Australia: Proposed residential development in floodplain conflicts with planning scheme and lacks sufficient grounds to justify an approval

IN BRIEF

The case of Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44 concerned an appeal in the Planning and Environment Court commenced by Reibel Farms against the decision of the Whitsunday Regional Council to refuse a development application for a preliminary approval to which section 3.1.6 of the Integrated Planning Act 1997 applies for residential development.

The site the subject of the appeal was located in Bowen and subject to significant constraints in respect of flooding, which arose from a depression and drainage channel which bisected the land. The Court determined that "there is a potential for a flooding event that makes the proposed development untenable" and that no proposed mitigation measures before the Court would overcome this issue.

The Court found that the proposed residential development was in significant conflict with the Bowen Shire Planning Scheme 2006 and that there were not sufficient grounds to justify an approval of the proposed residential development notwithstanding the conflict.

COURT FOUND THAT THERE REMAINED FLOOD, SAFETY AND EVACUATION RISKS ON THE SITE DESPITE THE FLOODWAY UPGRADE AND THE PROPOSED RESIDENTIAL DEVELOPMENT WAS NOT SUITABLE

The site was comprised of three lots located at 33 Argyle Park Road and Jilletts Road, Bowen. The land was in the Rural Zone and Open Space Zone under the Bowen Shire Planning Scheme 2006.

Bells Gully, which bisected the land, was a drainage channel which received flood waters from local sources and from breakouts of Don River further to the west of the site, which was described to be "a particularly dangerous and unpredictable river during floods".

Argyle Park Road, which adjoined the eastern part of the site was the primary point of access to the site and also a preferred evacuation route for the site and other beachside residential areas to the east of the site.

At the time of the original hearing in November 2014 the existing floodway crossing on Argyle Park Road was at such a height that it was susceptible to being cut on a regular basis, having immunity to local flooding at only an average recurrence interval of two years. The Council ultimately upgraded the road culvert crossing in an attempt to increase its flood immunity for local flooding to an ARI 100 year level.

This upgrade was completed before the Court delivered its judgment in the appeal and further evidence was put before the Court on the effect of the upgrade. On the basis of evidence given by the hydrology expert for the Council, the Court was not convinced that the crossing would be trafficable during a 1 in 100 year flood.

The Court found that there remained flood, safety and evacuation risks despite the completion of the floodway upgrade and that "a residential development as proposed on a floodplain such as the land, would potentially increase the burden upon emergency services in a significant flood event, even though there has been an upgrade of the crossing of Bells Gully".

COURT FOUND THAT THE PROPOSED RESIDENTIAL DEVELOPMENT WAS IN SUBSTANTIAL CONFLICT WITH THE BOWEN SHIRE PLANNING SCHEME 2006 AND THE SITE WAS NOT SUITABLE FOR THE PROPOSED RESIDENTIAL DEVELOPMENT GIVEN ITS RURAL ZONING AND EXPOSURE TO FLOOD RISKS

The potential conflicts with the Bowen Shire Planning Scheme 2006 arose from the proposed use of the site for urban residential development when the site was in a rural zone and where there was a significant risk of flooding.

Reibel Farms submitted that the conflict with the Bowen Shire Planning Scheme 2006 was minor. However, the Court found that the "proposed development conflicts with the planning scheme and that the conflicts are not minor but rather are substantial". The Court went on to state as follows:

"The land is subject to a real risk of flooding which has the potential for placing residents at personal risk to their health and safety, increase the burden on emergency services and may adversely affect land outside the boundaries of the subject land. The construction of residential development on a floodplain such as Bells Gully, which by its very nature has a specific purpose of taking water flow in flood times and, indeed undoubtedly, stormwater to the ocean at the outfall at King's Beach, is one that should be discouraged under the planning scheme. The land is rural land and I note that under the draft planning scheme continues to be rural land. A residential development on the land is incompatible with proper planning principles."

COURT CONSIDERED WHETHER GROUNDS EXISTED THAT MAY JUSTIFY APPROVAL DESPITE THE CONFLICT

Reibel Farms raised a number of grounds in seeking to establish sufficient grounds to justify the approval of the proposed residential development despite the conflicts, including that there was a significant need for the proposed residential development.

Having heard evidence from the economic need experts for both parties, the Court did not find that there was a demonstrated economic need for the proposed residential development. It was established that the planning scheme provided adequate land for residential purposes and that considering the economic outlook for the area, it was likely that residential demand could be met within areas identified in the planning scheme for a considerable period of time.

Having considered the grounds raised by Reibel Farms, the Court found that there were not sufficient grounds to justify an approval of the proposed residential development notwithstanding the identified conflicts. On this basis the appeal was dismissed and the Council's decision to refuse the development application was confirmed.

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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Authors
Ian Wright
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