Ko v Strathfield Municipal Council [2021] NSWLEC 1099

Ko v Strathfield Municipal Council [2021] NSWLEC 1099

The Court was not satisfied that the proposed driveway crest, self-closing flood barriers and site drainage adequately managed flood risk or risk to life. The applicant's flood modelling could not be relied on because it depended on the continuing presence of brick fences, including a fence outside the site that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 February 2021
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application DA 2020/141 for a Dwelling House With Basement Garage / Hearing Following Unsuccessful Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application for Dwelling House' 'basement Garage on Flood Affected Land' 'flood Planning Level' 'driveway Crest and Self Closing Flood Barriers' 'compatibility With Flood Hazard' 'risk to Life From Flood']
['environmental Planning and Assessment' 'development Consent' 'flood Planning'] ['development Application for Dwelling House' 'basement Garage on Flood Affected Land' 'flood Planning Level' 'driveway Crest and Self Closing Flood Barriers' 'compatibility With Flood Hazard' 'risk to Life From Flood']

Source-derived case record

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application DA 2020/141 for a Dwelling House With Basement Garage / Hearing Following Unsuccessful Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the proposed development was compatible with the flood hazard of the land under cl 6.3(3)(a) of the Strathfield Local Environmental Plan 2012.' 'Whether the proposed development incorporated appropriate measures to manage risk to life from flood under cl 6.3(3)(c) of the Strathfield Local Environmental Plan 2012.' 'Whether the driveway crest, self-closing flood barriers and site drainage were adequate alternative flood mitigation measures for a basement below the 1 in 100 year flood level.' 'Whether modelling that relied on brick fences, including a fence not located on the subject site, could be relied upon to assess future flood risk.']

Ratio Decidendi

The Court was not satisfied that the proposed driveway crest, self-closing flood barriers and site drainage adequately managed flood risk or risk to life. The applicant's flood modelling could not be relied on because it depended on the continuing presence of brick fences, including a fence outside the site that could be replaced. The basement floor level did not comply with the relevant flood affected property controls, the self-closing flood barriers were not a sufficiently fail-safe method of protection for a dwelling, and the driveway crest was below the relevant 1 in 100 year flood level. Because the Court was not satisfied that the basement was compatible with the land's flood...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA 2020/141) for the construction of a two-storey dwelling house with basement garage at 6 Heyde Avenue, Strathfield, is refused.' 'Exhibits 1-5 are returned.']