7-9 Carinya Street Pty Limited v Queanbeyan-Palerang Regional Council [2026] NSWLEC 1477

Catchwords: DEVELOPMENT APPEAL — c ommercial premises — medical centre — flooding — floodway — inner floodplain hazard category 1 Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: 7-9 Carinya Street Pty Limited v Queanbeyan-Palerang Regional Council [2026] NSWLEC 1477 Hearing dates: 24-25 February 2026 and 23 March 2026 Date of orders: 05 August 2026 Decision date: 05 August 2026 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is dismissed. (2) Development application 2024/0488 for the demolition of an existing building, construction of a two-storey health service facility (medical centre) and associated tree removal and landscaping at 7- 9 Carinya Street, Queanbeyan is refused. (3) The exhibits are retained. Catchwords: DEVELOPMENT APPEAL — c ommercial premises — medical centre — flooding — floodway — inner floodplain hazard category 1 Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 Queanbeyan Local Environmental Plan 2012 (repealed) Queanbeyan-Palerang Regional Local Environmental Plan 2022, cll 2.3, 5.21, 5.22 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Denoci v Liverpool City Council [2020] NSWLEC 102 DVCI Pty Ltd v City of Parramatta Council (No 2) [2020] NSWLEC 1319 Goldcoral Pty Ltd (Receivers and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Hoxton Park Residents Action Group Inc v Liverpool City Council Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47 Texts Cited: Department of Planning and Environment, Flood risk management manual (2026) Department of Planning, Housing and Infrastructure, Shelter in place guideline for flash flooding (2024) Department of Planning and Environment, Support for emergency management planning flood risk management guideline EM01 (2023) NSW State Emergency Service, Queanbeyan-Palerang Local Flood Emergency Sub Plan (March 2024) Queanbeyan Development Control Plan 2012 Queanbeyan-Palerang Regional Council, Queanbeyan Floodplain Risk Management Study and Plan (December 2020) Category: Principal judgment Parties: 7-9 Carinya Street Pty Limited (Applicant) Queanbeyan-Palerang Regional Council (Respondent) Representation: Counsel: J Smith (Applicant) C Novak (Respondent) Solicitors: Foundation Law Group (Applicant) BAL Lawyers (Respondent) File Number(s): 2025/140391 Publication restriction: Nil JUDGMENT The Applicant, 7-9 Carinya Street Pty Limited ( ‘ Carinya ’ ) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against a refusal of DA.2024.0488 by Queanbeyan-Palerang Regional Council ( ‘ Council ’ ) at 7-9 Carinya Street, Queanbeyan . T he DA seeks development consent for : Demolition of the existing building and removal of eight trees/shrubs. Construction of a two storey medical centre with five tenancies and amenities on the first floor . Ground floor car parking comprising 14 car parking spaces (including two accessible spaces), motorcycle spaces and bicy c le spaces . Ancillary works and services. The remaining issues related to the suitability of the site within a floodplain. With consideration of the evidence, I find that the proposed development is not suitable for the site and not in the public interest due to the flooding risks and is refused. The site and context The subject site is legally known as Lot 9 DP 1049212 and Lot 1 DP 1149333 at 7-9 Carinya Street, Queanbeyan. The site is approximately 1,341.3m 2 i n area with a frontage of 32.8m to Carinya Street . The site slopes to the street . The site is located within the commercial centre of Queanbeyan, on the eastern edge. Nearby uses include commercial , residential and community development . The hearing commenced on site. The parties drew the Court ’ s attention to the aspects of the site, the proposed emergency evacuation location, adjoining properties and buildings and the Queens Bridge (over Collett Street) to view the floo d sensors /gauges . The site is zoned E2 Commercial Centre under the Queanbeyan-Palerang Regional Local Environmental Plan 2022 ( ‘ LEP ’ ). Key Issues At the hearing, Council pressed that the following contentions in the Amended Statement of Facts and Contentions (Ex 1 ) warrant refusal : Contention 2: The site is not suitable for the proposed development. Contention 3: The proposed development does not adequately provide for the safe evacuation of people and does not propose adequate measures to mitigate risk to life in the event of flood. Contention 4: The design of the proposed development is not compatible with the flood risks and flood hazards of the Site. Contention 5: Approval of the DA would not be in the public interest. Evidence Expert flooding evidence was submitted in a joint expert report ( ‘ Flood JER ’ ) (Ex 1) by Anthony Barthelmess for the Applicant and Steven Molino for Council. During the hearing, Council was granted leave to rely on evidence from Ms Kylie Coe , Manager of Development at Council (Ex 6 ). Evidence was adduced in relation to the progress of a draft DCP and other development applications within the Queanbeyan town centre. Oral evidence was adduced at the hearing. Flooding and evacuation The remaining issues revolve around the impacts of flooding and in particular, risks to the safety of the future occupants and visitors . The objectives of the E2 Commercial Centre zone are as follows , of which I have had regard to . The proposal is not anti-pathetic to the relevant objectives and is consistent with many of them : • To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity. • To encourage investment in commercial development that generates employment opportunities and economic growth. • To encourage development that has a high level of accessibility and amenity, particularly for pedestrians. • To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area. • To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces. • To recognise and reinforce the primacy of the Queanbeyan central business district as the commercial and retail centre of Queanbeyan. • To encourage some limited high density residential uses to create vitality in town centres. It was confirmed during the hearing that the proposed use is for a medical centre, and not the group term health services facility. A medical centre is defined in the LEP as follows: medical centre means premises that are used for the purpose of providing health services (including preventative care, diagnosis, medical or surgical treatment, counselling or alternative therapies) to out-patients only, where such services are principally provided by health care professionals. It may include the ancillary provision of other health services. Clause 5.21 flood planning of the LEP applies, which is set out further below . Part 2.5 Flood Management of the Queanbeyan Development Control Plan 2012 (DCP) applies. The controls within 2.5.6 for land within flood planning areas are relatively limited to flood levels, structural design and certification , and escape windows (including an escape window above the flood planning level to enable a rescue boat to approach) . Similarly , Part 2.5.7 in relation to floodways provides that commercial buildings (excluding overnight accommodation) are permitted subject to conditions for engineering certification post construction relating to clearances, piers, foundations and hydraulic effects. It is understood that these are all met by the proposed design or via agreed conditions of consent. I would note that new residential development and overnight accommodation is not supported by the DCP in floodways. Part 6.2. 18 of the DCP simply refers back to cl 5.21 of the LEP and Part 2.5 of the DCP. The site is mapped as being within a flood planning area under the LEP and a floodway shown on Map 1 in the DCP. The Queanbeyan Floodplain Risk Management Study and Plan 2021 ( QFRMSP ’ ) identifies the site as being within a flood planning area subject to the 1% AEP flood event and the highest category of floodway, being the Inner Floodplain (Hazard Category 1). A Flood Information Certificate was issued by Council and provided levels , velocity rates and hazard ratings relating to the 1%, 2%, 5% and 20% average AEP flood events , as well as the probable maximum flood ( ‘ PMF ’ ) event . The mapping provided was for the AEP flood hazards and depths . The re have been several flooding related reports undertaken for the proposal. These include the Flood Impact Statement dated 4 December 2024, Further Report dated 12 August 2025 and Flood Impact Statement and Flood Emergency Response Plan dated 25 November 2025 ( ‘ FIS/FERP ’ ) all prepared by Rienco Consulting . The FIS/FERP recognise s that the site is affected by the 1% AEP and PMF events (amongst other flood events) . Relevantly, the Flood Reports which utilised the hydraulic model of the 1% AEP event used for the QFRMSP provide that there will be virtually no effect on floo d levels at or upstream of the site and will primarily reduce the stream velocity off site . One minor area of increased velocity occurs on site, which i s of little consequence. The modelling shows that it would be demolition of the existing dwelling that would have impacts, whereas the construction of the proposal has virtually no effect on flood levels. The front of the site has the lowest surface level, at approximately RL 571.5 AHD . The peak 1% AEP flood surface level is approximately RL 575.4 AHD, equating to a flood depth of 3.9m. In the PMF event, flood depths are approximately 16m through the site. Modelling occurred for the 1% AEP rainfall depth event , including 50 different flood events, which demonstrated that the worst case flood behaviour would occur in the 0.5 hour event. The peak flood depth at the front of the property was 310mm, peak hydraulic hazard was H2 (unsafe for small vehicles , but not people) and a minor area of the site along the northern boundary is affected to a small depth of 80mm. The various amounts of lead time to evacuate is provided below for the key flooding events (p 11 of the FIS/FERP). The evacuation route is between 60m - 300m , depending on the flood event, along a continuously rising access route along Carinya Street (extract from the FIS /FERP p 7): In the PMF event, evacuation of cars from the site and adjoining sites including the opposite medical centre , the QPRC sports facility and residential development , as well as vehicles picking up people were assessed . The FIS/FERP found that the cars could evacuate within a one hour period . The FIS/FERP states that a total evacuation of the medical centre can occur within one hour. This is based on approximately 50 people on site , with an estimated time of one person leaving per minute. The below table extracted from the F IS /FERP summarises the feasibility of this time estimate. The FIS/ FERP primarily relies on evacuation as the key method to minimise risk to life. There are four triggers identified, any of which would result in the premises not opening for the day , closing for the day and/ or immediate evacuation . These triggers are: M ore than 50mm rainfall forecast in next 24 hours , or Flood watch issued by NSW SES or Bureau of Meteorology for flooding in the Queanbeyan River , or Water level exceed ing 568.3m AHD on the Queanbeyan River instrument operated by the Bureau of Meteorology ( ‘ BoM ’ ) (Station Number: 570033) , or Physical detection of flooding. The FIS/FERP forewarns that “ if the trigger for action is too high (or too late) then this threatens effective evacuation. If the trigger for action is too low (or too early) then this also threatens effective evacuation as occupants ’ belief in the warnings will become sceptical and when they do need to evacuate, they may not take the necessary action ” . Expert evidence The flooding experts agree on the following aspects: The site is located within the Inner Floodplain (Hazard Category 1) in the Q FRMSP . The QFRMSP identified the area as being unsuitable for commercial development. The FIS/FERP w as updated to asses s the effects of existing development that may need to evacuate at the same time and capacity on existing evacuation routes, and assessment of the potential for overland flooding to disrupt evacuation. The proposed development has pedestrian and vehicular access via Carinya Street with the following levels: 1m fall from the rear to Carinya Street. Pavement levels between RL 571.5 AHD to 571.8 AHD. Proposed d riveway level of approximately 571.2 AHD. Proposed ground floor car park level of 572.5 AHD. Proposed first flood level of 575.9 AHD. Three suites on the first flood have a door opening onto an external walkway at 575.9 AHD and another suite proposes an operable window to also function as a flood escape window. T he FIS / FERP satisfactorily addressed the 1% AEP flood event . That cl 5.21(b) of the LEP is satisfied, and the updated flood model results confirm that the development will not adversely affect flood behaviour and will not detrimentally increase potential flood affection on other developments or properties as: The peak flood level increase upstream is no more than 20mm, imperceptible over the flood depth of 3.1m. The increase occurs over a paved car park which would already incurs more than 3m over it at that stage of the flooding. The minor increases in levels are offset by much more substantial flood level reductions on existing adjoining land and structures. That the variation to P art 2.5.7(b)(i) of the DCP relating to clearance under buildings is not met, but that the objectives are achieved as the development minimises off site changes to flood behaviour. That the potential blockage effects of debris have been accounted for in the updated RIENCO Flood Modelling , consistent with the approach used in the QFRMSP model to simulate the effects of urban development including buildings and structures via a surface roughness value . A worst case scenari o has been modelled, including significant build up of debris. The model results demonstrate no detriment al effects on flood behaviour and function. Mr Barthelmess for Carinya agrees that the QFRMSP is a relevant document but considers that the draft planning controls nominated in the QFRMSP should be given little weight as they have not been elevated into a DCP. Given that several years has passed since their adoption, there must be a reason Council has not done so. This may be because of the exhibition required and that the draft controls propose to prohibit land uses inconsistent with the LEP. In his experience, it is common for control s recommended in a flood risk management study to be amended or not adopted based on feedback during exhibition. He is also critical of how the inner floodplain category has been determined, including questions about the unspecified depth and velocity as well as areas around the Riverside Plaza and Queanbeyan RSL Club which unusually follow the cadastre. Mr B arthelmess ’ evidence is that the FIS /FERP demonstrates that the proposed evacuation can occur with existing developments and the route is not disrupted by overland flooding. His evidence is that cl 5.21(2) does not apply to the extent of the PMF and instead is limited to the defined flood planning area. There are no other controls in the LEP or DCP for land outside the flood planning area , as they are considered safe areas for occupation and efficient evacuation. Development within a flood planning area only needs to demonstrate efficient evacuation and safe occupation immediately outside the flood planning area. Here, the distance from the development to the edge of the flood planning area is 60m. The FIS / FERP consider s the full range of flood events, however cl 5.21 only relate s to the flood planning area. Mr Barthelmess ’ evidence is that the FIS/ FERP is robust and contains safeguards in case of failure: Reliance on a f lood watch issued by the Bureau of Meteorology (BoM) or the NSW SES to ensure that the site is not occupied well in advance of a flood. The probability of a F lood W atch not being issued would be less than 1%. Reliance on a rainfall depth forecast issued by BoM Monitoring within the upstream catchment for Googong Dam would mean the probability of a large impending storm not being forecast would be less than 10%. Reliance on the physical detection of rising flood water and minor flood warnings by the BoM or NSW SES , with a probability of not being issued being less than 1%. Ge neral awareness through monitoring of Council ’ s emergency dashboard . If the s e all fail, the SES ’ s evacuation plan for Queanbeyan will be activated and evacuation through flood boats from the building will occur . The building has been designed for such a scenario , as required by the DCP. Safe refuge on the first floor of the building has been incorporated. Mr Barthelmess ’ evidence is that t he FIS / FERP rel ies on people behaving intuitively through listening to trained medical staff to vacate the site and for employees to stay away and keep the centre closed during a flood watch. Risk to life would only arise when a person behaved count er intuitively and remaining at the site against instructions to leave. If this did occur, the ‘ difficult ’ visitor would still have 24 hours to leave before the flood arrived. Mr Ba rthelmess disagreed with Mr Molino ’ s evidence that “ 30% of all floods are not preceded by a Flood Watch and 10% of major floods are not preceded by a Flood Watch ” . In this instance , the warning system relies on several flood detection sensors , including the Queens Bridge and several upstream instruments including the major Googong Dam. The probability that all four would fail at the same time is 0.8%. That a major flood event would go undetected is implausible and the SES evacuation plan relies on the same sensors. Mr Barthelmess says that the proposal is compatible with the flood function and behaviour of the land. The development does not block o r impeded the floodway as demonstrated by the modelling. The DCP encourages commercial development in the CBD through its controls around the floodway areas. The proposal is consistent with the explicit expectations of the DCP. Mr Barth elmess ’ evidence is that the FIS /FERP was updated to include the potential for local and riverine flooding at the same time. However, the proposed tiered approach to emergency management involves an evacuation 24 hours before rainfall has fallen. It does not matter what type of flooding eventuates, as no one will be on the site. If the first tier s are not triggered, then the evacuation would be triggered on the physical detection of floodwater and a minor flood warning based on riverine flooding. In this circumstance: For f lood events up to and including the 10% AEP event, coincidence local and riverine flooding does not impede evacuation as Carinya Street is not affected by local flooding. For events between the 10 % and 1% AEP event, coincidence local and riverine flooding does not impede evacuation as Carinya St reet remains trafficable. In a rare event such as the PMF , coincidence local and riverine flooding could impede self-evacuation. The building has therefore been designed to be evacuated consistent with the SES Local Flood Plan and DCP. This rare event would require a failure of the ‘ first tier ’ trigger (rainfall) with a short local event with the longer duration riverine PM F event . The likelihood of these all occurring together is 0.00000000001% . It is in this circumstance that occupants may have to rely on the SES for evacuation. Mr Molino for Council agrees with the QFRMSP that the erection of buildings, carrying out of work and use of the land is unsuitable for the site . This is on the basis that the site and its access to Carinya Street is within the extent of the 5% AEP flood , is inundated to a depth of more than 3.5m in a 1% AEP flood event , inundated to a depth of more than 16.5m in the PMF event and within a high hazard floodway. This information justifies the identification as being in the Inner Floodp l ain (Hazard Category 1), irrespective of questions about boundaries drawn for other sites. Mr Molino ’ s evidence is that the FIS / FERP represents the best means of ensuring the proposed development is vacant when it is to be impacted by flooding. However, it cannot provide sufficient safeguards to m an age the risks to life at the premises due to: Direct and indirect risks to life if evacuation fails. Probability of floods posing direct and indirect risks to life. Frequency with which evacuation would be triggered. Number of factors which could contribute to evacuation failure. Mr Molino relies on the below to inform his reasoning that there cannot be sufficient safeguards. The site can be impacted from flooding from the Queanbeyan River and overland flow from the local catchment to the southwest of the site. In relation to riverine flooding , the site is not affected by a 10% AEP flood . T he design peak levels and durations at the site for other flood events are as follows (Flood JER p 16): The nearest flood gau ge relied on by the BoM is Queens Bridge. The BoM ’ s flood levels and relevant flood warnings for this gauge are as follows (Flood JER p 16): In relation to overland flooding (Flood JER p 17) : “ The critical duration for the overland flow catchment upstream of the site is 0.5hr . The low point on Carinya Street in front of the site experiences H1 flooding in events between the 5% AEP and 1% AEP critical duration events . It experiences H2 flooding up to 360mm deep in the 0.5% AEP and 420mm deep in the 0.2% AEP critical duration events . Overland flood duration data was not available from the model results for any event other than the PMF . Overland flooding in Carinya Street would have durations of up to 6hrs in a PMF . ” Mr Molino ’ s evidence is that if flood waters rise above the first floor of the building when it is occupied, there is a risk to occupants drowning as the flood hazard is both in the building and outside. Section A2.5.2 of the Support for E mergency m anagement p lanning - flood risk management guideline EM01 ( ‘ Emergency Management Guideline ’ ) states that there is no evidence based method for determining a safe or tolerable duration of isolation from flooding. Further, simply being isolated by floodwater can result in secondary risks to life in terms of medical emergencies and fire due to power surges or makeshift lighting/ heating. The Emergency Management Guideline states in Table 12 that the provision of readily accessible habitable areas should be above the PMF. Mr Molino ’ s evidence is that, u nderstanding that the FERP /FIS primarily relies on evacuation, t he proposed backup strategy to shelter in place also does not meet the Shelter in place guideline for flash flooding published by the Department of Planning Housing and Industry in 2025 ( ‘ Shelter Guidelines ’ ) , which refers to people sheltering safely above the PMF level and identifies medical centres as being potentially unsuitable for shelter in place . Mr Molino ’ s evidence is that the frequency of flooding poses risks to building occupants. Flooding events above the current 1% AEP flood level would flood the first floor, including climate change for the 1% AEP event . His evidence is that the first floor “ would be flooded by water 0.9m deep in the 0.5% (1 in 200) AEP flood and should climate change result in only a 10% increase in runoff the 1% AEP flood would be 1.1m deep on the first floor. In a 0.2% AEP flood (a similar probability to the 2022 Lismore flood), the water would be 2.7m deep ” . A PMF event would require a building 3-4 storeys higher. Mr Molino ’ s evidence is that rescue by flood boats would be difficult and dangerous, as the site is located in a floodway with a potential for large items of debris to impact the boat . The location would place rescuers and occupants in unnecessary danger. Mr Molino also expresses concern about the frequency of evacuation triggers for an evacuation event that would occur on average once every 15 years. The FIS and FERP suggest evacuation triggers for smaller triggers, such as the minor flood level on the Queens Bridge gauge, where the flood will not reach Carinya Street. In addition, the trigger for a flood watch is not always followed by a flood warning , as stated by the BoM: “We issue a Flood Watch when forecast rainfall and catchment conditions suggest that local and riverine flooding is possible. Its purpose is to provide early advice of a developing weather situation that may lead to flooding. A Flood Watch isn't a warning of imminent flooding” (p 19 Flood JER). The other trigger in the FERP to address the risk of the evacuation route being cut off by local flooding during an evacuation from riverine flooding is the forecast of 50mm of rainfall. 50mm is the total rainfall during the critical duration of a 1% AEP floo d. However, the critical amount for the 1% AEP flood is 50mm rain in 0.5 hours , where as the forecast period is for a 24 hour period. Data from the BoM shows that 50mm of rainfall over 24 hours has a 63.4% chance of occurring in any year (pp 19-20 Flood JER). Mr Molino ’ s evidence is that the frequency of flood evacuation triggers are likely to result in warning fatigue , particularly during wet weather, and result in triggers being ignored as a false alarm. These triggers will increase as a result of climate change. In terms of the evacuation, Mr Molino ’ s evidence is that the warnings are not reliable. Relying on literature from the SES, he says that 30% of all floods are not preceded by a Flood Watch and 10% of major floods are not preceded by a Flood Watch. In addition, reliance on physical gauge levels are not 100% reliable as the gauge can be damaged by debris. Mr Molino ’ s evidence is that the times for evacuation are higher than stated. Comparing the times to the Timeline Evacuation Model utilised by the NSW SES requires consideration of the full range of flood rates of rise that could occur . Carinya has relied on the QFRMSP rates of rise. Using a full extent of floods, it is conceivable that floods which require the premises to evacuate could rise from the Queens Bridge g auge trigger level to Carinya Street in an hour or two. Further, the FIS / FERP estimate s a time for occupants to evacuate within an hour. This overlooks an important consideration by the NSW SES known as the Warning Acceptable Factor, which requires an allowance of approximately one hour for occupants to receive a warning and confirm it applies to them be fore they prepare for, execute and evacuate. The frequency of false alarms due to the number of triggers necessitates the inclusion of this timeframe for evacuation. Mr Molino agrees that the development would not significantly impede the functioning of the floodway, but that does not equate to the development being compatible with it. The risks associated with locating this development in a floodway need to be satisfied and have not been due to the potential risks to occupants. Mr Molino disagrees with the probabilities put forward by Mr Barthelmess. He says this relies on local and riverine flooding having the same recurrence intervals. This is no t necessarily the case , as the same storm might include a localised storm cell. Therefore, a 1% AEP overland flood could occur at the same time as a 20% AEP riverine flood or vice versa. Council’s submissions Ms Novak submits that the remaining issue is in essence, about risk and consequences. In particular, the risks to persons in the health facility , whether they are patients, support persons or workers, during a flood event and the consequences to those persons in the event they could not be evacuated to a n appropriate place of refuge. Ms Novak submits that the se are relevant matters for consideration pursuant to s 4.15(1)(a)(i) of the EPA Act and cl 5.21 LEP , s 4.15(1)(c) of the EPA Act regarding suitability of the site and s 4.15(1)(e) regarding the public interest. Ms Novak submits that by its nature, the use of the premises for a medical centre will have vulnerable occupants. People who are unwell , incapacitated (temporarily or otherwise) , elderly or with cognitive or physical impairments are likely to occupy the premises , which make evacuation more difficult. The subject site is not only affected by local overland flooding, which the Applicant has focused on. The riverine flooding and the interrelationship between an overland /local and riverine flooding event has been disregarded and t he Court needs to consider both. Ms Novak submits that the agreed evidence is that : Appendix E – Draft Flood Policy of the QFRMSP describes the flooding characteristics of the Queanbeyan River . The Planning Level for the site is 575.9AHD (1% AEP level of 575.4m AHD + 500mm freeboard. The QFRMSP provides a reasonable analysis of: Extent of flood inundation as shown in Mr Melino ’ s Figure 2 in the Flooding JER. 1% AEP flood depths as shown in Mr Melino's Figure 3 in the Flooding JER. Probable maximum flood depth as shown in Mr Melino's Figure 4 of the Flooding JER. The flood levels and relationship to the proposal identified by Mr Melino in Table 1 of the Flooding JER are agreed . When flooding levels reach a 5% AEP event level t he evacuation route is not available and the site becomes land locked . Meaning, a flood event with a height of 7.9m or greater at the Queens Bridge g auge results in the site being landlocked. Council ’ s flood information certificate refer s to the combined hazard curves – vulnerability thresholds (Ex 5) with the below maximum hazard classifications: 5% AEP Flood : H3 classification (unsafe for vehicles, children and the elderly) . 2% AEP Flood: H5 classification (unsafe for vehicles and people. All buildings vulnerable to structural damage. Some less robust building types vulnerable to failure). 1% AEP Flood: H6 classification (unsafe for vehicles and people. All building types considered vulnerable to failure ). Probable maximum flood: H6 classification (as above). There have been seven floods since 1891 with a recorded height of greater than 7.9m at the Queens Bri dg e g auge, i ncluding in 2010. The QFRMSP notes that the flood levels in the Queanbeyan River at Queanbeyan generally rise at a maximum rate of 0.5-0.8m per hour and could rise up to 4.5m per hour during an extreme flood. Ms Novak submits that cl 5.21 of the LEP applies to land identified by a consent authority as being within a flood planning area. This has the same meaning as in the Flood Risk Management Manu a l (June 2023) ( ‘ Flood Manual ’ ) at p 114. Chapter 6 of the Risk Manu a l adopts a set of flood concepts . The flood planning area is the area of land below the flood planning level ( ‘ FPL ’ ) . The FPL is determined through the flood level from a defined floor event and the freeboard level for flood risk management. The QFRMSP, prepared for Council , provides a detailed assessment of flooding risk and adopts a flood planning area of “ equal to the flood level derived from the 1% AEP flood event, plus the addition of a 0.5m freeboard ” . The site requires a freeboard level of 575.9AHD and o n this basis, cl 5.21 of the LEP applies. The dispute between the parties is whether the ‘ flood event ’ referred to in cl 5.21 of the LEP applies to only the 1% AEP. Council ’ s position is that additional matters such as the freeboard and the PMF / riverine flooding apply. In the alternative, flo o ding events beyond the 1% AEP , including the PMF are relevant under s 4.15 of the EPA Act (site suitability and public interest). Ms Novak submits that cl 5.21(2)(a) regarding the development ’ s compatibility with the flood function and behaviour on the land applies. The site is in an area nominated as a floodway and the hazard categorisation in the QFRMSP is ‘ high hazard ’ and within the Inner Floodplain (Hazard Category 1) . Relevant to flood behaviour is the depth and period of inundation for riverine flood events identified by Mr Melino in Table 1 of the Flooding JER. The extent of inundation and isolation is in excess of 10-28 hour s, a significant period of time for the various characteristics of occupants visiting the site. Ms Novak submits that the estimated period of isolation for a flood event is lengthy and contrary to the Department of Planning, Housing and Infrastructure ’ s Shelter in Place Guidelines ( ‘ Shelter Guidelines ’ ) for flash flooding, exacerbated by the vulnerability of occupants and patients. The development is in consistent with the Shelter Guidelines as: The Shelter Guidelines identify that medical centre s may not be suitable for shelter in place. Significant periods of isolation that may occur are in excess of the time contemplated by the Shelter Guidelines. The development should not be located in an area of high hazard flooding , such as being within a floodway or high hazard H5 or H6 area. The site fails these requirements and is identified as being in a floodway and a high hazard area with a H5-H6 classification. Ms Novak submits that there are some flood events where there would be no ability for safe occupation of the premises, including the PMF event . Mr Melino ’ s evidence identifies the risks of evacuation failure in respect of boat rescue and climate change. The Court cannot reach a positive state of satisfaction that the development will not adversely affect the safe occupation of people in the event of a flood. Ms Novak submits that the Applicant has relied on people safely walking through floodwaters from the site to the evacuation point as the waters would be classified H1 . This has been based on an 1% AEP overland flood event, not a river ine flooding event. The parties agree that the proposal adequately addresses the 1% AEP event . In the FIS/ FERP, the Applicant has not made an equivalent assessment for a riverine event or the coexistence of both an overland and riverine event. Ms Novak submits that efficient evacuation has not been demonstrated for non -ambulate patients or those with an impairment, and this has not been considered in the FIS/ FERP or by Mr Barthelmess. The evacuation point 300m from the site is an easy distance for someone with full mobility but fails to take into account the vulnerability of the occupants who may have more limited mobility. In the event of occupants s helt ering in p lace, the reliance on SES boats cannot be relied on to satisfy cl 5.21 of the LEP. Such flood boats do not form part of the relied upon SES ’ s Queanbeyan Palerang Local Flood Emergency Sub-Plan (2024) . Ms Novak submits that the FIS/ FERP is insufficient to address cl 5.21(2)(c) of the LEP for the reasons given by Mr Melino and by the Applicant ’ s acceptance of proposed condition 49 for a detailed FERP . Ms Novak submits that site is not suitable for the proposal. Mr Barthlemess disputes some of the boundaries of the Inner Floodplain (Category 1) in the QFRMSP as these could not be replicated in the Applicant ’ s modelling. However, the evidence focuses on one element and ignores the assessment of the oth er types of flooding including extent of inundation, riverine 1% AEP flood depths, probable maximum flood depths. The reasonable ness of the inputs and assessment undertaken to produce the QF RMSP are not in despite and the s a me TUFL O W model and data was used for the Applicant ’ s modelling. It was agreed in cross examination that the QFRMSP provided a reasonable analysis for flooding and that the assessment undertaken by Mr Melino in Table 1 of the Flood JER relating to riverine flooding. Ms Novak submits that the potential for more extreme weather events as a consequence of climate c hanges means there is a greater risk, particularly if there is an interrelate riverine and overland flooding event. Mr Melino ’ s evidence is that there is a real possibility that a flood would rise faster than the estimated t imes in table 4.4.2 – Trig g er Levels and Lead Time. The unchallenged evidence is that the riverine event could inundate the site within 60 minutes, preventing evacuation. An o verland flooding event at the same time would further compromise evacuation. Ms Novak submits that t he site is therefore unsuitable for a medical centre with vulnerable occupants having regard to the flood levels, duration of inundation for the range of riverine flood events (with a probability as high as a 5% AEP) and the flooding rate of rise. Ms Nova k submits that the Q FRMSP is a recent and comprehensive study commissione d by Council which assessed the impacts of flooding from the Queanbeyan and Molon glo Rivers. Appendix E of the QFRMSP has been prepared to guide future development in areas affected by flooding and are graded according to flood risk. The draft controls have not yet been implemented in the LEP or DCP , but this does not displace the assessment that the land is unsuitable for commercial development. The QFRMSP was prepared in consultation with the Department of Planning and SES, was publicly exhibited and has been formally adopted by Council. The DA is the second DA received after the adoption of the QFRMSP. There have been no departures for land located in the mapped Inner Floodplain (Hazard Category 1) area. The development consent for 7 Morisset Street is different, in that the site is located in the Inner Floodplain (Category 2B) and in a flood storage (high hazard) area as opposed to floodway (high hazard) area that the subject site is located in. The Q FRMSP makes a material difference between the suitability of development in these two floodplain categories. Ms Novak submits that an Applicant bears a persuasive onus of proof to satisfy the consent authority that development consent ought to be granted: Denoci v Liverpool City Council [2020] NSWLEC 102 and oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47. The Applicant has not discharged that persuasive onus. Applicant’s submissions Dr Smith submits that the proposed use for a medical centre is an expressly permissible use in the E2 commercial centre zone . Health services facilities are also permitted as an innominate permissible use. Clause 2.3(2) of the L E P requires that a consent authority must have regard to the objectives of the zone in respect of lan d within the zone. The proposal provides a business and community use that serves the need s of people in the area and will generate employment opportunities. Dr Smith relies on BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 ( ‘ BGP ’ ) at [115]-[119] that an application would be approved to use a site for a purpose for which it is zoned, provided that the project results in acceptable environmental impacts. As the proposal is a use contemplated in the zone, it is only reasonable to assume the site is suitable for that use : DVCI Pty Ltd v City of Parramatta Council (No 2) [2020] NSWLEC 1319 at [66]-[69]. There can be and there is no dispute that the proposed use is consistent with the objectives of the zone. Dr Smith places emphasis on the site ’ s commercial zoning since 2012. Dr Smith relie s on His Honour ’ s findings in Goldcoral Pty Ltd (Recei vers and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 ( ‘ Goldcoral ’ ) at [14 ] and [27]-[28], where Preston CJ held that the site had a long history of residential zonin g, reinforced by numerous adopted strategic planning strategies and that these re-assessments of the site found it to be suitable for residential development . The same facts apply here, as appropriateness of the site for the purposes of a medical centre has been reassessed continuously for at least 14 years and not changed despite multiple amendments to the LEP, including from the previous Queanbeyan Local Environmental Plan 2012 ( ‘ 2012 LEP ’ ) (repealed) . The 2012 LEP had been amended 11 times and each time the site was affirmed . The current LEP has been amended eight times, in addition to the Department of Planning ’ s Employment Z ones Reform s (in consultation with Council) through the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 . These reforms sough t to maxim ise productivity whilst minimising land use conflicts, ensuring they were fit for purpose and address barriers in the planning system that limit the ability of businesses. It was submitted that there has been ample opportunity to rezone the land , but Council has not done so. Dr Smith submits that the proposed amendments to the d raft DCP to provide for non-commercial development in the commercial zone would be inconsistent with the LEP. Dr Smith submits that cl 5.21 of the LEP applies to the site for the purposes of the 1% AEP flood, but not the PMF. In relation to the 1% AEP flood : The LEP defines, through the Flood Manual , the flood planning area. This includes consideration of the flood planning level, defined flood event and freeboard selected for flood risk management purposes . The Flood Manual states that t he flood planning level for residential development should generally start with a defined flood event of the 1% AEP plus freeboard (typically 0.5m). Council ’ s QFRMSP states the adopted Flood Manual approach of determining the flood planning level (being a designated flood event and level, plus freeboard). The flood planning area has been quantified in accordance with the Flood Manual , which is shown in red hatching on Figure E1.1 of the Q FRMSP (Volume 2). Section 3.5.1.2 of the QFRMSP details that the flood planning levels for mainstream flooding have been set , following several meetings with the Floodplain Risk Management Committee, at the peak 1% AEP flood level plus freeboard . During these local flooding events (rainfall events ) across 50 different flooding events in a 1% AEP , the FIS/FERP modelling showed that the peak flood depth at the front of the property was 310mm , with a hazard rating of H 1-H2. H1-H2 flooding is generally safe for people, vehicles and buildings with a low flood velocity similar to a lake. A small area of the site to the north is affected by a depth of 80mm. The FIS/ FERP details the flood behaviours for the site for the full range of flood events, including the PMF. The FERP strategy relies on evacuation of the building, which would be triggered by any of the four s ystems (flood watch warning, sensors, rainfall forecast, physical flooding detection). These triggers have been accepted numerous times by the Court. The FIS/ FERP includes details of the flood warning system to notify all persons on site of a trigger and to evacuate . The FIS/ FERP details the action response plan based on the triggers, for the operation and maintenance of the ongoing risks and responsibilities. Centre staff will be trained regularly to use the FIS/ FERP and will be responsible for coordination of customers to the evacuation point. They will also be medically trained to assist those who need it, and additional wheelchairs are to be kept on site for this purpose. Council ’ s concerns that people would not comply with the FIS/ FERP, flood warnings or the directions of centre staff would require people act in a way that is irrational or illogical, and contrary to advice. Dr Smith submits that cl 5.22 special flood considerations of the LEP standard instrument has not been adopted by Council. Consideration of the PMF is the function of cl 5.22 and in any event, a medical centre is not defined as a sensitive and hazardous development under that provision. In considering the likely impacts of the development pursuant to s 4.15(1)(b) of the EPA Act, Dr Smith submitted that the increasing remoteness in the chain of like ly consequences decrease the significance of the impact: Hoxton Park Residents Action Group Inc v Liverpool City Council at Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 [46]. Council ’ s approach is so remote that it is an absent consideration of cl 5.21 of the LEP. The tiered approach in the FIS/ FERP incorporates multiple layers of safety systems to close the centre. Any of the remote issues raised by Mr Molino have been addressed by the FIS/ FERP through a targeted fail-safe system for evacuation or the remote event that shelter in place is needed. The chance of its failure is 0.0001%. Dr Smith submits that it would be contrary to the objects of the Act to sterilise the development potential of the site for a commercial development on the basis of a remote theoretical flood event, which the FIS/ FERP has appropriately mitigated the risk s . Dr Smith submits that t he proposed development is well below the maximum height and floor space ratio under the LEP, is situated in a commercial centre zone and has no adverse impacts . There are no objections from the public, including the SES. Does cl 5.21 of the LEP apply for the PMF event – consideration and findings The first dispute between the parties is whether cl 5.21 flood planning of the LEP applies in relation to the probable maximum flood ( ‘ PMF ’ ) and if so, if it has been satisfied . Clause 5.21 is set out below : 5.21 Flood planning (1) The objectives of this clause are as follows— (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood. (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development— (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters— (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. (4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause. (5) In this clause— Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021. flood planning area has the same meaning as it has in the Flood Risk Management Manual. Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023. As required by cl 5.21, t he determination of the “ flood planning area ” is through a number of documents and defined terms, in particular t he Flood Ri s k Management Manual published by the NSW Government in June 2023 ( ‘ Flood Manual ’ ) . The Flood Manual defines flood planning area ( ‘ FPA ’ ) as “ the area of land below the FPL ” . The flood planning level ( ‘ FPL ’ ) is defined as “ the combination of the flood level from the [ Defined Flood Event ] DFE and freeboard selected for FRM purposes ” . The defined flood event ( ‘ DFE ’ ) is defined as “ the flood event selected as a general standard for the management of flooding to development ” . Flood Risk Management ( ‘ FRM ’ ) is defined as “ the management of flood risk to communities ” . Relevantly i n relation to the DFE , in the same section as the definitions under “ context for use/additional information ” , the Flood Manual states that the DFE “ a ims to reduce the frequency of flooding but does not remove all flood risk, for example, in selecting a 1% AEP flood as the DFE you are accepting that there is a 1 in 100 chance that a larger event will occur in any year. This risk is being built into the decision ” . The Flood Manual defines the PMF as “ the largest flood that could conceivably occur at a particular location, usually estimated from probable maximum precipitation, and where applicable, snow melt, coupled with the worst flood-producing catchment conditions ” . The QRFMSP defines the PMF as: “The largest flood that could conceivably occur at a particular location. Generally, it is not physically or economically possible to provide complete protection against this event. The PMF defines the extent of flood prone land, that is, the floodplain. For the study area, the extent of the PMF has been trimmed to include depths greater than 100mm.” The QFRMSP defines the flood planning area as: “The area of land that is shown to be in the Flood Planning Area on the Flood Planning Map.” An extract from the flood planning map from the QFRMSP shows the site with a red star , which is identified as a flood planning area : The QFRMSP define s the flood planning level as: "Flood levels selected for planning purposes, as determined in the Queanbeyan Floodplain Risk Management Study and incorporated in the associated Queanbeyan Floodplain Risk Management Plan . For development in the Queanbeyan River and Molonglo River floodplains, the FPL is equal to the flood level derived from the 1% AEP flood event, plus the addition of a 0.5 m freeboard ” (my emphasis, p 59) As submitted by Dr Smith, S ection 3.5.1.2 of the QFRMSP deals with setting the flood planning level , which states: “Following several meetings of the Floodplain Risk Management Committee it was determined that the FPL for main stream flooding be set equal to the peak 1% AEP flood level plus 500 mm , but that the minimum floor level of future residential development that is located in the Queanbeyan CBD be set at the peak 1% AEP flood level plus 1.2 m as this would allow for potential increases in peak flood levels associated with future climate change over the service life of the multi-storey residential towers” (my emphasis) Based on the above, I accept and adopt as my reasons the submissions of Dr Smith that cl 5.21 applies to the nominated DFE as determined by Council in the QFRMSP . The DFE selected is the 1% AEP flood event plus freeboard . The QFRMSP also recommends a MFL to include both th e 1% AEP event plus 1.2m freeboard and the 5% AEP flood event , which is not the DFE. T here is no reference to the PMF event being the DFE or part of it . In stepping through cl 5.21 and the definitions it calls up from the Flood Manual, I accept that the Flood Manual and the QFRMSP are the relevant documents to be considered in determining what land and flood event the clause applies to. The QFRMSP is clear in its repetition of the 1% AEP flood event plus freeboard throughout . This is the relevant defined flood event that has been selected for the management of flooding pursuant to cl 5.21 of the LEP . It is uncontroversial and agreed that the first floo r meets the required flood planning level, which is where the proposed use is to be located. As agreed between the parties and the experts, in relation to the 1% AEP flood event, there are no issues with the proposed development or the evacuation measures in the FIS/ FERP . I am satisfied that cl 5.21(2) has been met for the following reasons: I accept the agreement of the experts that the development is compatible with the flood function and behaviour of the land in that it generally improves flood impacts to adjoining properties and the minor increases to a portion on site and another site nearby are negligible . The experts agree that the FIS/ FERP represents the best means of ensuring the proposed development can be evacuated and will have no impacts to other people evacuating from nearby buildings. The proposed method of evacuation manages risk to life during a flood. There are no adverse enviro nmental impa c ts from the proposed development as envisaged by cl 5.21(2)(e). I have considered the provisions of cl 5.21(3) and find that they have been met for the following reasons: The modelling in the FIS/FERP demonstrates that climate change for the 1% AEP event has been considered ( Rienco letter dated 25 November 2025) . T he increase in flood levels from predicted climate change would be an imperceptible 26mm in the riparian area in circumstances where the peak flood level would increase up to 1.6m-1.7m. The scale and design of the building is modest and responsive to the flood conditions of the site. Safe evacuation during the 1% AEP event has been demonstrated by the FIS/FERP . In considering if the development could be modified or relocated , it is unlikely given its modest scale. This is not determinative and acceptable in the circumstances . Flooding, evacuation and site suitability for a PMF event – consideration and findings Notwithstanding that cl 5.21 of the LEP does not apply for impacts from a PMF event , I accept Ms Novak ’ s submissions and find that the evidence and issues raised in relation to flooding and risk to life are relevant matters for consideration under s 4.15(c) and (e) of the EPA Act including the suitability of the site and the public interest. In these circumstances, t his consideration needs to include weighing of Council ’ s policy decisions . I do not agree with Carinya ’ s submissions that the site is suitable for the proposed use simply due to its permissibility in the zone. If that was the case, s 4.15(1)(c) of the EPA Act would have little or no work to do. I t is uncontroversial that a starting point is as detailed in BGP in relation to an expectation of a permissible use in a zone . However, the consideration of a site ’ s suitability for the proposed development falls into the often-quoted finding that “… provided of course [that] the project results in acceptable environmental impacts ” : BGP at [11 8 ]. As submitted by Carinya, the QFRMSP has not, for the most part, been translated in to the LEP or DCP. Clause 5.21 of the LEP has been implemented, but there have been few other finalised amendments to the DCP and no proposed amendments to the LEP. On the evidence of Ms Coe, a draft amendment to the DCP was publicly exhibited between 18 December 2025 to 6 February 2026 and was anticipated to be considered by Council in March 2026. I note that at the time of the hearing, this had not yet occurred. In considering the submissions about multiple amendments to the LEP and confirmation that a medical centre has been reassessed each time, I find that the circumstances are different to those in Goldcoral . Goldcoral was in relation to a large residential subdivision which had been reinforced by strategic planning documents and the LEP and DCP. The proposition that a use for a medical centre on this small site ha d been reassessed as suitable was not in evidence. It is true that the strategic planning documents for the Queanbeyan CBD seek this type of use, as does the LEP and DCP. But other, relatively recently endorsed Council documents, such as the QF RMSP , have specifically considered the site. The QFRMSP is critical of the suitability of this site for commercial development due to the flood risks. The circumstances here are different to Goldcoral . The PMF is the worst possible flood that can occur and a very rare flood event. As set out previously at length, t he site itself is located within Inner Floodplain (Hazard Category 1), the highest category of risk. I accept that the QFRMSP has reasonable weight in these circumstances, being consideration of the risk to life from a flood event . In addition, the QFRMSP was adopt ed by Council at the 16 December 2020 ordinary meeting. Regarding the speculation about why amendments to the LEP or DCP have not been made, I agree that there has been adequate time for such changes to be made, but this does not necessarily undermine the consideration of the risks identified in the QFRMSP. I acknowledge that the assumptions by Carinya ’ s expert are based on many years of experience, but ultimately the views expressed in this instance about why controls have not been advanced are speculative . The current position is that Council resolved at the 16 December 2020 ordinary meeting that the proposed development controls at Appendix E Part E3 of the draft flood policy (in the QFRMSP) are to be considered in a revised DCP that applies to the flood planning area. There is no evidence before the Court that the Council resolution has been rescinded and therefore it stands as a resolution of Council to be action ed . I have considered that there was public consultation for the development of the QFRMSP prior to its adoption and that the flood certificate issued by Council alerted Carinya of the QFRMSP. Accordingly, I have considered the content of the QFRMSP and given weight to it as a matter of public interest. In relation to planning and development controls, the QFRMSP recommend s that Council adopt “ strong floodplain risk management ” . It says that “ the results of the FRMS also indicate that the commonly adopted freeboard of 500mm would not provide the necessary factor of safety to peak 1% AEP flood levels for residential development … in parts of the Queanbeyan CBD … The study recommended the adoption of a 1.2m freeboard for setting the MFL … in the B3-Commercial Core (pp 53-54 ) ” . In relation to the draft flood policy, the QFRMSP (p 54) states that: “Figure E1.1 in the draft Flood Policy is an extract from the Flood Planning Map relating to the urbanised parts of Queanbeyan which are located on the floodplains of the Queanbeyan and Molonglo Rivers. The extent of the Flood Planning Area (FPA) (the area that lies below the Flood Planning Level (FPL) and is subject to flood related development controls) is shown in a solid red colour and has been defined as land which lies at or below the 1% AEP plus 0.5 m freeboard. (emphasis added) It is proposed that properties intersected by the extent of the FPA would be subject to S 10.7 flood affectation notification and planning controls graded according to flood hazard (dependent on depth of inundation and flow velocity). Annexure 2 in the draft Flood Policy sets out the graded set of flood related planning controls which have been developed for areas within Queanbeyan that are subject to flooding from the Queanbeyan and Molonglo Rivers. MFL [minimum floor level] requirements would be imposed on future development in properties that are identified as lying either partially or wholly within the extent of the FPA shown on the Flood Planning Map. The MFLs for all land use types affected by flooding from the Queanbeyan and Molonglo Rivers is the level of the 1% AEP flood event plus 0.5 m freeboard, with the exception of development located on land zoned B3-Commerical Core in the Queanbeyan CBD, where the MFL of residential and commercial development is the 1% AEP flood levels plus 1.2 m and the 5% AEP flood level, respectively .” (emphasis added) The subject site is located on land to which was previously zoned B3 Commercial Core. The Q FRMSP details that the “ flood levels in the Queanbeyan River at Queanbeyan generally rise at a maximum rate of between 0.5 m -0.8m per hour, but could rise at a rate of up to 4.5m/hour during an extreme flood ” . In relation to the type of flood hazard affecting the site, the QFRMSP states: “ Figure E1.2 in Appendix E is the Flood Hazard Map for Queanbeyan which shows the subdivision of the floodplain into a number of categories which have been used as the basis for developing the graded set of planning controls. The floodplain has been divided into the following six categories in areas that are affected by mainstream flooding: Inner Floodplain (Hazard Category 1), which is shown in solid red colour. This zone comprises areas where factors such as the depth and velocity of flow, time of rise, isolation on Low Flood Islands and evacuation problems mean that the land is unsuitable for some types of development. It includes areas of High and Low Hazard Floodway, Flood Storage and Flood Fringe areas. Erection of buildings and carrying out of work; use of land, subdivision of land and demolition subject to State Environmental Planning Policies and Local Environmental Plan provisions are considered to be unsuitable in this zone ….” (p 40). The site ’ s location within the Inner Floodplain (Hazard Category 1) is the only floodplain where development is discouraged. The QFRMSP states that 2A and 2B (shown in green and orange) can allow development that do es not impede the free discharge of major overland flow (p 40). 2C areas comprise high hazard flood storage areas, whether replacement residential development may be permitted (shown in yellow). The Inner Floodplains are extracted below from Volume 2 of the QFRMSP and the site is shown with a star : Regarding residential development in the same Hazard Category 1 Floodplain , the QFRMSP recommends removal of housing from these areas through voluntary purchase of residential properties. It says that the removal of housing is “ generally accepted as a cost-effective means of correcting previous decisions to build in such areas ” (p 43) . From that, it is clear that implementation of the QFRMSP would not sterilise development in the CBD, as the inner floodplain categories change in the CBD and most categories do not recommend development restrictions. In relation to the evidence and submissions about the reliability of the floodway location and modelling, it was ultimately accepted in the Flood JER that the characteri stics described by Mr Molino justify the categorisation. Disputes about discrepancies are on the basis of other sites , which are not relevant to this site . Further, Carinya has utilised the same modelling as the QFRMSP and had similar flood modelling results . I find that the extent of flooding , described flood characteristics and its categorisation is sufficiently accurate . With consideration of the QFRMSP and the proposed development , I accept Ms Novak ’ s submissions and Mr Molino ’ s evidence t h at the proposal unreasonabl y poses risks to life during the PMF flood event or combination PMF and local flood for those who would work at or visit the proposed development . I n considering the evidence and impacts during a PMF event, I have considered the use as a medical centre for out-patient only services provided by health care professionals. This would exclude any surgical or anaesthetic related procedures occurring on site as submitted by Carinya in accordance with the definition of the proposed use . As submitted by Council, use of a medical centre facilitates visitation by the broad population, usually when they are ill or needing treating or seeking health care . It should be anticipated that visitors of the medical centre would likely be vulnerable physically or mentally ( temporarily or permanently) , elderly or incapacitated . Further, health practitioners and staff should not be assumed to all be able - bodied. The FIS/FERP makes somewhat makes references to people with disabilities, however I find that it does not make any other reference to the vulnerability of people that would be anticipated to visit a medical centre and incorporated that into the consideration of the evacuation times . I accept that the FERP/FIS has adequately modelled and considered the range of flood events as reasonably possible. As part of this, t he FIS/FERP provides that during the worst case scenario PMF event, there is one hour to evacuate the site. I accept Mr Molino ’ s evidence that the shelter in place arrangements are inadequate for any flood event above the 1% AEP flood event . The guidelines relied on by Mr Molino refer to the PMF flood level as guidance for a minimum floor level to shelter in place, which the proposal does not meet . T here are a number of flood events that the proposed floor level (at the current flood planning level) would be inundated with by water and the building could not be relied on for shelter in place . Notwithstanding, it is only the PMF flood event where there is a short period of time to evacuate. The FIS/FERP and the evidence recognises that in the event of a rare combined local and riverine flood event , the proposal relies on shelter in place for this stated rare event. The other flood events allow for more time to evacuate . I accept Mr Molino ’ s evidence that the one hour evacuation timeframe is incorrectly estimated . Based on the SES ’ s warning acceptance factor timeframes relied on by Mr Molino , I accept the evidence that there is a period of time from one of the trigger notification s of approximately one hour whilst staff confirm if the warning applies to them before they begin to evacuate and shut the centre. This means the time increases to up to two hours, where the FIS/FERP says it would be too late to evacuate. This aspect is a risk to life, as occupants in a larger event would not be on a floor high enough out of the flood waters for the PMF flood event. With consideration that the site becomes isolated for a flood at or higher than the 5% AEP event (which has occurred seven times since 1891, including in 2010), the development could not accommodate shelter in place . Again, it is noted that most flood events except the PMF allow for more time to evacuate the site . Carinya ’ s case is that the one hour evacuation time for the PMF event is based on a failure of the rainfall trigger system. If this trigger is complied with, the medical centre would be shut and there would not be anyone on site to evacuate. In relation to the alarm triggers, I first ly accept Mr Barthelmess ’ evidence that the triggers would be sufficiently accurate to rely on and are relied on by Council and the SES . However, I accept Ms Novak ’ s submissions and Mr Molino ’ s evidence that the 50mm rainfall 24 hour forecast trigger and the flood watch alerts would cause alarm fatigue. The FIS/FERP acknowledges that “ [if] the trigger for action is too low (or too early) then this also threatens effective evacuation as occupants ’ belief in the warnings will become sceptical and when they do need to evacuate, they may not take the necessary action ” (p 9). There was competing evidence on the frequency of rainfall , with Mr Barthelmess ’ oral evidence being that rainfall over 50mm in 24 hours has only occurred three times in the last ten years at the nearest BoM instrument at Canberra Airport. Mr Molino ’ s evidence , also supported by graphed dat a from the BoM in the Flood JER , was that there was a 63.4% chance of a 50mm rainfall spread over 24 hours occurring in any year. There was no explanation from the experts on the discrepancy between the dat a . I prefer Mr Molino ’ s evidence , as his evidence included a citation to the data he relied on, albeit also lacking some details that would assist about the time period and location . Mr Barthelmess did not support his evidence on this matter with supporting data, though identified the location of the BoM receiver . I accept that on Mr Molino ’ s evidence, this frequency of likely false triggers from both the rainfall and flood watch warnings w ould likely lead to fatigue. Whilst it must be assumed a proponent will comply with the development consent and staff will be regularly trained as per the FIS/FERP and conditions of consent , the evidence shows a high degree of false triggers closing the medical centre throughout the year . It is therefore reasonably likely that staff or regular patients will become fatigued and risk ignoring the alarm. As the building is not suitable for shelter in place for flood events abo ve the 1% AEP , the proposed management of both the PMF event and any flood events above the 1% AEP that rely on shelter in place carries an unreasonable risk to life. As previously discussed, the visitors of a medical centre are likely to include a high proportion of sick, injured or elderly people due to the nature of the use . Foreseeable p roblematic situations that could arise for vulnerable visitors during a PMF event or event higher than a 1% AEP might include c arers , parents, partners or friends who have transported a n ill, physically impaired or elderly patient to the medical centre and left them to tend to their own matters. Most flood events, depending on when the alarm is executed, will have sufficient time for people to return except for the PMF event. A driver ’ s location and ability to return is beyond the capability of a FIS/ FERP and their return may increase the risk to life. In my view, the FIS/FERP does not sufficiently grapple with this in terms of risks of returning and the vulnerability of people likely to visit a medical centre. The PMF event , by its nature, increase s the distance to the evacuation point and reliance on people to walk up hill 300m . An abled bodied person , cyclist, parent with older children could likely easily make the distance. A medical centre will likely have a higher proportion of people who are not as able bodied, whether temporary or permanently. In circumstances where there is a limited time to evacuate, the calling of people into the highest hazard floodplain area , be it a taxi, uber or carer/friend/family to arrange transport from an unknown loca tion unreasonably increases the risk to life. This would draw more people into the floodway, increasing the risks. For a centre of 50, a minimum of three wheelchairs does not overcome this risk and is inadequate. To the extent that the consent for 7 Morisset St was relied on, I accept Ms Coe ’ s evidence that the medical centre is located within a different i nner f loodplain (being Category 2b) , where the QFRMSP does not seek to restrict commercial or residential development. This is different between many sites in the Queanbeyan CBD and floodplain , where th e subject site is located within the highest risk flood way . It is not necessarily suitable or reasonable to consider the rare, worst case scenario PMF flood event in all DA ’ s . In circumstances where the PMF event is so much higher and faster than the 1% AEP event, where the proposed development will facilitate visitors who are likely to be vulnerable into the highest hazard floodplain (even on the edge of the floodplain) , the proposed development causes a foreseeable risk to life . The low likelihood of risk does not overcome this. For these reasons, I find that the proposed development for a medical centre is not suitable for the site due to the PMF risks , shelter in place risks and location within an identified floodway (the Inner Floodplain Hazard Category 1). I find that the risks in the rare PMF flood event are not tolerable with consideration of the mix of vulnerable, injured or sick patients that would visit a medical centre. The FIS/ FERP has not been able to overcome the foreseeable risk to life, which will likely increase through climate change as predicated in the QFRMSP. For these reasons the proposed development , meritorious in many other ways, is also not in the public interest . Conclusion With consideration of the evidence and submissions, I find that t he proposed development has been unable to manage the risk to life during the PMF event. The site is unsuitable for such a development in the Inner Floodplain ( Hazard Category 1 ) and is not in the public interest. I therefore conclude that the DA is refused. Orders The Court orders that: The appeal is dismissed . Development application 2024/0488 for the demolition of an existing building, construction of a two-storey health service facility (medical centre) and associated tree removal and landscaping at 7 - 9 Carinya Street, Queanbeyan is refused. The exhibits are retained . S Porter Commissioner of the Court ********** Amendments 05 August 2026 - Counsel Representation amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2026