
• Loss of external gardens, their attractive environment and daily routine or activities is also, in her experience, likely to impact more severely on the emotional wellbeing of an older person. The flood event itself is also likely to be very stressful, whether or not there is a need to evacuate.

CONCLUSIONS

72 The threshold issue in this case is whether the site is suitable for the proposed development considering its level of flooding risk.

73 The issue arises because the flood modelling evidence demonstrates that the site requires the construction of a floodway and is subject to high hazard flooding risk. In fact approximately 74% of the site is inundated in a 1:100 year flood event and 100% of the site is inundated in a probable maximum flood (PMF). Also, approximately 44% of the site has velocity-depth (V X D) product exceeding 0.4 sq m/s in a 1:100 year event. This value is the threshold for safe pedestrian movement.

74 The site also contains other physical constraints including a large number of significant trees and a section of an open creek which is part of council's stormwater system.

75 According to the applicant this senior living development proposal is an attempt to balance the constraints the site suffers with the ability to appropriately develop its land. (Transcript 23/10/2013 at p21 para 5).

76 The prevailing planning control against which this application must be assessed is the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP). Clause 3 of the SEPP requires, the Court to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004.

77 The other relevant controls include the Hornsby LEP 1994 and as the applicant concedes the NSW Floodplain Development Manual and, thereby a consideration of the social, economic, environmental and flood risk parameters to determine whether this particular development of flood plain is appropriate. (Transcript 23/10/2013 p 22 para 20)

78 The aims of the SEPP are to:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

79 Clause 4 (6) of the SEPP lists land in Schedule 1 (Environmentally sensitive land) to which the policy does not apply. This includes land described as:

(g) floodway and

(h) high flooding hazard.

80 However, as the subject land is zoned as Residential A (Low Density) Zone under HLEP 1994 without any designated floodway/high hazard flooding notation it is not caught by cl 4(6) of the SEPP. Insofar as H LEP 2013 came into force in 2013, it zones the land R2 Low Density Residential, also without any qualification about floodway restrictions.

81 Therefore, the Court accepts Mr Hemmings' submission that as the subject land is not described as floodway/high hazard floodway in the LEP, then the SEPP applies and the proposed development is permissible with consent. However, it rejects his further submission that the merits of the proposal are such as to warrant a conditional consent or that such a decision is consistent with the provisions of the FDM, which seeks to avoid the sterilisation of flood prone land.

82 Insofar as the Court accepts the current zoning, nevertheless compliance with the zoning does not automatically guarantee approval. Any such development application must satisfy an appropriate merit assessment, as has been undertaken in the subject application.

83 This assessment includes a consideration of the detailed flood modelling evidence from two very experienced flooding experts who offer competing views about the suitability of the site for this senior's living development. The Court was able to appreciate the magnitude of the flooding the site suffers from the private video of a flood event in 1990. Relevantly, the video clearly depicted the extent of flooding of the site at that time and the rapid ingress of floodwaters from Anthony Street It also showed the destruction of property and vegetation in the path of the floodwater including a part of the wall of the fibro garage. The video also made plain the fact that pedestrian access to Anthony Street during a flood of that nature was only through floodwater. The Court relies on the engineers' estimate that the storm in the video was of a frequency in the order of a 1:20 event. Needless to say a flood event of a greater 1:100 magnitude would have even greater impacts for the site and any development on it

84 Based on the agreed flood modelling scenarios, the applicant has proposed engineering solutions to mitigate the flooding impacts. A key component of these works includes the construction a flood basin in the Anthony Street front set back of the property and the construction of a floodway along the eastern side of the development. Other mitigation/safety factors include the raising of the finished floor levels of the units to be effectively clear of the 1:100 year flood event + 500 mm freeboard or the PMF.

85 The Court in its overall merit assessment of the proposal, has considered these components in the context of their cumulative impacts relative to the prevailing social, economic and ecological impacts within the SEPP framework.

86 These flood safety components discernable from the conceptual engineering plans developed during the hearing and tendered to the Court include the following:

• The excavation of a sump/holding basin in the Anthony Street front setback area, which collects and temporarily stores stormwater overflows from Anthony Street, as evident in the video. This basin has sloping sidewalls in the order of 1:3, which limits personal access. The basin walls are to be stabilised with Geoweb channel protection material to prevent scouring when overtopped.
• The construction of a floodway from the basin and along the eastern boundary of the building. The concept design is for a channel with generally vertical sides with a width of about 2.4m and variable depth in the order of 1.5m. The 2 m wide balconies for units 2, 3, and 5 are cantilevered over the floodway. In the 1:100 flood event the estimated velocity is 7 m/s at the front corner of Unit 2 and this transitions to about 5 m/s along the eastern boundary. The floodway is to be fenced to prevent access.
• The erection of a safety fence along the Anthony Street frontage comprising bollards and other structural elements to prevent vehicles being washed into the subject site.
• Rehabilitation of the creek banks downstream of the floodway.
• The construction of the driveway embankment to prevent flooding of the basement garage. This embankment is in the order of 1.2m high adjacent to the western boundary of the property.
• The utilisation of the existing culvert to provide access to Eyles Avenue. It appears that in the 1:100 flood event about half (9 m) its length will be inundated by about 300 mm for up to 30 minutes.
• A separate high - level pedestrian footpath from the elevated building platform to Eyles Avenue. This includes a separate high-level footbridge adjacent to the culvert. The travel distance from the northern most Unit 13 to Eyles Avenue is about 90 m.

87 These components are identified in order to assess firstly, whether the site is suitable for the development having regard to the extensive mitigation works necessary to address the flooding risk and secondly, how the development will fit into the existing residential neighbourhood.

88 The FDM was identified as a relevant control and it provides the guidelines for assessment of the merits of the proposal in terms of the flooding risk. However it is noted that the FDM is mainly focussed on the broader strategic approach to floodplain risk management and has limitations in applications for direct development assessment. Nevertheless it contains some relevant criterion in flood risk assessment, which the engineers have referred to.

89 Accepting the engineer's agreement that the aerial extents of inundation of the 5 year, 20 year and 100 year events are not expected to be significantly different and that approximately 74% of the site is inundated in the 100 year event, it is apparent that the majority of the site will be subject to regular levels of flooding inundation, which limits its utility. This restriction applies to the front setback area, the majority of the eastern side of the development whereby the drainage floodway will be fenced off. Also the northern part of the site has restricted utility.

90 As discussed these areas also experience a velocity x depth product (V x D) in excess of 0.4 sqm /s, which confirms as defined in the FDM, the high hazard character of the flooding on the site. This is of concern to the Court on the basis that the velocity of the stormwater flows at the site will be in the order of 5 m/s and the following advice in Figure L1 states:

1 At velocities in excess of 2.0 m/s, the stability of foundations and poles can be affected by scour. Also, grass and earth surfaces begin to scour and can become rough and unstable

2 The velocity of floodwaters passing between buildings can produce a hazard, which may not be apparent if only the average velocity is considered. For instance, the velocity of floodwaters in a model test has risen from an average of 1 m/sec to 3 m/sec between houses.

91 Although the engineering evidence is that the building will withstand the force of the flood the Court is concerned about the fact that the design of the development will increase the velocity of the floodwater to a speed of 7m/sec at the eastern corner of Building A for a duration of up to one hour during a 1:20 storm event. According to Mr Bewsher's evidence, this velocity is extreme. He describes the velocity in this area as "horrendously fast water". (Transcript 20/10/2013 p 47 paras 9-15).

92 The proposal is to use the eastern wall of Building A as part of the constructed floodway and with velocities of extreme levels at the pinch point, the Court is concerned that over time some scouring of the area adjacent to the floodway as anticipated by the FDM is likely to occur. The Court is also concerned about the design of the building that allows fast water to flow about 0.9 m below the balconies to the Units in Building A during a flood event for up to an hour. This design feature is in our assessment at odds with the aim of the SEPP to provide a development of good design. While Dr Martens gave evidence that the occupants of these units would likely sleep through such a flood event at night untroubled by the floodwater we do not believe based on Mr Bewsher's evidence that it is unreasonable to accept some people will not and may in fact be anxious. Furthermore, in our assessment of the evidence it is not unreasonable to expect that some occupants of the affected units may feel anxious in the above scenario with the water raging below their balcony and faced with a direction to stay inside or the option to egress via a 150m uncovered walkway cantilevered over the flood water to Eyles Street.

93 Therefore, having considered the forecast flooding outcomes, the Court has significant reservations about the internal site amenity and risks for residents in the proposed development arising from the regular flooding of the site as mentioned. An associated matter concerns impacts on adjoining properties. The flood modelling indicated that the there is likely to be a 10 mm to 50 mm increase in depth of floodwater on adjoining properties. Insofar as Mr Bewsher says this is unacceptable, the Court understands from the evidence that there are other possible design solutions that may address this situation. (Transcript 28/10/13 p 7 para 40). However, based on the evidence before the Court, in the overall flooding context this is considered a negative element of the proposal in the Court's assessment because the proposed development should control and minimise the disturbance and impacts of stormwater runoff on other adjoining properties: cl 36(a) of the SEPP.

94 This issue was addressed in terms of the Sustainable Water DCP wherein the watercourse element, the performance criteria provides that "Building works should be sited outside floodways". Whilst the subject application does not comply with this criterion, the Court accepts that it is subservient to the SEPP provisions and therefore this issue is a not ground for refusal of the application.

95 Insofar as the FDM refers to the broader management practices and policy options on flooding, this issue was canvassed in the subject hearing. In recognition of the flooding risk, the applicant proposes that in significant flooding events all residents should preferably "stay-in-place" within their units rather than evacuate. However Dr Martens agreed in the joint report that a detailed Emergency Management Plan (EMP) could subsequently be prepared. Such plan would include the details (Heads of Consideration) contained in Exhibit L (Attachment B).

96 However, Mr Bewsher based on his extensive flood management experience does not support this approach. He is of the opinion that private EMPs are an unreliable long term risk mitigation measure essentially because of the inability to enforce them. He referred the Court to the following provisions of N7 - Private Flood Plans, wherein it is stated that:

N7.1 Limitations of Private Flood Plans

Any form of response planning, but private planning in particular, is unreliable as a long term risk mitigation measure. This is because all plans must be prepared using assumptions about conditions (environmental and organisational) that are expected to apply in the future and which may prove to be wrong or at least very different to the actual event.

Floods are highly variable in frequency and severity and this influences two critical planning assumptions, available flood warning time and likely consequences. If, in an actual flood, there is a significant variation between assumptions and reality, even a well written plan may fail unless intelligent on-the-day adaptation is implemented.

N7.2 Private Plans as a Development Consent Condition

In a naive attempt to provide some sort of protection to council when it approves a DA in a flood risk area, some councils are imposing development consent conditions requiring site specific plans. Some consent conditions require the applicant to seek SES endorsement of their plan. Taking into account the preceding discussion about limitations of private plans, the SES is opposed to this approach and some specific points related to this policy are set out below:

• Conditioned private flood plans will only be prepared to secure the development consent, not because of a genuine commitment to taking some personal responsibility for risk management. Unless a plan is owned, understood, and practised by the owner/occupier, it will almost certainly be forgotten and fail to be effective;
• There is no workable process for quality control of private plans and the SES, having no resources available to service such a huge task across NSW, has no choice other than to refuse requests by an applicant for the SES to review their plan.

97 Having considered the applicant's primary position that residents are to "stay in place" within the premises and the aforementioned FDM limitations, the Court has considerable concerns about the ability to effectively achieve this outcome. We accept Mr Jackson's submissions on the basis of Dr Stubb's evidence that it will not be possible to restrict all resident's behaviour and require them to stay in place or choose a particular path of egress during a flood event. Her evidence is consistent with Mr Bewsher experience that that people will take the shortest egress in a flood event despite a direction to the contrary (Transcript dated 24/10/2013 p 13 at para 35 p16 para 15). In this case he believes some people will attempt to egress from Anthony Street and be exposed to unacceptable flood risk. (Transcript 24/10/2013 p11 at paras 12 -16; p12 at para 45; p 13 paras 5 - 50). His belief is based on his experience that "...people do irrational things in floodwater" (Transcript 24/10/2013 p 17 para 20).

98 Therefore consideration has been given to the other evidence on possible evacuation outcomes and social impact considerations. In this regard the Court notes that Dr Leonie said that an emergency plan should be required.

99 Building A contains 10 units whose shortest street pedestrian entry is directly connected to Anthony Street (approximately 32 m). In these circumstances it is likely some residents will regularly use this access in fair weather due to its convenience rather than the basement car park or longer route via the elevated footway to Eyles Avenue some 150m away. Likewise visitors will probably prefer this access point because there is no convenient visitor car parking in the basement and the pedestrian access from Eyles Avenue is considerably longer. Therefore some Building A residents are likely to have a familiarity and preference with this access/egress route.

100 However in many storm events such as the actual 2009 storm, this access route will be flooded and dangerous to an extent that evacuation would not be safe via this possible route. Consequently, this risk needs to be managed, particularly if the flooding occurs in the night - time. Considering the uncertainty of extent and rate of rising flooding waters, the Court has some difficulties in accepting the applicant's evidence that residents would instinctively avoid this route, in preference to the longer Eyles Avenue route.

101 Accordingly, the Court gives significant weight to Mr Bewsher's opinion that any evacuation via this route would be high risk and undesirable. Therefore some fail/safe management arrangement would be required to prevent any entry/exit movements by residents via Anthony Street in significant storm events, including those less than the design storm event of 1:100 years.

102 The alternative pedestrian access could be undertaken via the elevated footpath to Eyles Avenue. But this is a distance of approximately 150 m, which would have convenience and safety limitations for some residents, particularly some older, frail residents and those disabled if they choose to live in the development, as stated by Dr Stubbs. This includes any evacuation choice by residents during the night time period when visibility is limited.

103 Apart from this if some residents choose to evacuate by car, they would be guided by visual and aural signals in the basement garage. However, due care would need to be exercised because in larger storm events the culvert could be covered with up to 300 mm of flowing water for relatively short periods. This presents additional risks if the evacuation is at night. The Court does not consider this situation adequately satisfies the provisions of cl 38 of the SEPP for safe and convenient access for residents and visitors

104 Consequently, in view of the significant flood risk associated with the proposed development of this land partially situated within a high hazard area that depends on a constructed floodway and notwithstanding that the buildings are above the PMF, the Court considers that in the event of development consent being granted, then some form of flood emergency management plan (EMP) is essential. At least to alert potential residents of the flood risks prior to any purchase.

105 A final EMP was not available at the time of the hearing because the parties understood it could be dealt with by way of a condition. Despite that agreement the Court requested the applicant to provide a document setting out the matters any EMP would cover and exhibit L was tendered (Attachment B). The Court then invited the flood experts to access the draft document.

106 Mr Bewsher found that exercise difficult essentially because he took the view that the final EMP should be available at the time of assessment. He said that the approach adopted in this application was not consistent with the provisions of N 7.2 of the FDM (Transcript 23/10/2013 p 91 para 35). Dr Martens took a different view. He indicated that the final EMP could cover the heads of consideration in exhibit L and be the subject of a condition of consent. For our part the absence of the final EMP in this case is not of itself fatal to this application because we can understand its final terms from exhibit L. However, we are concerned about how the final EMP will be notified to occupants of the development to alert them to the flood risks and the preferred safety procedures in the event of a significant flood including egress options. The evidence that the terms of the EMP will be communicated via onsite signage and/or distributed via the body corporate and in contract documentation does not overcome our fundamental concern about informing occupants and visitors/carers in the development about flood risk and recommended action in the event of a flood.

107 Mr Bewsher describes an inherent tension in the development of this site for seniors because of the Anthony Street egress and the prospect that someone might walk into the floodwaters from that egress (Transcript 24/10/2013 p16 para 20; p 73 paras 30 - 35) We understand his concern for seniors is based on his experience of people's reactions to actual floods. In fact in response to the Court's inquiry he said that tension would be removed if the development were not for seniors or if the development was built on parts of the flood prone land that are not dangerous because, "...that's what the best practice floodplain risk management specifies" (Transcript 24/10/13 p 31 para 35). He expressed concern about the accessibility for frail or old people or those in wheel chairs for example at night in the rain of the primary egress proposed along the 150 m part elevated walkway to Eyles Street. In his assessment he thought it more likely that the Eyles Street egress would be bypassed by people opting for the shorter path from Anthony Street (Transcript 24/10/2013 p 16 para 20).

108 Dr Martens disagrees and expressed the view that he believed this to be unlikely.

109 Both experts rely on their respective experience of floods and people's reactions to support their different views. Mr Bewsher's concern for some seniors with cognitive disability and or with frailty taking the shortest path and walking into floodwater in Anthony Street cannot in our assessment be ignored because it is supported by Dr Lonie's evidence. She told the Court "...It might be possible that a person over the age of 55 years with a cognitive disability might react in a different manner to their cognitively health aged matched contemporaries in the event of a flood, with some forms of cognitive disability likely to be associated with alterations in the manner in which a person might be expected to react to a flood event and other forms of cognitive disability would not". She conceded, "...there is a risk you can never say something will never happen". Relevantly, the video showed someone wading in the floodwater on Anthony Street and a crowd further up the street looking on. On one view the video supports Mr Bewsher's concern that some people might egress onto Anthony Street and straight into floodwater.

110 Insofar as Dr Stubbs and Dr Lonie presented their respective opinions, it is apparent to the Court that these opinions are based on diverse backgrounds, which have limited application to the subject proposal, particularly due to the lack of actual studies on psychological impacts arising from comparable flooding experiences.

111 We accept the evidence that it is difficult to accurately define the cognitive responses of the range of likely occupants given the range of people the development is designed to accommodate: cl 18. Despite that cl 32 precludes the Court from issuing a consent to this application unless it is satisfied that this development has demonstrated adequate regard to the Design Principles in Division 2. In short we need to be satisfied that the development demonstrates adequate regard to the Accessibility design principles in cl 38 of the SEPP:

(1)...obvious and safe pedestrian links from the site that provide access to public transport or local facilities, and,

(2)...attractive, yet safe, environments for pedestrians and motorise with convenient access and parking for residents and visitors.

112 It also should be able to accommodate disabled residents who may have different cognitive abilities and physical capacities as well as able bodied over 55's and any carers or visitors to the site.

113 In these circumstances where such residents may prefer to evacuate in storm events, this aspect was addressed to some extent by Dr Stubbs and the Court accepts her opinion that this development is unlikely to provide safe or convenient access for occupants who are frail, or in cognitive decline, wheel chair bound as anticipated by cl 18 of the SEPP. In our assessment of the evidence the proposed 150 m uncovered pedestrian link from the foyer of Building A to Eyles Road is not an obvious and safe and convenient pedestrian link for pedestrians who are frail or immobile or in cognitive decline.

114 Dr Stubbs' evidence included reference to her experience of sections of the FDM. In particular M2.3 that provides:

M2.3 Emotional, Mental & Physical Health Costs

A flood imposes a range of intangible damages on flood victims. These include the emotional, mental and physical ill health of the victims. Although it is impossible to fully measure these costs in financial terms, they are discussed in some detail here in view of their significance to victims and to the post-flood recovery of the community.

115 Whilst the FDM provides further explanation of the behaviour of flood victims, e.g. the psychological effects on people after the 1974 flood, the Court considers this information is of a significantly different scale and more relevant to the broader strategic flood planning process.

116 Nevertheless, the primary aim of the FDM is:

to reduce (Court's emphasis) the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods...

117 Furthermore, s 2.6 of the FDM lists a number of points in floodplain risk management, which includes:

minimising personal danger to residents, visitors and emergency response personnel and community flood damage,,,

118 Applying these aims and objectives to the subject proposal, it is apparent that the proposal involves an intensification of development on the site from the two existing dwellings to 13 medium density type units under the SEPP. This potentially increases the number of household units and likely persons exposed to the flooding risk. Notwithstanding that the building and pathway components are proposed above the PMF, the Court considers that the overall use of this flood liable site increases exposure of residents to the flooding risks and is therefore not consistent the aims to reduce risks and minimise personal danger or the design principles of the SEPP in cl 38. This conclusion is consistent with Mr Bewsher's evidence based on his experience that the site is not suitable for the proposed development, because of the flood risk to occupants.

119 The other contention concerns the planning evidence regarding whether the built form is a satisfactory response to the site constraints and whether the development demonstrates adequate regard to the design principles set out in Division 2 of the SEPP and a consideration of the Guidelines referred to in cl31 of the SEPP. Following the amendment and clarification of elements of the development, the planners agreed to a number of the particularised contentions. The Court accepts that the provisions of cl 50 of the SEPP regarding standards that cannot be used to refuse development for self-contained dwellings have been substantially been complied with.

120 However, Mr Kennan was not satisfied with the impact of the development on the residential amenity and streetscape based on his assessment of the Seniors Living Guidelines. He characterised the nearby neighbourhood as one of a traditional low density residential area comprising detached dwelling houses, which are appropriately setback from the street frontage with that front setback structured in such a manner that it forms part of the accessible and usable open space of the individual dwellings. Accordingly, he says that the existing front setback area on the subject is consistent with this. In his planning assessment the proposal involves a significant change to this setback area with the construction of the deeper holding basin, associated 1:3 batters, fenced off area along the Anthony Street frontage and pathway, which limits its relative access and amenity compared to the neighbouring properties. He does not consider the proposal adequately satisfies the Guidelines.

121 The Court has considered Mr Fletcher's disagreement to this because he says that the open space access function is achieved elsewhere on the subject land and that it can satisfactorily serve a dual purpose as common open space and as flood detention area.

122 Having considered these disparate opinions, the Court agrees with Mr Kennan's characterisation of the streetscape from its observations at the view. The Court also agrees with Mr Kennan that the proposed drainage works significantly alters the existing natural landform, landscaping and access and use for this area. The change to a predominant drainage function, does not in the Court's assessment minimise impacts on the streetscape, nor does it enhance the desirable characteristics of maintaining natural landform, allowing convenient access for active and passive uses, including gardening which is a common feature in the streetscape.

123 The Court also notes that the proposal does not appear to reasonably satisfy the Guideline objective to provide a high level activation and passive surveillance to the street, particularly considering that the main entry lobby is located some 32 m further along the side boundary and behind an entry gateway. Whilst this would not be given determinative weight, the Court considers this a negative design element of the proposal.

124 Even though the main entry to the development is via Eyles Avenue, nevertheless the Court considers the Anthony Street frontage will generate a significant level of use because it provides convenient fair weather pedestrian access to the 10 units in Building A.

125 Insofar as Mr Fletcher says the limitation on access to the front setback area can be offset to some extent by the two main areas of communal open space on the eastern side of the Building B, these areas are of a diminished value considering the restricted access for the residents, i.e. predominant access via steps or ramp to the natural ground levels. This limitation in utility also includes the proximity to the floodway to be constructed.

126 Whilst these areas are designated communal open space, nevertheless the Court considers their usage and amenity will be compromised by regular flooding and the need and cost for regular clean ups. This does not in the Court's assessment reasonably satisfy the guideline in section 5 Internal Amenity that communal open space is "clearly and easily accessible to all residents and easy to maintain". Whilst not fatal to the application, because communal open space is not mandatory under the SEPP the Court considers this a further negative element.

127 In terms of the issue concerning the impact on Trees 21, 22 and 29, it does appear to the Court that whilst they could be retained, there is still a significant risk to their longevity based on Mr Paroissien's evidence. If the applicant's preferred position is adopted for the removal of these trees, then the Court does not consider this would satisfy the provisions of the guidelines requiring a satisfactory response to the context of the area. Considering the overall removal of vegetation and likely impacts on Trees 21, 22 and 29, the Court does not consider the development adequately protects and enhances the existing vegetation, based on its observations at the view. Furthermore, we do not think that the removal of a healthy tree to accommodate the proposed tunnel for the underground carpark of the development is reasonable or demonstrates adequate regard to the design principle in cl 33(f) of the SEPP which provides for the retention (wherever reasonable) of major existing trees. This is a further negative aspect of the proposal and is a reason for refusal of consent under cl 32 of the SEPP.

128 In summary then, having considered the evidence, the submissions and undertaken a view the Court does not consider this application merits consent. Whilst the planning controls permit this form of development on the residential site, nevertheless it is significantly constrained by the flood liability of the site. It does not satisfy the design provisions of the SEPP with respect to streetscape in cl 33(a) or the provision of safe and convenient pedestrian access for residents and visitors who may be frail or immobile as provided in cl 38. The development proposes a significant change to the front setback at Anthony Street based on Mr Kennan's evidence.

129 The Court has considered Mr Hemmings' submission that as this is a permissible development, it should not be refused because that would result in the sterilisation of the site, which would be contrary to the aims of the FDM. However, the Court does not accept this proposition because it is primarily concerned about the intensity of the proposed development and the unacceptable associated flooding risks to persons and property. We agree with Mr Bewsher's final evidence that it is "...not that you can't have seniors living on flood prone land, I think you can. But it has to be in parts of the flood prone land that aren't dangerous. That's what the best practice floodplain risk management specifies." (Transcript 24/10/2013 p 31 para 35)

130 It is noted that other less intensive residential developments on the site could be considered on their merits. The intensification arises due to the additional building area and ancillary works to facilitate the 13 units whereas the existing lots each contain one dwelling currently.

131 The likely outcome is that more residents are potentially exposed to the flooding risk than a less dense development. An alternative development could allow for greater retention of the natural watercourse without requiring the complete construction of a floodway immediately adjacent to the residential units, which carries fast rising and flowing floodwater during storm events.

132 Whilst the planning instruments do not mention floodway or high hazard restrictions for this site, nevertheless the applicant's flood site specific flood modelling has established that a significant part of the development site is classified as high flooding hazard. Consequently, the proposed development necessitates the construction of a floodway and relatively substantial ancillary drainage works to address the high hazard flood risk. Therefore as a matter of discretion, the Court does not consider it appropriate to grant conditional consent in the circumstances of this application.

133 In exercising the Court's discretion consideration has been given to both the quantitative and qualitative aspects of the evidence. Insofar as the flooding issue is the threshold matter, the Court does not consider consent should be granted because:

• The development is significantly impacted by the high hazard floodway requirement.
• The development relies on significant modifications within the front setback area to construct a flood storage basin which is connected to the floodway on the eastern side of the building that carries fast rising, high velocity flows in the design storm event.
• The velocity x depth product for the site significantly exceeds the accepted maximum safe limit of 0.4 sqm/sec.
• The main communal open space areas are at ground level and are likely to be regularly (i.e. 1:5 year flood events) subject to various degrees of inundation that with limit use and incur maintenance costs, which the Court considers undesirable for a seniors/disabled residents development.

134 In addition to this, based on the Court's observations at the view, the proposed stormwater basin in the front setback area, with restricted access, introduces a foreign element into the streetscape that does not minimise impacts or enhance the existing streetscape. This will be exacerbated by the erection of the car barrier/bollards along the Anthony Street frontage. Nor does it enhance the desirable characteristics of full access for active recreation such as gardening due to the scale and form of the flood mitigation works in this setback area.

135 Considering these key issues and the other identified smaller negative matters, it is the Court's assessment that the cumulative effect of these matters is that this application does not merit consent. Ultimately, the Court does not consider this site is suitable for the proposed development based on the expert opinion of Mr Bewsher and Mr Kennan as discussed above concerning the balance of flooding/safety risks and impacts on the internal amenity of the development and its adverse impact on the streetscape.

Court orders

136 The Court orders that:

(1) The appeal is dismissed.

(2) Development consent to DA 627/2012 for the construction of a Seniors Living development comprising 13 dwellings, flood mitigation works including floodway construction and restoration of the watercourse at 15 Eyles Avenue, Epping and 15 Anthony Street, Carlingford is refused.

(3) The exhibits are returned except for 1, 8, 9 and A.

R Hussey

Commissioner of the Court

Susan Dixon

Commissioner of the Court

ATTACHMENT A

ATTACHMENT B

Decision last updated: 17 February 2014