Australia: 46/12 Arora Construction Pty Ltd & Anor v Gold Coast City Council & Anor [2012] QPEC 52 (Rackemann, DCJ - 14 September 2012)

Planning and Environment case updates – August and September 2012 cases

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Planning and Environment – Applicant appeal – Proposed residential unit complex in the Guragunbah flood plan – Where the development is appropriate in terms of land use, density and building heights – Flooding – Where the development site will be immune to flooding up to the probable maximum flood – Where the subject site will not have trafficable road access beyond a Q20 flood event – Whether reliance on early voluntary evacuation followed by 'shelter in place' is a viable alternative to evacuation – Whether subject site occupants are exposed to an unreasonable level of risk – Qualitative and quantitative assessment of risk – Whether alternate solutions meet relevant performance criteria – Grounds for approval not withstanding conflict.

Facts: This was an appeal by Arora Construction Pty Ltd (Arora) against the Gold Coast City Council's (Council) deemed refusal of an application for a development permit for a material change of use to construct 270 apartments, in 7 buildings (ranging from 3 – 7 stories in height), as well as a small restaurant (the Application). The land subject to the Application was located within the Guragunbah flood plain.

The Application was impact assessable, required assessment against section 3.5.5 of the Integrated Planning Act 1997 (Qld) (IPA) and was required to be decided in accordance with sections 3.5.11 and 3.4.14 of the IPA.

Disputed issues about land use, density and building height had been resolved earlier in the appeal. The remaining issues in the appeal related to flooding, particularly the effect of flooding on the sole access road Nerang-Broadbeach Road, which would become untrafficable by ordinary sedan in flood events above Q20 levels and the residual risk to occupants of the proposed development.

In particular, the Court was asked to determine whether the proposed development was in conflict with the provisions of the planning scheme, specifically:

  1. the higher order provisions of the planning scheme;
  2. the Guragunbah Local Area Plan (LAP), particularly whether the development ensured the level of risk to occupants was acceptable during flood events and that appropriate emergency response could be facilitated;
  3. the LAP place code performance criteria, specifically:
    • PC18 – Whether the development ensured that occupants were not at unreasonable risk from flooding; and
    • PC 20 – Whether the development would allow for occupants to be able to evacuate to a place of refuge;
  1. the Flood Affected Areas Constraint Code (FAACC), particularly whether the risks associated with the development were fully known, quantifiable and capable of being dealt with to Council's satisfaction, without any uncertainties; and
  2. the FAACC performance criteria, specifically:
    • PC5 – Whether the development would cause damage, increase the level of risk to life or be to the detriment of flood evacuation procedures;
    • PC10 – Whether the development demonstrates that sufficient access or egress will be available to enable evacuation during floods.

In relation to the above, both Council and Arora instructed experts to qualify and quantify the residual risk to life which would be associated with the proposed development occurring on the subject site with the flood plain.

Arora submitted that its proposal encompassed various alternative solutions which satisfied the relevant performance criteria (particularly, substantially reducing, if not obviating, reliance on Nerang-Broadbeach Road access in times of flooding) and that there were sufficient grounds to warrant approval notwithstanding any conflict.

Council submitted that the various measures to be implemented would not overcome the site's inappropriate location for a development of such magnitude, and that the location was inappropriate because of the frequency with which the access road would be flooded (in events above Q20).

Decision: The Court held that, in allowing the appeal subject to finalisation of an appropriate management plan and conditions, that:

  1. In relation to risk:
    1. The evidence was sufficient to conclude that the quantum of the risk was not beyond that which may be accepted as satisfactory. To the extent that some imprecision or lack of certainty remains, it was not such as to warrant refusal of a proposal which meritoriously dealt with the risk in a way which was satisfactory.
    2. In all the circumstances, including the slow rising nature of the floodwaters, the period of inundation and the suite of measures proposed, considered collectively, there would be adequate mitigation of risk such that the solutions proposed were satisfactory and met the tests of being sufficient, acceptable and reasonable. In the circumstances the risk associated with locating the development on the site with the management proposed, was acceptable.
  1. In relation to the conflict with the planning scheme provisions:
    1. The proposal did not conflict with the higher order provisions of the planning scheme.
    2. The proposal met the intent of the LAP and the purpose of the FAACC.
    3. The proposal met PC18 of the LAP place code because it had been designed to ensure that residents, occupants or users were not at unreasonable risk from flooding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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