Anacapri Holdings Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1006

Anacapri Holdings Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1006

The proposed modification to condition 22 was refused because the council's Flood Risk Management Policy had been advertised, formally adopted, in existence in different forms since around 1983, directed to protecting flood prone land from inundation, not shown to conflict with other relevant policy, not shown to have been inconsistently applied, and not shown to contain significant flaws. In the absence of proper expert drainage or flooding evidence or a flood study supporting the applicant's alternative levels, it would be unsound to adopt an arbitrary minimum floor level for future development. The applicant's reliance on the 1980 flood map and Flood Level Assessment did not justify...

Jurisdiction
Australia
Judgment Date
19 January 2012
Procedural Posture
Class 1 Appeal Against a Condition Imposed on Approval of Development Application T6 11 95 for a 2 Lot Subdivision / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Was Terminated With No Agreement; Parties Consented to the Acting Senior Commissioner Disposing of the Proceeding Forthwith Under S 34(4)(b)
Outcome
The appeal was dismissed and the proposed amendment to part condition 22 was refused.
Legal Topics
['modification of Development Consent Condition' 'minimum Habitable Floor Level' 'flood Planning Level' 'weight Given to Council Policy' 'subdivision']
['planning and Environment' 'development Consent' 'floodplain Management'] ['modification of Development Consent Condition' 'minimum Habitable Floor Level' 'flood Planning Level' 'weight Given to Council Policy' 'subdivision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against a Condition Imposed on Approval of Development Application T6 11 95 for a 2 Lot Subdivision / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Was Terminated With No Agreement; Parties Consented to the Acting Senior Commissioner Disposing of the Proceeding Forthwith Under S 34(4)(b)

Legal Issues

  1. 1 ["Whether part of condition 22 requiring habitable floor levels for future buildings on Lots 121 and 122 to be at or above the flood planning level under Kempsey Shire Council's Flood Risk Management Policy should be modified as proposed by the applicant." "Whether Kempsey Shire Council's Flood Risk Management Policy should be given significant weight despite the absence of a proper flood study for Crescent Head." "Whether the applicant's Flood Level Assessment and submissions justified adopting a lower or fixed flood planning level for future development on the site."]

Ratio Decidendi

The proposed modification to condition 22 was refused because the council's Flood Risk Management Policy had been advertised, formally adopted, in existence in different forms since around 1983, directed to protecting flood prone land from inundation, not shown to conflict with other relevant policy, not shown to have been inconsistently applied, and not shown to contain significant flaws. In the absence of proper expert drainage or flooding evidence or a flood study supporting the applicant's alternative levels, it would be unsound to adopt an arbitrary minimum floor level for future development. The applicant's reliance on the 1980 flood map and Flood Level Assessment did not justify...

Court Disposition

The appeal was dismissed and the proposed amendment to part condition 22 was refused.

Orders

  • ['The appeal is dismissed.' 'The amendment to part condition 22 of the approval by Kempsey Shire Council of Development Application T6-11-95 for a 2-lot subdivision at 36-38 Pacific Street, Crescent Head is refused.' 'The exhibits are returned.']