The Land and Environment Court, with Commissioner Chilcott presiding, has recently refused a development application for the subdivision of one lot into two lots, associated internal fencing, landscape and stormwater works on the land at 5 Ravenswood Street, Canley Vale. An existing dwelling is constructed on the front portion of the site and the proposed subdivision would facilitate the future construction (not proposed as part of the DA) of a dwelling at the rear, with the two dwellings on separate lots.
The site of the proposed works is located between the floodplains of Prospect Creek, located to its east, and Long Creek located to its rear. The site is subject to flooding from both waterways and is therefore mapped as being located in a medium risk flood precinct to the front of the lot, and as a high risk flood precinct to the rear.
The principle contention in the Appeal concerned flooding. The Council contended that the Proposed Development should be refused because:
(a) it did not comply with the controls in Part 11 of Fairfield DCP and did not achieve the objectives of those controls; and
(b) it did not satisfy the provisions of cl 6.3 of FLEP.
The Commissioner considered the evidence provided by the parties flooding engineers and carefully examined the controls in the Fairfield DCP. Ultimately the Commissioner determined that the proposed development should not be approved because “as indicated within Schedule 6 of Chapter 11 of FDCP the subdivision of land and residential use for a dwelling are not suitable land use categories to be undertaken in a high flood risk precinct, which is the flood risk of proposed Lot 2 within the subject site”. The Commissioner further found that the proposal does not satisfy the objectives or controls in the Fairfield DCP because it will result in an increased risk to human life (it involves the intensification of the residential use of a high flood risk precinct), effective warning time and reliable access is not available for evacuation from flood affected areas, it would not be possible to relocate vehicles, undamaged, to an area with substantially less risk from flooding in the event of a major flood event, and “’procedures could not be put in place (such as warning systems, signage or evacuation drills) so that people are aware of the need to evacuate and relocate motor vehicles during a flood and are capable of identifying an appropriate evacuation route”.
The Commissioner then posed the question: Is the Proposed Development inconsistent with the objectives and provisions of cl 6.3 of FLEP?
The development application was lodged in December 2019. Relevantly, on 14 July 2021 (prior to the hearing of the Appeal in September 2021), two amendments were made to the provisions of the Fairfield Local Environment Plan 2013 (“FLEP”) concerning flood planning:
- State Environmental Planning Policy Amendment (Flood Planning) 2021 (“the Flood Planning SEPP”) commenced, which repealed clause 6.3 of FLEP, pursuant to the provisions of Schedule 1 of the Flood Planning SEPP; and
- the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (“Order 2021”) commenced, which effectively inserted a new clause 5.21 into FLEP, pursuant to the provisions of Schedule 1 of Order 2021.
Commissioner Chilcott confirmed that clause 8(1) of Standard Instrument (Local Environmental Plans) Order 2006 requires that amendments made by an amending order, such as Order 2021, do not apply to applications made, but not determined, before the commencement of the amending order. It was also noted that the Flood Planning SEPP repealed clause 6.3 of FLEP with no savings provision. In these circumstances, the Council put to the Court that clause 6.3 may no longer apply to applications made, but not determined before 14 July 2021 (the subject application). In relation to the above provisions, the Commissioner stated as follows:
Noting that this outcome was unlikely to reflect the intent of the statutory amendments made to local environmental plans, including FLEP, through the provisions of Order 2021 and the Flood Planning SEPP, the Parties submitted that:
- the provisions of cl 6.3 of FLEP should apply to the Proposed Development because Schedule 1 of the Flood Planning SEPP is entitled “Amendments consequent on the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021”, and as so the provisions of cl 6.3 of FLEP should only be considered to have been repealed following the provisions of the new cl 5.21 taking effect in relation to the determination of any development application; and
- notwithstanding this, if the Court determined that cl 6.3 of FLEP did not formally apply to the determination of the Applicant’s development application in this appeal, then its provisions might still be considered by the Court as a matter of public interest.
Commissioner Chilcott relied on the decision in IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434, where Commissioner Bish accepted that Order 2021 doesn’t require the consideration of repealed clauses as they are not identified in Order 2021 (hence clause 6.3 of FLEP doesn’t apply to the application) and that the development application was saved from consideration of the new provision by clause 8 of the Standard Instrument (Local Environmental Plans) Order 2006. The Commissioner further stated:
Notwithstanding this conclusion, I also accept the submission of the Parties that I could consider the provisions of former cl 6.3 of FLEP as a matter of public interest, as I agree with the Respondent (see above at [45]) that it was unlikely that the omission of flood planning consideration in determining the outcomes of development applications on flood prone land was the intent of the statutory amendments made to local environmental plans, including FLEP, through the Flood Planning SEPP and Order 2021.
However, because the Commissioner had “already concluded that the Applicant’s development application should not be approved … for reasons related to its inconsistency with the controls of Chapter 11 of FDCP and the non-achievement of the objectives of those controls, there is no requirement for me to consider the provisions of the former cl 6.3 of FLEP, and any such consideration would be otiose.
Commissioner Chilcott concluded in this case that the proposed development should be refused because:
- it does not satisfy the relevant controls of section 11.8 of FDCP and does not achieve the objectives of those controls;
- it does not provide a feasible alternative to the controls and does not merit the application of flexibility in the application of the controls pursuant to the provisions of s 4.15(3A)(b) of the EP&A Act; and
- approval of the Proposed Development is not in the public interest.
The result was a win for the Council in relation to the subdivision of land in a high risk flooding location and the application of its DCP controls.
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