Percy & anor v Wollongong City Council [2014] NSWLEC 1102

Percy & anor v Wollongong City Council [2014] NSWLEC 1102

The Court gave considerable weight to Wollongong City Council's adopted conduit blockage procedure and flood model because the policy was based on extensive local data collection, consultation and consistent application, and had been incorporated into relevant planning controls. The Court accepted the council's flood planning level of 15.19m AHD. Because that level was above the lowest habitable floor level of 13.76m AHD, the proposal could not comply with cl 7.3(3)(a) of Wollongong Local Environmental Plan 2009, so development consent could not be granted and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
28 May 2014
Procedural Posture
Class 1 Appeal Against Refusal of Development Application DA 2013/601 / Final Judgment After Hearing
Outcome
The appeal is dismissed.
Legal Topics
['development Application for Alterations and Additions' 'flood Planning Level' 'conduit Blockage Policy' 'habitable Floor Levels' 'wollongong Local Environmental Plan 2009 Cl 7.3' 'wollongong Development Control Plan 2009 Flood Controls']
['environmental Planning and Assessment' 'development Control' 'floodplain Management'] ['development Application for Alterations and Additions' 'flood Planning Level' 'conduit Blockage Policy' 'habitable Floor Levels' 'wollongong Local Environmental Plan 2009 Cl 7.3' 'wollongong Development Control Plan 2009 Flood Controls']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application DA 2013/601 / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the applicable flood planning level for the site should be determined using Wollongong City Council's adopted conduit blockage procedure and flood model or the applicants' alternative modelling." 'Whether the proposed development complied with cl 7.3(3)(a) of Wollongong Local Environmental Plan 2009 by having all habitable floor levels above the flood planning level.' 'Whether consent could be granted for the proposed alterations, dwelling addition and storage shed on flood liable land.']

Ratio Decidendi

The Court gave considerable weight to Wollongong City Council's adopted conduit blockage procedure and flood model because the policy was based on extensive local data collection, consultation and consistent application, and had been incorporated into relevant planning controls. The Court accepted the council's flood planning level of 15.19m AHD. Because that level was above the lowest habitable floor level of 13.76m AHD, the proposal could not comply with cl 7.3(3)(a) of Wollongong Local Environmental Plan 2009, so development consent could not be granted and the appeal had to be dismissed.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.' 'Development application DA-2013/601 for alterations and additions to an existing dwelling house including the use of an existing structure as a dwelling addition and the use of an existing structure as a storage shed at 32 Hewitts Avenue, Thirroul is refused.' 'All exhibits except A, 8...