Hackett v Hawkesbury City Council [2006] NSWLEC 503

Hackett v Hawkesbury City Council [2006] NSWLEC 503

The development application failed because the existing riverfront building was in a high hazard floodway, its floor would be inundated on average every two years and by about 9.4 m in a 1 in 100 year flood, the applicants could not establish a residential approval or entitlement for the building, and reliance on private evacuation arrangements did not satisfactorily address risks to personal safety. Clause 25(3) applied to the proposed habitable use, the SEPP 1 objection did not show that compliance with the flood floor level standard was unreasonable or unnecessary, and approval would be contrary to the public interest and risk creating an undesirable precedent.

Jurisdiction
Australia
Judgment Date
21 August 2006
Procedural Posture
Development Application Appeal / Judgment on Appeal Against Council's Refusal of a Development Application
Outcome
Appeal dismissed; SEPP 1 objection disallowed; development consent refused.
Legal Topics
['development Consent' 'use of Existing Building as a Tourist Facility' 'flood Liable Land' 'high Hazard Floodway' 'sepp 1 Objection' 'evacuation and Access' 'waste Water Disposal' 'structural Stability' 'public Interest']
['environmental and Planning Law' 'local Government Law'] ['development Consent' 'use of Existing Building as a Tourist Facility' 'flood Liable Land' 'high Hazard Floodway' 'sepp 1 Objection' 'evacuation and Access' 'waste Water Disposal' 'structural Stability' 'public Interest']

Case Brief

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Procedural Posture

Development Application Appeal / Judgment on Appeal Against Council's Refusal of a Development Application

Legal Issues

  1. 1 ['Whether the site and existing building were suitable for use as a tourist facility given flooding risks.' 'Whether cl 25(3) of Hawkesbury Local Environmental Plan 1989 applied to the proposed use and required a SEPP 1 objection.' 'Whether the SEPP 1 objection to the floor level development standard was well founded.' 'Whether evacuation arrangements could adequately address risks to personal safety.' 'Whether approval would create an undesirable precedent for similar riverfront buildings.']

Ratio Decidendi

The development application failed because the existing riverfront building was in a high hazard floodway, its floor would be inundated on average every two years and by about 9.4 m in a 1 in 100 year flood, the applicants could not establish a residential approval or entitlement for the building, and reliance on private evacuation arrangements did not satisfactorily address risks to personal safety. Clause 25(3) applied to the proposed habitable use, the SEPP 1 objection did not show that compliance with the flood floor level standard was unreasonable or unnecessary, and approval would be contrary to the public interest and risk creating an undesirable precedent.

Court Disposition

Appeal dismissed; SEPP 1 objection disallowed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'The SEPP 1 objection to the development standard in subcl 25(3) of the Hawkesbury LEP is disallowed.' 'Development consent No. DA0854/03 for the use of an existing building at 16 Manns Road, Wilberforce, for the purposes of a tourist facility is refused.' 'The exhibits may be returned...