6C RAZ Pty Ltd v Frankston City Council

Two separate applicants each brought a case against the Frankston City Council, opposing the Council's decision not to grant construction projects. Both construction projects were intended to build several dwellings, each in different central accessways of Seaford. The cases were heard and determined together, although the proceedings remained separate. On September 19, 2024, Tribunal Member Christopher Harty decided to uphold the City Council's decisions, refusing to grant the proposals. The proposals were originally referred to Melbourne Water by the City Council because the proposed building sites are affected by the Special Building Overlay (SBO)—meaning that the sites are prone to overland flooding. Melbourne Water objected to both projects, citing unacceptable flood risks that would affect access and egress from the sites. More specifically, Melbourne Water explained that its decisions were based on the following findings: (i) Because the developements do not assist in the protection of life and property from overland flows, they do not uphold the objecitves of Floodplains of the Frankston Planning Scheme (the "Scheme") Clause 13.03-1S; (ii) The development is contrary to the decision guidelines Clause 65.01; (iii) The development does not suit Section 60 of the Planning and Environment Act 1987 due to the effects the environment may have on the development; and (iv) The development does not adequately address the objectives of Part 8 of the Guidelines for Development in Flood Affected Areas. On the other hand, the applicants argued that the proposals are consistent with the policy directions for housing in the Frankston Planning Scheme, based on the sites' proximity to the Frankston Metropolitan Activity Centre, where medium-density residential development has occurred, and because they deemed the risk to the development and future occupants as reasonable and acceptable. The Tribunal considered three separate issues before concluding that it would reject the applications. First of all, dwellings were found to be suitable for the site. Strategic policy and the established residential nature of the surrounding neighborhood supported the use of the sites for housing. Second, similarly, the plans were found to respect the neighborhood character. Third, however, the Member concluded that the risk associated with the flood is too great for the permit to be granted. He concluded that although the court must consider the inefficiency of leaving empty a site with a high housing demand, it is unreasonable to require occupants to be isolated in their houses for 10~12 hours during a flood. Moreover, the court acknowledged that it has an obligation, under the Planning Scheme, to consider the effect of climate change on floods, which only heightens the risks associated with them. In its conclusion, the Tribunal, while rejecting the applications, urged Melbourne Water, the City Council, and the State Government to urgently address the issue of inadequate stormwater drainage.