Ward v Port Stephens Council [2023] NSWLEC 1423

Ward v Port Stephens Council [2023] NSWLEC 1423

The proposal for a dwelling on an approved mound above the flood planning level in an area mapped high hazard floodway is permissible with consent. Performance-based measures proposed, including a flood refuge above the PMF, strict emergency planning (FERP), and conditions limiting occupancy, sufficiently minimise risk to life consistent with DCP objectives. The DCP does not prohibit dwellings in high hazard floodways provided performance-based solutions are demonstrated, and the amended planning controls do not retrospectively alter rights associated with a lodged but undecided application. The risk to property is addressed; suitability of the site and the public interest are satisfied....

Parties
Applicant: Neil Andrew Ward; Applicant: Bronwyn Patricia Ward; Respondent: Port Stephens Council
Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Class 1 Development Appeal / Judgment After Final Hearing
Outcome
Appeal upheld; development consent to be granted subject to conditions
Legal Topics
Development Application, Floodplain Risk Management, Development Control Plans, Suitability of Land for Development, Consent Conditions, Risk to Life From Flooding
Planning and Environment Law Local Government Law Development Application Floodplain Risk Management Development Control Plans Suitability of Land for Development Consent Conditions Risk to Life From Flooding

Case Brief

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Parties

Neil Andrew Ward

Applicant

Bronwyn Patricia Ward

Applicant

Port Stephens Council

Respondent

Procedural Posture

Class 1 Development Appeal / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the proposed dwelling on flood prone land is permissible with consent under the planning controls
  2. 2 Whether the performance based solutions (including a flood refuge and FERP) sufficiently minimise risk to life to justify development consent
  3. 3 Application of amended flood planning controls and flood hazard categorisation in the assessment of the proposal

Ratio Decidendi

The proposal for a dwelling on an approved mound above the flood planning level in an area mapped high hazard floodway is permissible with consent. Performance-based measures proposed, including a flood refuge above the PMF, strict emergency planning (FERP), and conditions limiting occupancy, sufficiently minimise risk to life consistent with DCP objectives. The DCP does not prohibit dwellings in high hazard floodways provided performance-based solutions are demonstrated, and the amended planning controls do not retrospectively alter rights associated with a lodged but undecided application. The risk to property is addressed; suitability of the site and the public interest are satisfied....

Court Disposition

Appeal upheld; development consent to be granted subject to conditions

Orders

  • Within 14 days, parties to confer and file agreed conditions of development consent reflecting the judgment.
  • If parties cannot agree, each party to file and serve their version of the conditions within 14 days, providing a Word copy to the Court.