Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2024
  4. Pynhall Pty Ltd v Logan City Council - [2024] QPEC 11

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pynhall Pty Ltd v Logan City Council[2024] QPEC 11

Pynhall Pty Ltd v Logan City Council[2024] QPEC 11

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Pynhall Pty Ltd v Logan City Council [2024] QPEC 11

PARTIES:

PYNHALL PTY LTD

(appellant)

v

LOGAN CITY COUNCIL

(respondent)

FILE NO/S:

1023 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12 and 13 March 2024

JUDGE:

Williamson KC DCJ

ORDER:

The appeal is adjourned for the parties to prepare conditions of approval and an updated Flood emergency management plan.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where application to start a new use of land for Dual occupancy (auxiliary unit) – where development application was code assessable – where non-compliance alleged with the Dual occupancy and Dwelling house code in the respondent’s planning scheme – where non-compliance alleged with Part E of the State Planning Policy – where compliance with the code and State Planning Policy can only be achieved through the imposition of conditions with respect to the mitigation of flooding risk – whether there is sufficient certainty the proposed development conditions will be complied with.

CASES:

Austin BMI Pty Ltd v Ipswich City Council [2023] QPEC 27

Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26

IB Town Planning v Sunshine Coast Regional Council [2022] QPELR 791

Kaydren Pty Ltd v Gold Coast City Council (No.2) 1 APAD 376

LEGISLATION:

Planning Act 2016, ss 45, 60 and 164

Planning Regulation 2017, s 26

Planning and Environment Court Act 2016, ss 43 and 45

COUNSEL:

Mr M Batty with Ms J Bowness for the appellant

Mr B Job KC with Mr J Lyons for the respondent

SOLICITORS:

Anderssen Lawyers for the appellant

Minter Ellison, Gold Coast for the respondent

Introduction

  1. [1]
    This is an appeal against Council’s decision to refuse a code assessable development application seeking approval for a Dual occupancy (auxiliary unit) at Segovia Way, Slacks Creek (the land).
  1. [2]
    The land is constrained. The key constraint relates to flooding impacts from Slacks Creek and the Logan River. The appeal is resisted by Council on the basis that: (1) the proposed development does not comply with assessment benchmarks relevant to the management of flood risk; and (2) compliance with assessment benchmarks going to the management of flood risk cannot be achieved by imposing development conditions (s 60(2)(d) of the Planning Act 2016).
  1. [3]
    The appellant joins issue with Council’s case. It is contended on the appellant’s behalf that compliance with relevant assessment benchmarks can be achieved through the imposition of development conditions. The critical condition relied upon requires the owner, and any tenants, of the development to comply with a Flood Emergency Management Plan (the FEMP).  This document was examined by two Flooding experts, namely Dr Johnson (retained by the appellant) and Mr Giles (retained by Council).  They agreed ‘…the latest FEMP is acceptable provided of course that the residents of the property implement it and follow its instructions’ (Ex. 5, p. 5).
  1. [4]
    The point of agreement between Dr Johnson and Mr Giles discloses the real issue for determination in this appeal. The issue is whether the appellant has demonstrated there is sufficient certainty the FEMP will, on the balance of probabilities, be implemented and followed. For the reasons that follow, I am satisfied the appellant has demonstrated this issue should be resolved in its favour.
  1. [5]
    The appeal is a hearing anew: s 43, Planning & Environment Court Act 2016.
  1. [6]
    The appellant bears the onus of establishing that the appeal should be upheld: s 45(1)(a), Planning & Environment Court Act 2016.

The land and surrounding locality

  1. [7]
    The land:
  1. sits at the intersection of the Pacific Highway (Service road) and Segovia Way;
  2. is regular in shape;
  3. has an area of 2,539m²;
  4. falls from Segovia Way to its rear, with a level change of about 3 metres; and
  5. is vacant.
  1. [8]
    The northern boundary of the land has frontage to the Pacific Highway (Service road). The Service road is an Urban collector road sitting at about RL 9.1 m AHD where it intersects with Segovia Way. The eastern boundary of the land has frontage to Segovia Way, which has a crest level of RL 9.25 m AHD at about the location of the land. Segovia Way is an Urban access street, connecting a mature low density residential area to the Pacific Highway (Service road). Development in this enclave comprises housing dating back to the mid-20th century. There is no evidence about when, and under what planning arrangements, this development was approved or commenced.
  1. [9]
    As I have already observed, the land is flood affected. The threat of flooding comes from two sources, namely local flooding from Slacks Creek and river flooding from the Logan River. The peak flood levels on the land are caused by river flooding. As to the extent of inundation during various flooding events, the evidence reveals the ground levels within the land, which range from RL 6 m AHD to 9.2 m AHD (Ex. 3 p. 120), can be compared to the following events recorded in a Flooding report promulgated by Council (for the land):

Likelihood (each year)

River flooding

10% chance (1 in 10 year)

7.1 metres AHD

5% chance (1 in 20 years)

8.4 metres AHD

2% chance (1 in 50 years)

9.8 metres AHD

1% chance (1 in 100 years)

10.9 metres AHD

0.5% chance (1 in 200 years)

11.5 metres AHD

0.2% chance (1 in 500 years)

12.4 metres AHD

0.05% chance (1 in 2000 years)

13.0 metres AHD

Probable Maximum Flood (PMF)

17.4 metres AHD

  1. [10]
    It can be observed that the land is partially inundated in frequent river flood events. It is inundated up to a level of 7.1 m AHD in a 1 in 10 year flood event (1.1 metres high at its deepest point) and up to 9.8 m AHD during a flood event approaching 1 in 50 years (3.8 metres high at its deepest point). Segovia Way at about the location of the land is inundated in a flood event between the 5% and 2% AEP.

The proposed development

  1. [11]
    The form of development proposed is depicted in a set of architectural plans (Ex. 6). The plans relied upon were the subject of a minor change application on the first day of the hearing, which was allowed. A review of the plans reveals the development is high-set with two dwellings (1 x three bedroom and 1 x two bedroom). The dwellings are attached at two points, namely the ground level and roof level. The level below ground, described as the lower level, comprises separate carparking areas. They are enclosed with concrete ventilation blocks that allow water to flow through the area.
  1. [12]
    For completeness, it can be observed that the proposed site plan includes two sets of contour lines. Mr Batty confirmed in oral submissions that the darker of the two contours is to be ignored and, in their stead, it should be assumed that a condition is sought requiring the access to the lower level to be no less than RL 8.7 m AHD. That this is proposed can be seen in the architectural elevations. The same elevations also identify that the ground floor level is at RL 11.4 m AHD. The underside of the roof is at RL 14.1 m AHD.
  1. [13]
    Comparing the levels in paragraph [12] with those set out in the table in paragraph [9] reveals: (1) access to and from the land will be cut somewhere between the 5% and 2% AEP; (2) the lower level will be inundated somewhere between the 5% and 2% AEP; and (3) the only habitable part of the development, which is the ground level, sits 500 mm above the 1% AEP.
  1. [14]
    The proposed architectural plans are complemented by draft conditions proposed by the appellant. The conditions are set out in correspondence dated 22 September 2023. The correspondence contends the conditions will minimise and manage risk to an acceptable level and achieve compliance with relevant assessment benchmarks. The conditions are as follows:

“Flood Evacuation Management Plan (FEMP)

1. Comply with the Flood Emergency Management Plan dated September 2023 prepared by SLR (“FEMP”) at all times.

2.  A legible copy of the approved FEMP and approval conditions must be available on site at all times.

3.  The owner must provide a copy of the approved FEMP to each new purchaser or tenant prior to any tenancy agreement or change of ownership to ensure any tenant or purchaser is informed about;

(a) The requirement for the FEMP to be complied with at all times;

(b) The flood hazard on the site; and

(c) Procedures during major flood events.

Flood hazard signage

4.  Install warning signs within the proposed development. Provide details of the design and locations(s) of the proposed flood signs to Council, prior to the commencement of use.

Flood hazard general

5.  Those parts of any buildings, which will be below the peak level of the defined flood event (1% AEP), are to be constructed of flood-resilient materials to minimise any property damage.

No worsening of hydraulic conditions

6.  The development must be designed and constructed so as to result in:

(a)  no increase in peak flow rates at the lawful point of discharge;

(b)  no increase in flood levels external to the site; and

(c)  no increase in duration of inundation external to the site.”

  1. [15]
    The FEMP is attached to a joint expert report prepared by Dr Johnson and Mr Giles. A review of the document reveals a two-pronged strategy is proposed to manage flood risk.
  1. [16]
    First, in the case of local flooding in Slacks Creek, the FEMP has in mind that residents will ‘shelter in place’.  It was agreed by Dr Johnson and Mr Giles that this approach to the management of local flood risk is acceptable having regard to the minimum habitable floor level of the proposed development.  It sits at RL 11.4 m AHD, which is about 1.3 m above peak local flood level for the Probable Maximum Flood (PMF).  I accept the evidence of Dr Johnson and Mr Giles in this regard.
  1. [17]
    Second, in the event of flooding caused by the Logan River, the FEMP has in mind that residents will evacuate the land if either one of the following applies (the trigger for evacuation):
  1. a Major Flood forecast for the Logan/Albert Rivers is provided by the Bureau of Meteorology or Logan City Council; or
  1. the Waterford stream gauge reaches 8.5 m AHD.
  1. [18]
    There is a direct relationship between the peak flood level at the Waterford stream gauge and the flood level on the land. The relationship is demonstrated in Figure 2 of the FEMP. This figure suggests that when the Waterford stream gauge has reached 8.5 m AHD, the peak flood level on Segovia Way is in the order of 6.7 m AHD. Segovia Way ceases to be a safe evacuation route for vehicles, and people on foot, when the level of inundation has reached in the order of RL 9.1 to 9.4 m AHD. Figure 2 provides that this level of inundation would not occur until the Waterford stream gauge has reached about RL 11.5 m AHD.
  1. [19]
    As I understood the evidence, a river flooding event will be slow rising and low in velocity. Flood waters would take a minimum of 18 hours to rise from the trigger for evacuation to a level where it is unsafe for residents to continue to occupy the proposed development. It was agreed this provides sufficient time to allow residents to: (1) leave the land safely before flooding occurs in Segovia Way; and (2) reach a nearby location elevated above the PMF (i.e. flood free). I accept this point of agreement, particularly in circumstances where the 18 hour minimum period is likely to be preceded with earlier warnings from, among other things, Council. In this regard, the possibility of major flooding in the Logan River is typically known several days in advance.
  1. [20]
    The FEMP recognises three evacuation routes for vehicles, two of which are preferred.
  1. [21]
    Section 1.2 of the FEMP identifies who is responsible for particular tasks. Table 1-2 identifies that:
  1. the ‘Owner’ is required to:

“Provide a copy of this FEMP to existing or potential residents prior to any tenancy agreement or change of ownership of the property, and clearly communicate to them the contents of this FEMP and their responsibilities during a flood event. Provide updated copies of the FEMP to the residents in a timely manner.”

  1. the ‘Tenants/Occupants’ are:

“…responsible for monitoring of the flood situation, and implementing appropriate emergency action as described in the FEMP. Flammable lighting options are not permitted during periods of isolation.”

  1. [22]
    Table 1-3 of the FEMP deals with ‘support’ available to residents. It includes the following:

Logan City Council Support Line

Support line is available 24 hours a day, 7 days a week, 365 days a year during a flood event.

Severe weather alerts will be issued for the site to provide advance notice of a possible flood event.

  1. [23]
    Section 3.1 of the FEMP identifies the flood data relied upon to prepare the plan. Relevantly, the section states:

“This FEMP was developed based on the information available in the flood study reports and models provided by…[Council]. Any updates to the relevant models may impact the understanding of flood risks in both the Logan River and Slacks and Scrubby Creek catchments. Therefore, this FEMP should be reviewed and, if necessary, updated at such time that the Logan and Albert Rivers and Slacks and Scrubby Creeks flood study reports and/or models are formally implemented by…[Council], and following any future updates.”

  1. [24]
    Council was critical of this aspect of the FEMP, which requires a review of the document in the future, and a potential update. The criticism was directed at the lack of specificity around when, and how, this would occur. Council was also critical as to who would be responsible for the review and updating process. In response, the appellant indicated it would accept a development condition in the form set out in exhibit 13. After oral submissions, it was clear that a slightly different condition would be accepted requiring the owner to: (1) cause the FEMP to be reviewed at least every two years by a Registered Professional Engineer of Queensland (RPEQ); and (2) provide Council with the outcome of any review (irrespective of the findings), which may require changes to the FEMP to reflect new flood related information obtained by Council.

The statutory assessment regime

  1. [25]
    The development application is code assessable. It is to be assessed and decided in accordance with ss 45 and 60(2) of the Planning Act 2016.
  1. [26]
    Section 45(3) requires the assessment to be carried out only against: (1) the assessment benchmarks in a categorising instrument for the development; and (2) any matter prescribed by regulation.  It is common ground there is only one code in Council’s planning scheme against which the application must be assessed, namely the Dual occupancy and Dwelling house code (the Code).  It is also common ground that Council’s planning scheme does not reflect the terms of the State Planning Policy (July 2017) (the SPP).  In such circumstances, s 26(2) of the Planning Regulation 2016 requires the code assessment to be carried out against the assessment benchmarks stated in the SPP.  Here, that is Part E of the SPP dealing with ‘State interest – natural hazards, risk and resilience’.
  1. [27]
    The decision making rules are prescribed in s 60(2) of the Planning Act 2016, which is in the following terms (‘Examples’ omitted):

“(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

  1. must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and
  1. may impose development conditions on an approval; and
  1. may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.”
  1. [28]
    Section 60(2)(d) is of particular focus in this appeal. This is because the development, absent the imposition of conditions, cannot comply with assessment benchmarks with respect to flood risk. While the provision has in mind that a refusal ‘may’ follow if compliance cannot be achieved by imposing conditions, the nature of the non-compliance with the planning scheme here will be fatal if it cannot be cured by condition. Non-compliance means there is an unacceptable safety risk to people and property that cannot be appropriately mitigated. Mr Batty did not suggest there are grounds to approve the development in the face of an unacceptable safety risk to people and property.

The assessment benchmarks

  1. [29]
    Version 8.1 of Council’s planning scheme was in force when the development application was treated as properly made. For the purposes of the planning scheme, the land is included in the Low density residential zone – small acreage precinct. It is also subject to the Flood hazard overlay.
  1. [30]
    The planning scheme includes a code for each of these zone and overlay designations. Neither code is an assessment benchmark for the application before the Court.
  1. [31]
    The development application seeks approval to start a new use of the land, namely Dual occupancy (Auxiliary unit). A dual occupancy is a defined use in the planning scheme. The definition is as follows:

“Dual occupancy—

  1. a.
    means a residential use of premises for 2 households involving;
  1. i.
    2 dwellings (whether attached or detached) on a single lot or 2 dwellings (whether attached or detached) on separate lots that share common property; and
  1. ii.
    any domestic outbuilding associated with the dwellings; but
  1. b.
    does not include a residential use of premises that involves a secondary dwelling.”
  1. [32]
    An ‘Auxiliary unit’ is defined in the planning scheme.  It is an administrative definition in the following terms (in part):

“A Dual occupancy where both dwellings are owned by the same person on one land title and the Auxiliary unit:

  1. a.
    is located on a lot with a minimum size of 450m²;
  2. b.
    has a maximum of two bedrooms;
  3. c.
    has no more than one kitchen;
  4. d.
    has no more than one living space;
  5. e.
    has a maximum gross floor area of:
    1. i.
      70m² if in the residential zone category and on a lot less than 1,000m²; or ….”
  1. [33]
    The definition of Auxiliary unit is followed by an Editor’s note. The note is in the following terms:

“…A Dual occupancy that is an auxiliary unit differs from a secondary dwelling in that the two dwellings in a dual occupancy that is an auxiliary unit may be occupied by different households.  A secondary dwelling must be occupied by persons who form one household with the main dwelling.”

  1. [34]
    Table 5.5.5.1 of the planning scheme sets out the categories of development and assessment for a material change of use in the Low density residential zone. A review of the table indicates a Dual occupancy (Auxiliary unit) is accepted development in the zone where it complies with the ‘requirements’ for accepted development.  The requirements for the proposed use are contained in the Code.  The proposed development is, by operation of s 5.3.3 of the planning scheme, code assessable because it does not comply with at least two requirements for accepted development stated in the Code, namely Acceptable outcomes AO33 b. and AO34.2.
  1. [35]
    The level of assessment for the proposed development was not altered by the Flood hazard overlay.
  1. [36]
    A prescribed assessment benchmark for the development application is the Code. This was common ground. Section 5.3.3(4) of the planning scheme provides that compliance with the Code is achieved in one of two ways. First, compliance can be demonstrated with the purpose and overall outcomes of the Code. Second, and alternatively, compliance can be demonstrated with performance or acceptable outcomes stated in the Code.
  1. [37]
    Council raised a limited number of non-compliances with the planning scheme. The provisions of interest are as follows.
  1. [38]
    The purpose of the Code is set out in s 9.3.1.2(1) of the planning scheme. It is in the following terms:

“The purpose of the code is to ensure that a Dual occupancy or Dwelling house is compatible with the surrounding area and to ensure a Dwelling house protects the environment, and the safety of people and property.”

  1. [39]
    Mr Job KC pointed out that the purpose of the Code appears to contain an error. It was submitted that, on its face, the purpose is to protect the safety of people and property associated with Dwelling houses but is silent about a Dual occupancy. The silence is, in my view, of little moment given overall outcome 2 i. of the Code. Non-compliance is alleged with this overall outcome.
  1. [40]
    The overall outcomes, which are said to achieve the purpose of the Code and are the subject of an allegation of non-compliance are as follows:

“2.  The purpose of the code will be achieved through the following overall outcomes:

  1. a.
    A Dual occupancy or Dwelling house:

…

ii.  provides safe vehicle access to the premises;

…

  1. A Dual occupancy (auxiliary unit) or Dwelling house located in an area identified on Flood hazard overlay map OM-05.00 does not result in people and premises being at an unacceptable risk during a defined flood event;”
  1. [41]
    Overall outcome 2i. is followed by this ‘Editor’s note’:

“…Where a lot is affected by a Flooding and inundation area, a flood search report should be obtained from the local government to confirm the extent that is within the Flooding and inundation area.  The flood search report will be determinative.” (emphasis added)

  1. [42]
    The material before the Court includes a flood search report of the kind referred to in the Editor’s note. The most recent report states that the ‘defined flood event’ for the land is a level of RL 10.9 m AHD.  Dr Johnson and Mr Giles carried out their respective assessments on the footing that this level represented the defined flood event.
  1. [43]
    The phrase ‘defined flood event’ has an administrative definition in the planning scheme.  It is defined as ‘the one percent annual exceedance probability (AEP) flood event’.
  1. [44]
    Table 9.3.1.3.1 of the Code contains assessment benchmarks for assessable development, as well as requirements for accepted development. Council put in issue two Performance outcomes, namely Performance Outcome PO33 and PO34. They are in the following terms:

PO33

A Dual occupancy (auxiliary unit) or Dwelling house does not increase the level of risk of damage to property in the Flooding and inundation area identified on Flood hazard overlay map OM-05.00.

AO33

A Dual occupancy (auxiliary unit) or Dwelling house located in the Flooding and inundation area identified on Flood Hazard overlay map OM-05.00:

a.  has a finished habitable floor level that is a minimum of 500mm above the flood level of the defined flood event;

b.  has a finished non-habitable floor level that is equal to or greater than the defined flood event.

Note – AO33 also applies to extensions to existing development

PO34

A Dual occupancy (auxiliary unit) or Dwelling house does not;

a.  increase the risk of injury to life;

b. add to the emergency management or evacuation burden during or after a flood event.

AO34.1

A Dual occupancy (auxiliary unit) or Dwelling house where located on a site that is affected by the Flooding and inundation area identified on Flood hazard overlay map OM-05.00 ensures that the building is constructed in accordance with Queensland Development Code, MP 3.5 – Construction of buildings in flood hazard areas

AO34.2

A Dual occupancy (auxiliary unit) or Dwelling house located on a site that is affected by the Flooding and inundation area identified of Flood hazard overlay map OM-05.00 provide flood-free vehicular access to a road that is above the flood level in the defined flood event (sic).

  1. [45]
    It was uncontroversial the development does not meet AO33 b. and AO34.2.
  1. [46]
    The proposed development is to be assessed against assessment benchmarks in Part E of the SPP. Council relies upon two particular provisions, dealing with natural hazards, risk and resilience. The relevant provisions state:

“(3) Development other than that assessed against (1) above, avoids natural hazard areas, or where it is not possible to avoid the natural hazard area, development mitigates the risks to people and property to an acceptable or tolerable level. (emphasis added)

And:

  1. Development supports and does not hinder disaster management response or recovery capacity and capabilities.”

The disputed issues

  1. [47]
    The issues in dispute are defined by the order of 13 March 2024. The order confines the issues to those traversed in the written submissions, marked exhibits 11 and 12. Having regard to the written submissions, the critical issue for determination in the appeal is as follows: whether the appellant has demonstrated, with sufficient certainty, that the FEMP will be implemented and followed? The case was run by both parties on the footing that compliance, or otherwise, with the assessment benchmarks directly flows from the resolution of this question. I agree with this approach. It was sensible having regard to the planning provisions put in issue.
  1. [48]
    Before dealing with the key issue in the appeal, it is necessary to say something with respect to risk management and the approach to be adopted where development poses a risk to the safety of people and property.

Risk management

  1. [49]
    The proposed development is susceptible to unacceptable flooding risk. The risk is to people and property during a number of flood events, including frequent events. An examination of the risk to people and property is required by overall outcome 2i of the Code. It is also required by the assessment benchmarks cited above from the SPP.
  1. [50]
    There was no dispute between the parties as to the approach to be adopted, in principle, to the assessment of risk. Indeed, I was referred to the discussion of relevant authorities about this very topic in Austin BMI Pty Ltd v Ipswich City Council [2023] QPEC 27, Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 and IB Town Planning v Sunshine Coast Regional Council [2022] QPELR 791. 
  1. [51]
    Having regard to the above decisions, and those set out at paragraph 41 of Council’s written submissions, a number of propositions of general application can be distilled with respect to an examination of risk. The propositions are as follows:
  1. caution, and a careful approach, is appropriate where matters of public safety are involved;
  1. the presence of risk does not, in and of itself, call for a nervous approach or intolerance;
  1. the attractions of avoiding responsibility for allowing a proposal which has an element of serious risk, while only too obvious, must be resisted because to adopt such an approach would be superficial and an abrogation of the judicial function;
  1. the standard to which the Court must be satisfied that a development will not be a source of unacceptable risk is the civil standard, namely a degree of persuasion of the mind according to the balance of probabilities; and
  1. the assessment of risk and its acceptability calls for an examination of:
  1. the nature and extent of the risk; and
  1. the means by which the risk is proposed to be addressed.
  1. [52]
    The appeal was conducted on the footing that the risk to people and property during a local flood could be managed acceptably. The risk in sharp focus is that associated with slow moving, low velocity, river flooding for people, and property, on the land. The risk to people becomes unacceptable when the level of inundation from river flooding on Segovia Way reaches about RL 9.1 m AHD. Once flood waters have reached this point, occupants will be isolated on the land and will need to shelter in place. This is in circumstances where: (1) the flood waters may reach a level that can be estimated to not exceed the habitable floor level (RL 11.4 m AHD), but never guaranteed; (2) once flood water exceeds RL11.4 m AHD occupants will need to be evacuated by emergency services; and (3) occupants will be isolated on the land and unable to safely evacuate the development until flood waters recede. The evidence establishes that, for the 1% AEP plus climate change, the period of isolation could be in the order of 55 to 68 hours. The period of isolation itself gives rise to a risk – occupants of the development, after being isolated for an extended period (presumably without power and clean reticulated water), may choose to evacuate the land to access necessaries of life when it is unsafe to do so, placing a further burden on emergency services. The risk to property here involves potential damage to the structure and chattels at the lower level in a flood that exceeds a 1 in 20 year event.
  1. [53]
    The means by which the risk is to be addressed here is by a combination of measures, namely: (1) the lower level of the development has been designed to allow flood water to pass through the area; (2) the lower level will be constructed with flood resilient materials; (3) electrical infrastructure will be placed at a level that is equivalent to the 0.5% AEP ; and (4) the adoption of the FEMP, which includes an evacuation strategy. The evacuation strategy is conservative. It allows a minimum of 18 hours for occupants to evacuate themselves and their vehicles. At the time of the trigger for evacuation, the level of inundation on the land will be at about RL 6.7 m AHD. The water will be at the rear of the land to a depth of about 0.7 metres. The slow moving and low velocity flood water would take a minimum of 18 hours from this point to reach RL 8.7 m AHD. It would be unsafe for occupants to leave by vehicle when water has reached this level. It would however be safe for occupants to leave on foot before flood waters reach RL 9.1 m AHD on Segovia Way.
  1. [54]
    The evidence establishes there are two particular parts of the response to flooding risk are important, namely: (1) the elements of the trigger for evacuation; and (2) the time available for safe evacuation after the trigger is engaged. This is clear from the following passage of Mr Giles’ cross-examination (T2-29, L5-10):

“What are the aspects of the flood emergency management plan that caused you to agree that it was acceptable?---I regard it to be acceptable …because it uses both a forecast trigger and an actual level trigger, and I accept that the time available between the trigger, be it either the forecast or based on actual levels, would be sufficient to evacuate the property.”

  1. [55]
    As to whether the FEMP represents an appropriate response to flooding risk, Mr Giles made the following concessions (T2-28, L24-47):

“…it’s agreed that the flood emergency management plan of itself is an acceptable document?---That’s correct.

If the flood emergency management plan is followed, the proposed development will not place an unacceptable burden on emergency or disaster response organisations; correct?---If it is followed, that’s correct.

If the flood emergency management plan is followed, people and premises would not be placed at unacceptable risk from flooding; correct?---If the FEMP is followed, that’s correct.

…

If the FEMP is followed, acceptable vehicle access would be provided to and from the premises during the flood event?---I wouldn’t agree with during the flood event. I would agree during the evacuation period. Thank you. …

If the flood emergency management plan is followed, the proposed development would be evacuated prior to becoming isolated in a flood event?---That’s correct, yes” (emphasis added)

  1. [56]
    Mr Giles’ evidence, in combination with that of Dr Johnson, satisfies me the means by which flooding risk will be managed here is acceptable and an approval should follow. This is subject to a qualification – provided there is sufficient confidence the FEMP will be implemented and followed. Whether the qualification is cause for concern here is the key issue in dispute.

Is there sufficient certainty that the FEMP will be implemented and followed?

  1. [57]
    The resolution of this issue starts from the premise that conditions would be imposed on any approval, consistent with paragraphs [14] and [24]. The purpose of the conditions is to ensure the FEMP is implemented. In circumstances where conditions are proposed for an approval, the assessment proceeds in this way (IB Town planning v Sunshine Coast Regional Council [2022] QPELR 791 at [222] with footnotes omitted):

“…An application is ordinarily assessed by the Court on the footing an applicant will comply with conditions imposed on any approval. That is not to say a contrary view may never by adopted; evidence may establish there is good reason to do so.”

  1. [58]
    To determine whether there is good reason in this case to assume compliance may not be achieved with proposed conditions, the parties invited the Court to resolve the issue on the basis of the opinions expressed by the flood engineers. At first blush, this seems obvious. However, an examination of the engineering evidence reveals it is directed towards a topic that is not strictly for engineers. The evidence goes to how the average person may be expected to respond to the proposed conditions of approval. In circumstances where neither the evidence of Dr Johnson nor Mr Giles is based upon direct experience with an analogous case (involving a dual occupancy rather than a community title scheme), I was not persuaded they were in any better position to assess the likelihood of compliance than the Court. The Court is well placed to examine the issue having regard to all the evidence.
  1. [59]
    I am satisfied having regard to all of the evidence that there is sufficient certainty the FEMP will be implemented and complied with. This is so having regard to five particular factors taken in combination: (1) the conditions proposed for approval and the starting point set out in paragraph [57]; (2) that the conditions traversed in paragraphs [14] and [24] are, in my view, clearly expressed; (3) that the trigger for evacuation is clearly expressed and easily understood; (4) that there is ample time to evacuate the land even assuming the trigger for evacuation is not complied with immediately (a minimum of 18 hours); and (5) that the likelihood of a major flood event in the Logan River will be known (and the subject of public notification) several days in advance and be the subject of warnings by, inter alia, Council (paragraph [19] and Table 1-3 of the FEMP).
  1. [60]
    If it is assumed the key issue in the appeal is resolved on the basis of the engineering evidence, it can be observed that Dr Johnson did not identify a reason that supports departing from the position stated in paragraph [57]. The same cannot be said for Mr Giles. He identified a number of reasons as to why it should not be assumed the FEMP will be implemented and complied with. After reviewing this evidence closely, I am satisfied the evidence does not cause me to arrive at a different view to that expressed in paragraph [59]. This is so for the following reasons.
  1. [61]
    It was uncontroversial between Dr Johnson and Mr Giles that the FEMP, and conditions requiring compliance with it, are not failsafe, nor immune from poor decision making. I accept this evidence. Implementation of the document, and compliance with it, will be susceptible to human error. This does not however determine the key issue in the appeal. The onus in the appeal does not require the appellant to demonstrate the proposal can proceed absent any likely future difficulty with the implementation of, and compliance with, the FEMP. Some difficulty can be expected. Here, it can be managed to avoid adverse results. In this regard, I am satisfied there is ample time to evacuate the land in the event the trigger for evacuation is not complied with immediately, particularly in circumstances where the likelihood of such a flood event occurring will be known days in advance and be the subject of earlier warnings promulgated by, inter alia, Council (paragraph [19] and Table 1-3 of the FEMP).
  1. [62]
    Council’s case is that unacceptable results are unlikely to be avoided given there is insufficient certainty the FEMP will be implemented at all. This point is taken from a point of agreement between the flooding experts. A review of the joint report reveals it was agreed ‘there is no formal way to ensure the residents will follow’ the processes set out in the FEMP (Ex.5, paragraph 22).  Dr Johnson set out a number of reasons as to why this point of agreement did not cause him concern.  One point of note is that he regards the adoption of a FEMP as a standard method used by hydraulic engineers and generally accepted by Council (provided there is sufficient warning time to allow evacuation).  Mr Giles did not disagree with this point. He did however identify why there is a lack of certainty the FEMP would be implemented at paragraphs 29 and 30 of the joint report:

“29….MG considers that the ownership of the development is such that there is insufficient certainty that the FEMP will be appropriately implemented prior to or during a flood event. For example, if the dwellings were rented, MG considers that there is no effective mechanism by which the procedures nominated in the FEMP can be executed.

30.  Given the inability to ensure that the FEMP will be implemented, and the lack of refuge above the level of the PMF in the Logan River that people could retreat to, MG considers that the flood risk associated with the proposed development is unacceptable.”

  1. [63]
    The issue of ownership to which Mr Giles referred in paragraph 29 was developed during his oral evidence. A review of this evidence reveals the point made was really about the absence of a competent person on site to administer the FEMP, for example in the form of an onsite manager. Mr Giles’ experience with community title schemes was that an onsite manager would normally take sole responsibility for informing residents about the steps required to comply with a FEMP. This means that, unlike here, the burden of implementation is not placed upon the residents.
  1. [64]
    With paragraph 29 of the joint report in mind, I have difficulty accepting Mr Giles evidence that ‘there is no effective mechanism by which the procedures nominated in the FEMP can be executed’.  A review of the FEMP, in conjunction with the proposed conditions set out at paragraphs [14] and [24], reveal the owner of the land must draw the FEMP and its requirements to the attention of any tenant.  This would necessarily include a requirement to draw to the tenants’ attention the need to comply with the trigger for evacuation.  The trigger would be reinforced through the presence of signage in the development, which should make it clear that a failure to evacuate as required is an offence under s 164 of the Planning Act 2016 and punishable by fine (Maximum penalty 4,500 penalty units).  A tenant who deliberately elects to not comply with the trigger for evacuation when engaged in the face of: (1) the FEMP to which their attention has been drawn; (2) signage stating when evacuation is required and the consequences of not doing so; (3) advanced notice from, inter alia Council, about the likelihood of a major flood event; and (4) the presence of about 700 mm of flood water over the rear of the property; makes a poor decision.  Fortunately, there is more than enough time for that decision to be reversed; the trigger for evacuation provides a minimum of 18 hours for the occupants to safely evacuate the land.  If a tenant elects to remain on the land despite these matters, the slow march of flood water towards the built form will remain a constant reminder of the risk they face.  The flood water, by the time it reaches the lower level of the development, would be some 2.5 metres at its deepest.  If an occupant refuses to evacuate the land despite major flood warnings, the presence of floodwater at a depth of 2.5 metres, the content of the FEMP and development signage, that election is not only poor, it is irrational.  Town planning practice does not require the risk associated with irrational behaviour be eliminated before an approval will be granted.
  1. [65]
    With respect to Mr Giles’ point that the absence of an onsite manager for the development fuels uncertainty, I accept it has merit as a general proposition. Whether it is of particular weight in any given case turns on matters of fact and degree. Here, an onsite manager will not, in my view, be required to ensure the FEMP is properly implemented. Unlike a community title scheme comprising many households, there are only two households that need respond to the trigger for evacuation. The limited number of households, taken in combination with the clarity with which the trigger for evacuation is expressed, is sufficient, in my view. The position is only strengthened once it is appreciated that the risk of major flooding in the Logan River is typically known several days in advance and will likely be the subject of advanced warnings from, inter alia, Council.
  1. [66]
    In his oral evidence, Mr Giles suggested that tenants, or an occupier, would be ignorant to the flood risk at the property given: (1) they are likely to be lay people; and (2) interpretation of the FEMP and acting on its requirements go beyond what a layperson would normally be expected to achieve (T2-30, L25-26). Putting to one side that this point was not raised in the joint report, the terms of the FEMP do not support it. The document is clear. It identifies, in a big red box, when an occupier, be they owner or tenant, is required to evacuate the land. The requirement to evacuate under the FEMP will, as Mr Giles conceded, be reinforced by signage in the development. The signage, as I have already said, must identify the trigger for evacuation and the consequences of not complying with it. In addition, it strikes me that occupiers of the development would be assisted with a QR code on the sign that directs them to Council’s ‘disaster dashboard’ (or equivalent). From this dashboard, the evidence suggests the level at the Waterford gauge, and flood warnings, can be viewed.
  1. [67]
    Given the matters traversed in paragraphs [61] to [66] I do not accept Mr Giles’ evidence to the extent he opined there is insufficient certainty the FEMP will be properly implemented and acted upon. I have reached this view cognisant that the implementation of the FEMP, and observance to its requirements, is susceptible to human error and poor decision making. This is not fatal. Conditions and documents, such as the FEMP, which are a form of adaptive management, are susceptible to this risk. The onus does not require the appellant to prove otherwise: IB Town planning (Supra), [220].  The critical question is whether there is capacity to deal with a difficulty that might arise with the implementation of the document in a manner that precludes unacceptable results: IB Town planning (Supra), [220].  In my view, this is such a case.  The time provided by the FEMP to evacuate, being a minimum of 18 hours after the trigger for evacuation is engaged, provides a considerable factor of safety to correct a failure to comply with the FEMP.
  1. [68]
    Council’s written submissions pressed four considerations as to why there is uncertainty the FEMP will be implemented, some of which go beyond Mr Giles’ evidence (Ex.11, paragraph 47). The considerations are:
  1. whether future residents (be they owners or tenants) will be aware of the existence of, or content of, the FEMP;
  1. whether future residents understand the requirements of the FEMP, which is complex and gives rise to doubt as to whether a flood event is a local or regional one requiring early evacuation;
  1. whether future residents will be confused as to when they are supposed to evacuate by vehicle or on foot; and
  1. there is no credible explanation as to how reviews and possible updates of the FEMP are ensured.
  1. [69]
    The above points were a springboard for Mr Job KC and Mr Lyons to submit that a ‘lack of certainty sounds in unacceptable consequences’ (Ex.11, paragraph 48).  The consequence was identified in these terms: “If early evacuation has not occurred in a major event the existence of a development offence is most unlikely to overcome or offset the consequences of the non-compliance”.
  1. [70]
    The points set out in paragraphs [68] and [69] are, in my view, overstated.
  1. [71]
    Subparagraph (a) assumes non-compliance with proposed condition 3 (set out in paragraph [14]). This cannot be accepted given the evidence does not establish a proper basis to assume non-compliance with a plainly worded condition attaching to the land and bind successors in title. Subparagraphs (b) and (c) are not made good having regard to the FEMP. It is not a complex document that is beyond the ordinary layperson. The trigger for evacuation is clear. The submission fails to give sufficient credit to lay people. The submission recorded in subparagraph (d) was made prior to the appellant advancing the condition mentioned in paragraph [24]. The proposed condition removes the uncertainty to which reference is made.
  1. [72]
    The final point to be addressed is the ‘unacceptable consequence’ to which Council refers. It is true to say that a failure to evacuate the land in a flood event that exceeds RL 9.1 m AHD gives rise to unacceptable risk, and likely burdens emergency services. This consequence does not however arise upon the trigger for evacuation being engaged. As I have already said, the flood waters will be slow moving, providing a minimum of 18 hours for occupiers to evacuate after the trigger is engaged. This has the consequence that non-compliance does not automatically sound in the unacceptable consequence to which Mr Job KC and Mr Lyons referred. There is, in my view, more than sufficient time to correct course in the event an evacuation is required after the evacuation trigger is engaged. That there is significant time available to correct the non-compliance satisfies me that the FEMP has adopted an appropriately cautious approach to flood risk.
  1. [73]
    I am satisfied the issue raised by Council about implementation of, and compliance with, the FEMP should not stand in the way of an approval.

The assessment benchmarks

  1. [74]
    For the reasons given above, I am satisfied the appellant has demonstrated that the development can be conditioned to achieve compliance with the assessment benchmarks raised by Council in the SPP as well as overall outcome 2i of the Code.
  1. [75]
    As to overall outcome 2aii of the Code, this provision requires a Dual occupancy to provide safe vehicle access to the premises. I accept compliance has been demonstrated for the reasons submitted at paragraph 50(b) of the appellant’s written submissions (Ex. 12). In short, the submission correctly identified that: (1) the overall outcome seeks safe vehicle access to the land generally, with the impacts of flooding on that access but one issue to consider: (2) Council‘s case in relation to safe access did not go beyond flooding considerations; and (3) the evidence demonstrates safe access will be provided to enable evacuation of the land before it is flood restricted – this is achieved through the combination of implementing the FEMP and by constructing the access to a minimum level of RL 8.7m AHD.
  1. [76]
    Given paragraphs [74] and [75], read in conjunction with s 5.3.3(4)(c)(i) of the planning scheme, I am satisfied compliance has been demonstrated with the Code.
  1. [77]
    The findings in paragraphs [74] to [76] are reinforced, in my view, by the evidence which I am satisfied comfortably demonstrates:
  1. the development, through the implementation of the FEMP and compliance with conditions, will not unacceptably increase the level of risk of damage to property for the purpose of PO33 of the Code; and
  1. the development, through the implementation of the FEMP and compliance with conditions, will not unacceptably increase the risk of injury to life nor add to the emergency management or evacuation burden during or after a flood event for the purpose of PO34 of the Code.
  1. [78]
    Mr Job KC firmly pressed the risk of damage to property on the lower level of the development as giving rise to non-compliance with PO33. The point made was that the lower level, which can be used for storage of vehicles and chattels, will be inundated in flood events that exceed RL 8.7 m AHD. This, it was said, would lead to the damage of property from flooding, thereby increasing the risk of damage to property.
  1. [79]
    While it is correct to say the lower level of the development may be used to store chattels as well as vehicles, it must be borne steadily in mind that it will not be inundated until floodwaters exceed RL 8.7m AHD in height. This is the height of the slab at this level in the building. By the time flood water has reached this level, occupiers have had a minimum of 18 hours to evacuate. The evidence of Dr Johnson and Mr Giles is that this period of time is more than sufficient for occupiers to safely evacuate. I accept this evidence. Indeed, this period of time would allow for vehicles and chattels to be safely removed from the lower level, if required. I am satisfied that the risk of damage to property of this kind, in these circumstances, is not unacceptable let alone at a level that works non-compliance with PO33. I am also satisfied the structure of the building at this lower level has been designed and will be constructed to be flood resilient. This is but a further reason to conclude compliance has been demonstrated with PO33.
  1. [80]
    The adopted planning controls do not, in my view, stand in the way of an approval. This case is one where compliance can be achieved with the relevant assessment benchmarks through the imposition of development conditions.
  1. [81]
    Finally, in reliance on Kaydren Pty Ltd v Gold Coast City Council (No.2) 1 APAD 376, Mr Job KC submitted that, even assuming the FEMP was implemented, the Court would be reluctant to grant an approval here.  The so-called Kaydren ‘principle’ is set out at p. 382 of the judgment.  It follows a discussion by Carter DCJ about a proposed condition limiting the daily hours of operation of a doctor’s surgery, which would require regular and continued supervision.  In this context it was observed:

“…The courts have always emphasised the undesirability of granting consent subject to conditions which require “regular and faithful” observance, not only because faithful observance is difficult, but also because supervision of that observance might often be well nigh impossible…”

  1. [82]
    The undesirability of granting an approval subject to the condition discussed by Carter DCJ can be readily accepted. That case is, however, a very different one to that now before the Court. The conditions directed to the FEMP do not require regular observance in the same way conditions going to the daily hours of operation of a Doctor’s surgery, which is a use that may need to respond to health emergencies outside of the prescribed hours.  Further, observance and associated supervision of the FEMP will not be difficult.  As an example, Council, having regard to its own records, could readily confirm whether compliance has been achieved with the condition discussed in paragraph [24].  This audit could be conducted independently of any contact with the owner or any tenant. 
  1. [83]
    It can also be observed, by reference to historical flood data, that the FEMP is unlikely to be engaged daily, or even regularly. Working with historical flood data for the Logan and Albert Rivers (Ex. 10), and taking into account the direct relationship between the peak river flood level on the land relative to the Waterford stream gauge, history suggests the trigger for evacuation has been engaged 8 times since January 1887, with 3 occurring in the last 11 years. The 8 occasions occurred in January 1887, January 1947, January 1974, February 1976, February 1991, January 2013, March 2017 and March 2022 flood events.
  1. [84]
    I am satisfied an approval granted subject to conditions would not engage the general proposition set out in the passage cited above from Kaydren.

Disposition of the appeal

  1. [85]
    The appellant has discharged the onus.
  1. [86]
    The appeal will be allowed in due course, with the development application approved subject to conditions. The conditions will include those discussed in paragraphs [14] and [24]. The preparation of a conditions package will also require an updated FEMP to be prepared. This is required to, among other things, correct minor errors pointed out in Council’s written submissions.
  1. [87]
    I will hear from the parties as to orders that fix a timeline for the preparation of conditions and an updated FEMP.
Close

Editorial Notes

  • Published Case Name:

    Pynhall Pty Ltd v Logan City Council

  • Shortened Case Name:

    Pynhall Pty Ltd v Logan City Council

  • MNC:

    [2024] QPEC 11

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    22 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Austin BMI Pty Ltd v Ipswich City Council [2023] QPEC 27
2 citations
Jump To
Cite 1 - [2023] QPEC 27
Cite 2 - [2023] QPEC 27
Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2023] QPEC 26
2 citations
Jump To
Cite 1 - [2023] QPEC 26
Cite 2 - [2023] QPEC 26
IB Town Planning v Sunshine Coast Regional Council [2022] QPELR 791
3 citations
Jump To
Cite 1 - [2022] QPELR 791
Cite 2 - [2022] QPELR 791
Cite 3 - [2022] QPELR 791

Cases Citing

Case NameFull CitationFrequency
Cheep Stays Pty Ltd v Ipswich City Council [2024] QPEC 342 citations
The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor [2025] QPEC 112 citations
Think Outdoor Pty Ltd v Brisbane City Council [2024] QPEC 482 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.