Conceal Pty Ltd v Wingecarribee Shire Council

[2005] NSWLEC 49

Land and Environment Court

of New South Wales

CITATION:

Conceal Pty Ltd v Wingecarribee Shire Council [2005] NSWLEC 49

PARTIES:

APPLICANT
Conceal Pty Ltd

RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

10533 of 2004

CORAM:

Hussey C

KEY ISSUES:

Subdivision :- Residential - access - drainage - fill - external works - public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act
Wingecarribee Local Environmental Plan 1989

DATES OF HEARING:

26 & 27/08/2004, 16/12/2004, 20/12/2004, 08/02/2004 and 11/02/2004

 
DATE OF JUDGMENT: 

03/11/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Hemmings, barrister
SOLICITORS
Low Doherty & Stratford

RESPONDENT
Mr B Bilinsky, solicitor
SOLICITORS
B Bilinsky & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

11 March 2005

10533 of 2004 Conceal Pty Ltd v
Wingecarribee Shire Council
JUDGMENT

1 This appeal is against council's refusal of a development application for a 13 lot residential subdivision at Bowral. Initially Council identified a number of issues but subsequent conferencing between the parties reduced the outstanding issues as follows:

• adequacy and safety of access,
• drainage/filling of the land,
• public interest.

The site

2 The site is described as Lot 24 DP 713573, Loftus Street and Meryla Road, Bowral. It has a total area of 1.364 ha. The site is irregular in shape and is connected to Loftus Street and Meryla Road as shown in Attachment 1.

3 It is vacant and contains a watercourse, which runs generally in an east-west direction. The land falls from east to west and the watercourse continues into the adjoining public reserve land owned by council, which ultimately discharges through an existing railway culvert.

4 Adjoining the site to the north is 4(a) Industrial zoned land containing a variety of light industrial type developments. To the east are detached dwelling houses. Adjacent to the south/south west of the site is a 9(b) proposed local road, which adjoins an area of detached dwellings.

The proposal

5 This development is for a subdivision of the existing allotment into 13 residential lots. It also includes associated earthworks involving excavation and filling to minimise flooding impacts, together with stormwater construction and roadworks. The proposed lots vary in size from 706 sq m (Lot 10), to 1577 sq m (Lot 13).

6 The access roadworks involve the extension of Meryla Road to form a cul-de-sac before reaching Loftus Street. The associated drainage works involve filling the land (up to 2 m) above the designated 100 ARI flood level and provision of swales around the new lots to protect them and also the adjoining residential properties, from flooding.

7 On the northern side, it is proposed to construct Swale No. 5, with concrete base to intercept flows from the upper catchment, which discharge through Loftus Street. This then flows into council’s downstream public reserve area, where it is proposed to construct a wetlands basin – refer Attachment 2.

8 On the southern side of the property, drainage currently discharges onto the site from existing culverts under Moss Vale Road. It is proposed to collect and divert this drainage into an open channel, which generally follows the proposed Road Reserve alignment and ultimately discharges into the proposed wetlands. This Road Reserve is designated for the future diversion of Moss Vale Road around the town centre.

9 As the proposal involves stormwater discharges onto the existing public reserve land, and necessitates some earthworks on this adjoining land, council’s consent as owner is required. In the absence of the owners consent, the Court has exercised its discretion under s 39 of the Land and Environment Court Act for the owners’ consent to be issued, to allow the merits of development application to be assessed.

10 Under this LEP, the site is zoned residential 2(a) and a subdivision is development that is permissible with consent. The objectives for this residential zone are as follows:

(a) to maintain, and provide for, areas with a low-density residential character;

(b) to ensure that any development will not have any adverse effect on the landscape or scenic quality of the area or the amenity enjoyed by residents located within the area;

(c) to specify, by means of a development control plan, minimum allotment sizes for specific areas within the zone; and

(d) …

11 Other relevant sections of the LEP include:

• Clause 34, which deals with potentially flood affected land and includes various assessment criteria.
• Clause 36, which requires satisfactory arrangements to be made for the provision of services.
• Clause 51, which identifies assessment criteria associated with landfills.

12 This DCP contains the various standards for residential zones, with the site being within the boundaries of Map 6B, where the minimum lot size of 700 sq m is prescribed. Clause 5.1.4 deals with standards for allotment shape and frontage, on a merits -- based assessment.

Development Control Plan No. 34 This DCP is councils Flood Risk Management Plan and contains some details relevant to floodplain management. However, no specific Flood Plain Management Plan was presented.

Development Control Plan No. 41

13 Detailed evidence on behalf of council was presented by:

• Mr P Malloy, town planner with the Wingecarribee Shire Council,
• Mr M Beasley, director technical services with Wingecarribee Shire Council
• Mr D Bewsher, consulting engineer, Exhibits 2 and 20,
• Dr K Guymer, natural resource officer of DIPNR,
• Mr P Nunn, senior development engineer, Exhibit 3.

14 The oral evidence and written submissions from objectors, contained in Exhibit 12 have been considered.

15 For the applicant, detailed evidence was presented by:

• Mr A Smith, consulting town planner (Exhibit B),
• Dr S Ambrose, consulting ecologist (Exhibit C),
• Mr J Coady, traffic consultant (Exhibit D),
• Mr T Fiander, consulting engineer (Exhibit E),
• Dr S Perrene, consulting engineer (Exhibit F),

• Mr G Ryan, consulting engineer (Exhibit G).

Discussion of the evidence

16 According to the submissions presented to the Court, council’s fundamental opposition to the subdivision is because it represents an overdevelopment of the site, which is compounded by its liability to flooding. Mr Bilinsky’s submission is that a subdivision of reduced density, preferably with its main access from the extension of Loftus Street would probably be more acceptable, in the context of this sites constraints.

17 The evidence shows that there are significant environmental constraints on this site and the applicant has endeavoured to address these in a responsive manner. The threshold issue is the flooding liability of the land, due to its location at the lower end of the catchment, which results in it receiving considerable overland flows in storm events.

18 These overland flows are directed into the existing watercourse/drainage channel that follows a depression through the property and includes stormwater from culverts under Moss Vale Road and also overland flows from the adjoining industrial land, which discharges from Loftus Street. In larger storm events, part of the land is subject to inundation in conjunction with the adjoining council owned land because its outlet is restricted by the existing culvert, under the railway line.

19 In response to this threshold issue, a number of contributing elements were identified, including the status of the watercourse/drainage channel. Dr Guymer initially expressed the opinion that the drainage channel was “a river”, as defined by the Rivers and Foreshores Improvement Act 1948, because the channel had a defined bed and banks and flowed water intermittently. Following conferencing between the environmental and engineering experts, agreement was reached that a reconstructed channel could be moved from its present location, although there was disagreement whether the new location should necessarily be in the low point.

20 However, there was further agreement that the drainage line through this site would be classified as a " Category 3" riparian land as defined in "Managing Urban Stormwater Soils and Construction", published by Landcom, in March 2004. Accordingly, the main objectives for this category of land is to protect bed and bank stability and water quality. Insofar as there were some early discussions regarding the appropriateness of piping of low flows, this component was subsequently amended so that all overland flows would be intercepted in the various swales. In my assessment of this element, it would be appropriate in any consent, to impose the draft conditions from DIPNR that require certain conditions to be met, to enable issue of a Part 3A certificate.

21 Apart from this, the hydrological engineers undertook further modelling to assess the magnitude of various contributing inflow elements of the drainage system. From this they agree that the flows from Moss Vale Road can be diverted into the future Road Reserve and contained within an open, trapezoidal channel that has a variable depth, to a maximum of approximately 3.5 m – see Attachment 2 diagram.

22 This channel then follows a variable horizontal alignment within the Road Reserve to ultimately discharge into the council’s public reserve land.

23 In regard to this element, I accept the joint engineers’ conclusion that the trapezoidal channel can be constructed to a size capable of carrying this diverted water and also having a base and side walls armoured to minimise erosion and scouring. However in my opinion, this represents a substantial amount of external construction on the council’s Road Reserve, that also includes removal of some mature trees, causing significant environmental impacts.

24 But the engineers indicate that this proposed drainage diversion works would be of an “interim” nature because:

"if a major road was to be built along the road reserve in the future, a significant portion of the flows would need to be provided in underground pipes and culverts".

25 The council objects to this work being undertaken now and subsequently needing to be reconstructed on the basis that:

"the use of the Council road reserve, to the west of Lot 24 DP 713573 as a stormwater channel is estimated to increase future road construction costs by approximately $2.4 million. This is of concern to council, as is the additional maintenance costs which will be borne by Council (as owner) as a result of stormwater channel."

26 In my assessment of this element, I am satisfied that these drainage diversion works into the Road Reserve are of an interim nature only, which will ultimately need to be reconstructed by way of pipes and culverts, if and when the proposed Ring Road is constructed in the future. The variable horizontal alignment of the proposed channel, within the Road Reserve will necessitate its removal and additional filling and compaction to accommodate to the future underground pipes, culverts, that would be required to allow this new road to be constructed.

27 Consequently these substantial "interim" drainage works, may be in place for a considerable time, due to the lack of any council program for the diversion roadworks and drainage works. This will result in considerable change to the relatively undisturbed natural character of this immediate area, which I do not consider enhances the area. Instead, my opinion is that this construction element comprising a relatively wide and deep open drainage channel will create an adverse affect on the landscape and scenic quality of the area and depreciates the visual amenity enjoyed by the residents within the area. Therefore it does not satisfy the zone objective (b).

28 Apart from this open channel, other significant drainage works are required with the construction of Swale 5 to intercept and divert the significant over land flows from Loftus Street. These works comprise a concrete based channel approximately 5 m wide, together with a variable height (2 m maximum) masonry wall adjacent to Lots 5-7, to retain the fill on these lots so they can be raised above the designated design flood level. In addition to this, the engineers agree that this would require appropriate fencing on both sides to provide reasonable public safety, considering the velocity and depth of the drainage waters. This fencing is also required to be extended around the outlet structure where the stormwater enters council’s public reserve/proposed wetlands area.

29 In the context of the surrounding development, which appears to me to respond to the existing landscape by minimising filling and retaining walls, I consider that the introduction of significant filling (up to 2 m deep) and associated retaining structures does not reasonably satisfy the zone objective (b), because they have an adverse impact on the scenic quality of the area.

30 Another substantive issue raised concerns the most appropriate access to the subdivision. Insofar as council prefers the access to be achieved from the extension of Loftus Street, this is on the basis of improved traffic movements within the adjoining industrial area, more effective access to Moss Vale Road at the existing light-controlled intersection with Alcorn Street and a reduction in disamenity for the existing residents adjacent to Meryla Road.

31 However, this issue was addressed by Mr Coady (traffic consultant) and Mr Malloy (town planner). Mr Malloy considers the access should be from Loftus Street, to avoid adverse amenity impacts upon the existing Meryla Road residential properties and those at 519 and 521 Moss Vale Road. He considers this increased disamenity (such as noise disruption, headlights) is undesirable when an alternative access is available via Loftus Street.

32 Against this, Mr Coady does not consider the proposed access will have an unacceptable impact on the residential dwellings adjoining it because:

· the proposed 13 lot subdivision has a weekday traffic generation potential in the order of 12-13 vehicle trips per hour. This level of traffic activity is not significant in the context of levels of traffic activity normally considered to be environmentally acceptable, as set out in Table 4.6 of the RTA Guidelines as follows:

Road Type Maximum Speed Maximum Peak Volume

• The properties fronting Moss Vale Road would be subject to much greater impact from traffic activity on Moss Vale Road (1300-1400 vpd during peak periods), than the relatively minor level of traffic activity that would occur on Meryla Road.
• Meryla Road is a dedicated public road, which is understood to have been in existence for some considerable time. That public road function should not be subjugated because of a relatively new minor environmental effect on two frontage properties.

33 In reconciling these competing positions, I rely on Mr Coady’s traffic expertise and conclusion that the traffic generation for the proposed 13 lots, via Meryla Road is relatively minor and compatible with accepted environmental road capacity limits, subject to some minor intersection modifications at Moss Vale Road. Therefore I consider this aspect of the traffic issue is acceptable.

34 I also note that it is a common practice in new developments to endeavour to separate industrial and residential traffic, including pedestrian movements. It seems to me that while the council's preferred option may improve some movements for the industrial traffic, which likely includes additional industrial vehicle movements into the cul-de-sac, this would probably reduce the environmental amenity and safety of the residents in the new residential lots, which I consider undesirable in the subject context.

35 In summary, I rely on the evidence of Mr Coady that the proposal does not generate significant traffic movements and that those generated can be reasonably controlled by way of extension of Merlya Road, resulting in acceptable levels of environmental road capacity and amenity for the adjoining neighbours. I do not consider it reasonable to reject the application on grounds of inadequate access.

Conclusions

36 In my assessment the evidence, the various aspects of the drainage concerns confirm this as the threshold issue. This situation occurs because of the lands location and topography at the lower end of the catchment, whereby the natural depression through the site is required to collect and convey significant drainage flows from the upper catchment, into council’s downstream reserve lands.

37 Consequently for the proposed new lots to achieve reasonable residential amenity, excavation for the diversion swales around the site, together with significant filling up to 2 m is required to provide a reasonable freeboard above the designated 100 ARI stormed event. But the evidence before the Court, including council objections to the proposed drainage works, indicates to me that the following provisions of cl 51 of the LEP are not reasonably satisfied at this stage:

(1) …
(2) Development for the purposes of landfill on land to which this plan applies shall not be carried out except with the consent of the council.
(3) The council shall not grant consent as required by subcl (2) unless it is satisfied that:
(a) the disposal of fill material will in no way alter the flow of natural watercourses and identified flood levels within the area of Wingecarribee;
(b) the disposal of fill material will have no adverse impact on any adjoining and adjacent properties.
(c) …

38 Notwithstanding this, in my assessment, three other significant merit hurdles arise which comprise the necessity for property owners’ consent to carry out the works on adjoining property, the permanency of the work and resultant environmental impact of the proposed earthworks.

39 The works required on the adjoining properties include an open diversion drain along the proposed Road Reserve, which flows into the existing public reserve land adjacent to the railway line, where the applicant proposes outlet works from Swale 5 and the construction of wetlands. But the council has not given its owner’s consent to carry out of these works on its land. Insofar as submissions have been made that the Court can exercise this discretion under s 39 of the Land and Environment Court Act, I consider that such discretion would be subject to the extent and nature of the works, strategy considerations, safety/environmental impacts and maintenance considerations.

40 In this case, I consider the extent of the works relatively major in the context of the 13 lot subdivision, because extensive earthworks are required to construct the open diversion channel and wetlands, for which council has no adopted strategy at this time. If the required drainage works involved relatively minor tail-out works, this may be acceptable. But on my understanding of the nature and extent of the proposed works, it is appropriate in this case that the council initially has the opportunity to determine the options for what substantive works are carried out on lands under its control.

41 Associated with this, is the consideration of future strategies affecting the subject and adjoining lands. Unfortunately for the applicant, it appears that council has no effective strategies at this stage, for the diversion of the substantial external upper catchment flows across this land, or for part use of the subject land for drainage purposes. Although the details contained in exhibit 36, indicating that significant drainage works may be carried out along the alignment of the watercourse, confirm the overall uncertainty of the drainage issue.

42 Notwithstanding this, I note the evidence that Mr Bewsher has been undertaking further drainage investigation work in this catchment and accordingly I consider it premature and not in the public interest to allow the proposed substantial drainage works to proceed forthwith. Furthermore, I note council’s submissions that an additional $2.4 million may be required to restore the drainage works in the Road Reserve in the future and I consider that this is a significant negative aspect of the public interest considerations relative to the private interest considerations in proceeding with 13 lot subdivision.

43 The substantial earthworks will result in significant changes to the existing natural topography of this and the surrounding land. The diversion Swale 5 requires fencing enclosure to restrict personal entry due to the unsafe velocity and depth factors, partly associated with the concrete base and retaining walls. In my opinion, this likely introduces a significantly higher level of public risk than currently exists and is undesirable, at least until other more environmentally sensitive and safer options have been considered.

44 I have also considered council submissions regarding the additional maintenance costs for the wetlands and the open channel. I accept the submissions that additional maintenance will be required and in the absence of any reasonable maintenance options, I consider it unreasonable to impose these on the community, in the absence of adequate community consultation regarding the use of public lands. For these reasons, I would not exercise any discretion to allow the external drainage works to be undertaken.

45 Aside from the owner’s consent question, there are still other significant merit issues, in my assessment. As I have stated, it is unfortunate that there are no strategic (drainage) plans for this area, which could indicate how the proposed road and drainage works could integrate into the ultimate drainage plan. Instead it appears that the diversion drain along the Road Reserve will require complete replacement, incurring additional costs in the order of $2.4 million, if and when the this diversion road is constructed.

46 In my opinion, the inability to demonstrate that the proposed drainage works, including the wetlands, are of a relatively permanent nature, is a negative aspect of public interest considerations in this proposed development, despite Mr Hemmings’ submissions regarding the positive public benefits of having the drainage improvement works constructed in the foreseeable future.

47 On the basis that the proposed interim diversion drainage works are not accepted by council as being of permanent nature, but nevertheless the substantive filling to enable new houses to be erected will be permanent, significant environmental impacts result. In particular there will be significant visual impacts with the raised "residential island/moat appearance" and the open channel along the Road Reserve, which will contrast markedly to the existing natural topography. In my opinion this will have an adverse affect on the landscape and scenic quality of the area, which is currently enjoyed by residents and accordingly is not consistent with the objectives for the Residential 2(a) zone.

48 This conclusion is consistent with the general evidence presented by the objectors who expressed concern about the intensity of the proposed development and the associated earthworks, which they did not consider consistent with the character or amenity of this neighbourhood area.

49 In the ultimate then, I am satisfied that this 13 lot subdivision represents an over-development of the site, particularly because of the magnitude of external drainage works required to render the new lots relatively flood-free. The evidence presented to the Court confirms the significant constraints on the site due to its location and partial low-lying nature, which results in its current use as the watercourse for a significant upper catchment area.

50 Furthermore, as I have stated it seems unfortunate for the applicant that the strategic drainage planning has not been undertaken by the council. But it is also a concern that at the end of the hearing, Exhibit 36 was tendered which indicates an option for the use of the watercourse on the subject property as part of the ultimate drainage system. It seems to me that the relative private and public interests considerations on this option should be pursued, prior to the grant of consent for this subdivision.

51 Under these circumstances, I am satisfied that this proposal is premature and does not represent economic or orderly development of the land, considering the extent of external drainage works, the significant future reinstatement works and ongoing maintenance requirement which I consider results in non-compliance with the zone objectives and relevant provisions of cl 51 of the LEP. Until the drainage issue is satisfactorily resolved, then the optimal development of the site in accordance with its Residential 2(a) zone may not be achievable.

1 The appeal is dismissed.

2 Development consent for a 13 lot subdivision at Lot 24 DP 713573 Loftus Street and Meryla Road, Bowral, is refused.

3 The exhibits may be returned except for Exhibits 7, 31, 35, 36, A and L.

__________________
R Hussey
Commissioner of the Court
Rjs/ljr