Smith v Pittwater Council [2013] NSWLEC 1145

Smith v Pittwater Council [2013] NSWLEC 1145

The development application should not be refused on flood risk grounds because Part B 3.13 of the DCP did not require the risk analysis outcome sought by the council, the Flood Plain Risk Management Strategy relied on by the council had not been exhibited or adopted, the council's opposition to shelter in place was not advocated in the DCP, the risk analysis depended on unreliable assumptions, there were no studies guiding assessment of the individual risk in the circumstances, and the experts agreed there was no issue with loss of life associated with flooding impacts for ambulance need, heart attack or stroke risks. As the development complied with Part B 3.13 of the DCP and there were...

Jurisdiction
Australia
Judgment Date
21 May 2013
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Decision After Conciliation Conference Under S 34 of the Land Environment Court Act 1979 Was Terminated and Parties Consented to Disposal of the Proceedings Forthwith
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'shop Top Housing' 'flood Risk' 'risk to Life' 'development Control Plan Compliance']
['planning and Environment Law'] ['development Application' 'shop Top Housing' 'flood Risk' 'risk to Life' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Decision After Conciliation Conference Under S 34 of the Land Environment Court Act 1979 Was Terminated and Parties Consented to Disposal of the Proceedings Forthwith

Legal Issues

  1. 1 ['Whether the proposed shop top housing development should be refused because of unacceptable risk to life of future occupants during flooding, particularly an individual requiring an ambulance during a flood event.' 'Whether the development complied with relevant flood controls in Pittwater 21 Development Control Plan - Amendment 6, Part B 3.13.']

Ratio Decidendi

The development application should not be refused on flood risk grounds because Part B 3.13 of the DCP did not require the risk analysis outcome sought by the council, the Flood Plain Risk Management Strategy relied on by the council had not been exhibited or adopted, the council's opposition to shelter in place was not advocated in the DCP, the risk analysis depended on unreliable assumptions, there were no studies guiding assessment of the individual risk in the circumstances, and the experts agreed there was no issue with loss of life associated with flooding impacts for ambulance need, heart attack or stroke risks. As the development complied with Part B 3.13 of the DCP and there were...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No N0136/11 for the construction of a Shop Top Housing development at 13 Gondola Road, North Narrabeen is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibits 1 and A.']