Alpall Pty Ltd v Blue Mountains City Council

[2006] NSWLEC 336

Land and Environment Court

of New South Wales

CITATION:

Alpall Pty Ltd v Blue Mountains City Council [2006] NSWLEC 336

PARTIES:

APPLICANT
Alpall Pty Ltd

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

11570 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Strata subdivision, drainage, public interest

LEGISLATION CITED:

Blue Mountains Local Environmental Plan 2005
Local Environmental Plan 4
Better Living Development Control Plan

DATES OF HEARING:

15/06/2006

 
DATE OF JUDGMENT: 

06/22/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M White, barrister

RESPONDENT
Mr T Houston, solicitor
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

22 June 2006

11570 of 2005 Alpall Pty Ltd v Blue Mountains City Council

JUDGMENT

Background

1 This appeal was lodged against council deemed refusal of a development application for the strata subdivision of a recently completed SEPP 5 development (comprising 12 dwellings) situated at 230-234 Great Western Highway, Wentworth Falls. The details of the area and planning controls are contained in the Statement of Basic Facts (SBF), on which I rely.

The site

2 This site is described as Lot 1 in DP 1071412 and it has a total area of 5331 sq m. The land has a moderate slope, which runs from the northern (front) boundary towards the centre of the site and then the land rises moderately to the southern (rear) boundary. A natural watercourse with overland flow path, which is covered by a drainage easement 1.4 m wide, traverses the property towards the western boundary.

Planning controls

3 According to the SBF, a number of controls apply including the following:

• Blue Mountains Local Environmental Plan 2005: As LEP 2005 commencement 7 October 2005, the Savings and Transitional provisions applying, so that it is treated as a draft LEP. The proposal is permissible on this basis,
• Local Environmental Plan 4: Under which the site is in the Residential 2(a1) zone and the proposal is permissible with council consent,

• Better Living Development Control Plan: This DCP was adopted by council on 8 March 2005 and contains relevant provisions dealing with subdivision/stormwater.

4 Insofar as the construction of this development has been recently completed and involved some access and drainage works, the Occupation Certificate has been issued. However, council contends that there is outstanding drainage works that are required to provide satisfactory drainage through the site, particularly to control the overland flows, to minimise flooding risks to persons and property. Accordingly council considers these works should be completed prior to the grant of any strata approval, so that the public interest considerations are properly addressed.

5 The principal issue concerns the drainage overland flow through the property, together with a number of secondary construction issues. In regard to the principal issues, the parties agreed to Dr G. O’Loughlin being the Court- appointed expert (CAE) to address the drainage issue. Accordingly he prepared 3 reports after consultation with the parties.

6 Dr O’Loughlin found some inadequacies in the existing drainage system, which he considered would reduce the usually accepted safety factors/risks for clearance in flood situations. These inadequacies were identified on the drainage concept plan (Exhibit 7) and the applicant indicated is preparedness to undertaken reasonable drainage works, on the basis of a condition of consent.

7 Further conferencing between the parties resulted in general agreements on the extent of the remedial work, together with the specification for such work as recommended by Dr O’Loughlin. The conferencing also involved a review of the extent of the nominated secondary works, which was substantially reduced to an agreed position.

8 The conferencing resulted in agreement by the parties to the remediation works, which are as specified by Dr O’Loughlin.

Conclusions

9 Having considered the evidence, the submissions and undertaken a site inspection, I am satisfied this application for the strata subdivision merits conditional consent. In this regard, the strata subdivision is for the recently completed SEPP 5 development, which has been granted an Occupation Certificate, so that the subject development substantially involves a change in the titling and management of this development.

10 No substantive evidence was presented to the Court that this application should not be approved, providing the drainage issue is resolved, so that units 5 and 8 are not exposed to excessive risk in major flooding events.

11 As I have noted, this flooding issue has been dealt with by Dr O’Loughlin, who says that providing the remedial work is satisfactorily completed, then the drainage would be brought to an acceptable standard, which represents current best practice. Notwithstanding this, some overland flow will be experienced in major storm events, however the risks to persons and property are within acceptable limits.

12 The subsequently agreed drainage conditions are performance-based and required some further drainage modelling to be undertaken, so that the detailed remedial work could be finally specified and approved by council. In this regard, the parties also agreed that this detailed remedial work is to be subject to Dr O’Loughlin’s approval and the final conditions of consent reflect this. Dr O’Loughlin has indicated his approval of the works shown on the plan at Exhibit 10 and on the basis of the acceptance of these agreed conditions by the parties, I make the following orders.

Court orders
1. The appeal is upheld.
2. Development consent is granted to development application S05/0020 for a 12 Lot strata subdivision of the development at 230 – 234 Great Western Highway, Wentworth Falls, subject to the conditions in Annexure A.
3. Exhibits may be returned except 3, 4, 5, 6, 7, 8, 9, 10, A, and C.

___________________
R Hussey
Commissioner of the Court
Rjs/ljr