Stock Corporation Pty Ltd v Yarra CC  VCAT 958
After a two and a half day hearing, in Stock Corporation Pty Ltd v Yarra CC  VCAT 958 (4 September 2020), the Tribunal set aside the refusal of Yarra City Council (Council) issued at the direction of Melbourne Water (MW), and directed that a permit be granted to allow the development of a five storey mixed use building within a Land Subject to Inundation Overlay (LSIO) at 42-50 Flockhart Street, Richmond (Land).
Council was supportive of the proposed development on planning and urban design grounds, however it was required to refuse the permit application as MW, the determining referral authority, objected to the development on the basis of extreme flood hazard, the potential risk to life and safety and that it was contrary to the purposes of the LSIO. The land has a potential 1in100 inundation depth of around 3 to 3.5 metres.
As the planning merits of the matter were not in dispute the hearing concentrated on the risk to life and property and whether this could be managed.
The Land and extreme slow rising floods
The Land is adjacent to the Yarra River in an established industrial area, and recorded a peak flood level of 11.42 metres AHD in 1934. The water catchment relevant to the Land is the entire upstream Yarra catchment, and the nature of the flood hazard is a slow rising flood. This means that there is a longer lead time to the commencement of flooding (72 hours), a period of time when the flood is at its peak, a slow dissipation of the flood waters and a lower water velocity than in flash flooding.
The applicant’s experts disagreed with Melbourne Water’s modelling and suggested that the 1934 event did not represent the 1/100 year flood event, that the frequency of the flood event is unconfirmed and untested and that the “depth of water in a 1/100 year event is now probably less because the characteristic of the catchment have changed.” Senior Member Naylor (SM Naylor) agreed with the applicant’s experts.
SM Naylor agreed with the applicant “that the LSIO is not a planning control that is designed to prohibit or discourage any particular form of development. Rather, the control focuses upon minimising the flood damage and allowing development that is ‘compatible’ with the flood hazard” and that the LSIO “does not prohibit or discourage any particular land uses or intensity of land uses.”
SM Naylor recognised the various policies, strategies and guidelines on minimising risk to life and property however found that the policies and guidelines must be balanced against other relevant planning policies and that, in this proceeding, the strategic value of the Land as part of the Victoria Street Major Activity Centre was an important consideration. SM Naylor identified:
“In terms of balancing this policy with the policies about flood risk, the outcome to be achieved in terms of net community benefit and sustainable development should focus on managing the flood risk as opposed to sterilising or substantially limiting development on this site.”
Flood Emergency Response Plan (FERP)
SM Naylor identified at the close of the second day of the hearing that she required further information. In particular she required an actual FERP that would articulate the flood management responses required to appropriately manage and mitigate the risk to life and property in the event of a 1/100 year flood event.
Importantly, the Tribunal noted that without the comprehensive FERP the decision of Council may have been upheld, as in order to manage the risk to life and property it was essential that the FERP be prepared. A condition on a permit simply requiring a FERP would be insufficient.
A number of specific building design measures were included to deal with the flood risks, including all electrical installations being above ground level and barriers to prevent cars floating downstream should any cars be left on site, despite the early warning, and not fill with the slowly rising water.
In setting aside the Council’s decision and Melbourne Water’s objection, SM Naylor found that after balancing the requirements of the planning scheme against the various competing policies and guidelines and with the benefit of viewing the FERP that she was “satisfied the [flood] warning system and the timing of this system together with the [flood warden] training and various contacts for each role provides acceptable management of risk…[and that the]…content of this plan satisfies me that it can acceptably manage the flood risk.”[53-54]
This decision sets an important new bar for development in flood risk areas. It means that in applying its flood policies Melbourne Water needs to take a practical, flexible approach rather than simply rejecting all proposals. But at the same time, applicants need well thought through strategies to properly manage the flood risks.
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This article was written by Mark Bartley, Partner and Sonia Turnbull, Senior Associate who acted for Stock Constructions in the matter.