Coolah Holdings Pty Ltd v Eurobodalla Shire Council

[2011] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

Coolah Holdings Pty Ltd v Eurobodalla Shire Council [2011] NSWLEC 1076

Hearing dates:

19 January 2011

Decision date:

18 February 2011

Before:

Hussey C

Decision:

1. The appeal is allowed.

2. Development consent is granted to DA 3/10 for the demolition of an existing dwelling and erection of a new dual occupancy at 35 Karoo Crescent, Malua Bay in accordance with the conditions in Annexure A.

3. The exhibits be returned except 1, 3, 5, A, E and G.

Catchwords:

Development Application: Drainage impacts from dual occupancy development, water/sewer headworks charges.

Legislation Cited:

Environmental Planning and Assessment Act 1979 (EPA Act).
Eurobodalla Shire Council LEP 1999 (LEP)
Eurobodalla DCP 2004:Eurobodalla Residential Design Code
Local Government Act 1993 (LG Act).
Water Management Act 2000 (WM Act)
Water Supply Authorities Act 1987

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Fitch v Shoalhaven Shire Council [1988] 67 LGRA 165 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65

Texts Cited:

Stormwater Disposal - Urban Land Policy
Stormwater Policy

Category:

Principal judgment

Parties:

APPLICANT Coolah Holdings Pty Ltd RESPONDENT
Eurobodalla Shire Council

Representation:

APPLICANT
Mr A Bradbury (Solicitor) Williams Love & Nicol RESPONDENT
Mr P Jayne (Solicitor) Sparke Helmore

File Number(s):

10759 of 2010

Judgment

Background

1. This appeal is against council's refusal of a development application to demolish an existing dwelling and then construct a detached dual occupancy development comprising 2 x 2 - bedroom dwellings at 35 Karoo Crescent, Malua Bay.

1. The site has a 15.24m street frontage and a total area of 828 sq m. The site falls away from the street to the extent of approximately 6.4m.

1. For the appeal, the council is satisfied that the proposal is permissible in the zone and the design of the dwellings complies with council's controls to allow consent. The only issue raised by council concerns the impacts of drainage from the site discharging onto lower properties. However at the close of the hearing the applicant raised an objection to the draft condition 6 requiring contributions towards water and sewer services.

1. Two objections to the proposal were received and they have been considered.

1. The appeal commenced by way of a s34 Conference on -site. This s34 was adjourned to enable the applicant to review the detailed drainage options. On the resumption of the s34 conference no agreement was reached and it was terminated. The parties then consented to Hussey C determining the matter.

Planning controls

1. The primary control is the Eurobodalla Shire Council LEP 1999 (LEP), under which the site is in the Zone "2g - Residential - General" and the proposal is permissible with consent. Clause 7 contains the general objectives and the following were identified as relevant:

7(a) to encourage orderly and proper development within the area of Eurobodalla, and...

(e) to ensure that no development on any land is likely to jeopardise the future orderly and economic development of the land or of land in its vicinity, and ...

1. Detailed controls are contained in the Eurobodalla DCP 2004:Eurobodalla Residential Design Code , wherein the objective in cl 3.4.2 is to minimise flooding impacts created by new development and additional hardstand. The associated design principles require the utilisation of Water Sensitive Urban Design (WSUD) so as to keep the balance between infiltration and runoff from individual sites as close as possible to pre - development flows.

The evidence

1. Detailed evidence in the form of a joint report was presented by:

• Mr M MciIveen; Council's senior development & subdivision assessment engineer.
• Mr B Payne; Applicant's consulting engineer.

1. This evidence assessed the applicant's drainage proposal, which comprises:

• The regrading of the proposed access driveway to the upper Unit 1, together with culvert and shoulder swale regrading to restrict the ingress of road water onto the site.
• The provision of roof water detention tanks for Units 1 and 2 with connections to a swale at the rear of Unit 2.
• The maintenance of overland flow path along the eastern boundary to direct water into the rear swale.
• The construction of 126mm high dispersion swales, including weir to allow uniform distribution of flows, across the width of the site.
• The incorporation of an infiltration trench (approximately 600mm x 600mm) at the base of the swale.
• The alignment of the swale to be setback approximately 3m from the downstream property, No 45 Yugura Street .

1. Mr Mcilveen expressed concerns about the effectiveness of proposed swales and infiltration trench, preferring that the drainage be connected to a new pipeline to be discharged via a drainage easement through No "45" to connect with the road drainage system in Yugura Street. Consequently Mr Payne reviewed the following options:

·     Option 1;	Council preference of piping/easement to connect to road drainage.
·     Option 2;	To provide a charged drainage system to Karoo Crescent for Unit 1 to reduce downstream flows. However the experts agreed this option was unsuitable.
·     Option 3:	The aforementioned drainage (detention/swales) proposal.

1. Mr Payne's assessment of his preferred option 3 was undertaken in accordance with the provisions of Australian Rainfall & Runoff and considered both the 10 year (1:10) and 100 year (1:100) storm events. The comparative discharges (Q) are estimated to be:

Table 1:

Design storm	1:10	0.111111
Existing Q	29.3l/s	55.3l/s
Proposed Q (No detention)	34l/s	64.5l/s
Proposed Q (Detention, infiltration and dispersed weir flow).	24.8l/s	48.6l/s

1. Accordingly, Mr Payne says that as the proposed drainage detention system reduces downstream discharges as required by the controls, it is consistent with controls and merits consent. He says this methodology represents current practice for drainage assessment and best practice in terms of incorporating WSUD elements.

1. Insofar as Mr Mcilveen agrees that the overall methodology adopted by Mr Payne accords with current practice, he nevertheless does not support the proposal because he considers that there could be extraordinary storm events that would increase risk of flooding to the downstream (No 45) property.

1. In light of the disparate conclusions on the drainage options, Mr Mcilveen explained that Option 1 is required to satisfy the provisions of the Stormwater Disposal - Urban Land Policy (Policy), which may require the drainage from the new development to:

• Be directed to a pit in the rear NE corner of the site.
• The stormwater to then be conveyed via a new (150mm dia) pipe located within a 1m wide drainage easement to be acquired along the eastern boundary of No 45, to the existing swale in Yugura Street (approximately 99m).
• The construction of a junction pit at the swale to the enable this 150mm pipe to be extended a further 77m to the existing piped system near Garagarang Street.

1. When questioned on the orderly development objectives in the LEP, Mr Mcilveen agreed that a coordinated inter-allotment drainage system (IAD) would be preferable to individual drainage system as previously explained. This would facilitate drainage for neighbouring properties also seeking to develop in accordance with the LEP and DCP provisions. But council has no drainage strategy or s94CP to facilitate this type of orderly provision of infrastructure.

Conditions

1. As required, draft conditions were provided. They are agreed except for condition 5, 6 and 20. Condition 5 deals with the alternative drainage disposal systems and can be resolved on the basis of the evidence--.

1. Council's condition 6 requires pursuant to s64 of the LGA 1993, payments towards sewer and water headworks as follows:

WATER & SEWER HEADWORKS CHARGES

6.1 Pursuant to Section 64 of the Local Government Act 1993, the payment to Council of headworks charges are required to be paid to the council as follows:

Sewer Headworks $9,050.00

Water Headworks $10,400.00

6.2 The payments are to be received by the Council prior to the issue of the Construction Certificate.

6.3 The above contribution rates are applicable for a period of 3 months from the date of this notice.

1. However Mr Bradbury submits that this condition is inappropriate because:

1. The power to impose a condition of development consent derives from section 80A of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The only sources of power for the Council to impose a condition of development consent requiring the payment of a monetary contribution are, relevantly, sections 94 and 94A of the EP A Act: section 80A(1)(h) and Fitch v Shoalhaven Shire Council (1988) 67 LGRA 165).

3. There is no reference in section 80A to the imposition of conditions requiring the payment of headworks charges pursuant to section 64 of the Local Government Act 1993 (LG Act).

4. Monetary contributions can only be required under sections 94 and 94A towards the provision of 'public amenities' and 'public services' by planning authorities.

5. The expressions 'public amenities' and 'public services' are defined in section 93C of the EP A Act so as to expressly exclude water supply and sewerage services.

6. It is therefore not possible for conditions to be imposed on a development consent requiring the payment of monetary contributions under section 94 (or 94A) towards the cost of providing water supply or sewerage services.

7. A separate scheme applies to the provision of funding for water supply works.

Section 64 of the LG Act provides that Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 (WM Act) applies to a Council exercising functions under Division 2 of Part 3 of Chapter 6 of the LG Act in the same way as it applies to a water supply authority exercising functions under that Act.

8. The WM Act establishes a scheme whereby a developer may obtain a 'certificate of compliance' from a water supply authority for development carried out or proposed to be carried out within the water supply authority's area.

9. For Councils, the power to require a developer to provide a certificate of compliance derives from section 109J of the EPA Act. Sub-section 109J(1)(e) provides that a subdivision certificate must not be issued for a subdivision unless, in the case of subdivision that relates to land within a water supply authority's area of operations, the applicant has obtained a certificate of compliance from the water supply authority with respect to the subdivision of the land. This is the only situation in which the EPA Act requires consideration to be given as to whether or not a certificate of compliance under the WM Act has been obtained.

10. This means that the Council may require a developer to pay developer contributions for water supply works only in connection with the subdivision of land. As the subject application does not seek consent for the subdivision of land, there is no power to impose a condition requiring the payment...

11. The scheme for the payment of section 64 charges was explained in the note attached to section 64 of the LG Act when it was first introduced by the Environmental Planning & Assessment (Amendment) Act 1997. That note is as follows:

Note Division 2 of Part 3 of the Water Supply Authorities Act 1987 contains a scheme whereby works of water, sewerage and drainage required in connection with the development of land can be provided without ultimate cost to a water supply authority (in this case a Council).

Under the scheme, a developer is required to obtain a certificate of compliance from the Council before a plan of subdivision can be registered (emphasis added). In deciding whether to grant the certificate, the Council can do either or both of the following:

(a) it can require the developer to contribute to the value of existing works which benefit the developer's land,

(b) it can require the developer to pay the whole or part of the cost of constructing specified additional works.

The imposition of such a requirement is in addition to any requirement the Council may impose in granting a development consent.

12. The Water Supply Authorities Act 1987 was repealed and replaced by the WM Act in 2000. Apart from this, the note to Section 64 remains an accurate description of the scheme for the payment of developer contributions for water supply works.

1. In response, Mr Jayne agrees with the aforementioned points 1 - 8. But he then submits that developer charges are up - front charges that council can levy under s64 of the LGA to recover part of the infrastructure costs incurred in servicing new developments. This is on the basis that Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 allows council to exercise functions that apply to a water supply authority.

1. Mr Jayne relies to the provisions of clauses 305 and 306 of the Water Management Act 2000 and also clause 118 of the Water Management (Water Supply Authorities) Regulation 2004, whereby council has prepared a Development Servicing Plan for the levying of developer charges.

1. Accordingly, he submits that s80A(1) of the EPA Act empowers council to impose reasonable conditions, which:

(a) relate to a relevant matter that the consent authority is obliged to consider under s79C [s80A(1)(a)];

(b) require a contribution, to the consent authority towards the provision of public amenities and public services to meet development [s80A(1)(h).

1. In this case, council's submission is that the planning purpose would be to ensure the development is appropriately serviced for both water and sewerage, commensurate with council's obligations as the both the local government and water supply authority. Consequently, council can require a "certificate of compliance" for developments other than subdivisions. Therefore council submits that the condition could be more appropriately expressed as:

6 CERTIFICATE OF COMPLIANCE - WATER MNGT ACT 2000

Prior to the issue of a Construction Certificate the person with the benefit of this consent must apply to the council for a certificate of compliance under Division 5, Part 2 of Chapter 6 of the Water Management Act 2000.

1. Mr Bradbury's reply is that this proposed condition 6 is not a condition that can be lawfully imposed under the EP&A Act, particularly as there is no mention in s80A to conditions requiring headworks charges pursuant s64 of the LGA. Also, there is no reference in s80A to the imposition of conditions requiring an applicant to obtain a certificate of compliance under the WM Act .

1. Furthermore, from reference to the provisions of s 80A(1)(a), which deals with matters identified in s79C, Mr Bradbury's submission is that apart from submitting that the condition has a planning purpose, no indication is given as to which paragraph of s79C is relevant. Therefore the following conclusion of Craig J in the matter of Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 is relevant:

17 Properly analysed, it seems to me that s 80A(1)(a) requires two matters to be addressed. The first is whether the condition relates to a matter referred to in s 79C(1) and the second requires a determination as to whether such matter is relevant to the particular development for which development consent has been or is proposed to be granted. Whilst I eschew a 'fine-tooth-comb' approach to the reasons for decision of the commissioner (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291), I am unable to discern from those reasons that these questions have been addressed by reference to the subsection. Nowhere is the "matter referred to in s 79C(1) of relevance to the development" identified.

1. Following this authority, and in the absence of identification of the particular paragraph in s79C, then no assessment can be made as to whether is relevant to the proposed development.

Conclusions

1. Having considered the evidence, the submissions and undertaken a view, I note that the main merit contention raised by council concerns the suitability of the proposed drainage arrangements, otherwise the proposal merits conditional consent. In this regard, the parties agreed to a general decision-making process to consider the relative balance between the competing elements. My application of that process is as follows.

1. The first element involves the consideration of the relevant planning controls. In this case, the LEP permits this type of dual occupancy development with consent in the 2g Residential - General zone and no issues were raised regarding the merits of the building components. Accordingly the applicant refers to the matter of BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, where McClellan CJ considered the question of what weight should be given to the zoning of a site when considering an application for a development on it. At para 117, he said (omitting the case citations):

In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

1. On the basis of this authority, the applicant's expectation that a complying development should be approved is not unreasonable, particularly as the objectives of the Plan appear to be reasonably satisfied.

1. With regard to the primary issue of drainage, the relevant controls are contained within the DCP and Policy. In cl 3.4.2 of the DCP, the relevant objective is:

• To minimise flooding impacts created by new development and additional hardstand...

1. The associated design principles are to utilise WSUD to keep the balance between infiltration and runoff from individual sites as close as possible to pre-development flows. The WSUD is to incorporate permanent and temporary storage of stormwater on the urban allotment, reducing the peak flow and volume of water that leaves the site. It should also incorporate measures to improve water quality runoff. The design principles also provide:

"Techniques to reduce flow velocities and volumes can be achieved through the use of rainwater tanks, natural infiltration, surface storage and infiltration into aquifers".

1. From reference to the aforementioned Table 1, I am satisfied that the applicant's option 3 should reduce downstream discharges for a representative range of storms. I therefore accept Mr Payne's opinion that this satisfies the 3.4.2 objectives. Furthermore, it does so in a way, which incorporates the nominated WSUD techniques.

1. Insofar as Mr Mcilveen accepts the Table 1 results, he still does not support this option and relies on the following provisions of the Stormwater Policy to require Option 1 to prevail:

2 For Infill Development

For other than single residences, all infill development be required to discharge stormwater (over and above that captured for re-use) to or by way of an approved gravity drainage facility other than directly to a rubble drain. This may require the creation and piping of an interallotment stormwater drainage easement.

1. It seems to me that in the hierarchy of planning controls this policy would be given less weight than the DCP provisions. But in any case this policy allows reasonable discretion. The engineers agree that Option 3 represents a "gravity drainage facility". Whilst the policy refers to discharge via piping in an interallotment easement may be required, this is not mandatory.

1. Accordingly, I am satisfied to rely on the opinion of Mr Payne that the proposed Option 3 will reduce drainage discharges downstream and the proposed structure will more evenly distribute excessive flows over the weir, rather than the existing concentration of drainage towards the rear NW corner. Therefore the proposed drainage reasonably satisfies the controls, in my assessment.

1. Apart from this, I note that Mr Mcilveen's primary concern seemed to be the avoidance of flooding risk in the circumstances of downstream flooding due to some extraordinary storm event. His approach would effectively translate to 'no risk' at all being be tolerated. However, I do not consider the set of controls is that restrictive, instead the objective is to " minimise " flooding impacts, which Option 3 achieves. Therefore on this basis, it warrants conditional consent being granted.

1. With respect to the orderly development considerations, unfortunately there is no overall drainage strategy to coordinate future drainage required as a result of development in accordance with council's planning controls. Insofar as there was some speculation about an IAD system, there was no compelling evidence of council's commitment to such a scheme. In the circumstances then, I do not consider the piece - meal approach advocated by Mr Mcilveen, that individual developments each install their own disposal pipelines along various easements to Yugura Street represents economic and orderly development.

1. My finding on the disputed condition 6 is that it is appropriate in the circumstances of this case to follow authority set out in Cavasinni . Accordingly, it is apparent that s80A prescribes the circumstances for the imposition of conditions. I accept Mr Bradbury's submission that this section does not refer to s64 of the LGA.

1. As it is not possible to impose the subject contributions under the provisions of s94 of the EP&A Act, the only other avenue is via the s79C(1) route. But I do not consider that the council has adequately demonstrated which matter in s79C(1) that the condition relates to. The reference to 'a planning purpose to ensure the development is appropriately serviced for both water and sewerage' is not obvious in the s79C(1) matters for consideration.

1. Therefore, I rely on the submissions of Mr Bradbury that in this case, there does not appear to be power to impose condition 6 and therefore it is deleted. Insofar as reference was made to other developments where similar contribution conditions were imposed and accepted, the court was not informed of the circumstances of those matters and I do not consider them as any sort of precedent.

1. I consider condition 5 should be modified to allow the applicant's Option 3 but it should also require the imposition of a positive covenant to ensure the maintenance of the drainage weir and infiltration area. It seems to me that in the circumstances of this case, the provision of this internal drainage system is a fundamental part of the consent and all prospective property owners/occupiers should be made aware of their responsibility to maintain the system, which is located within the open space area for Unit 2. Ideally, some form of self-regulation is desirable whereby the owner/occupier periodically notifies council that all components of the drainage have been maintained in accordance with the approved design.

1. Insofar as the parties submitted alternative wording for condition 20, this condition deals with works to be carried out in the public road and therefore a Section 138 consent is required. I am aware the issue of such consent requires certain condition to be met and as there is no evidence to confirm this, I consider the council's alternative condition reasonable and appropriate.

1. For these reasons then, I am satisfied the development reasonably satisfies the relevant objectives and design controls to merit consent.

1. Having considered these findings, the parties have now agreed to additional conditions to address the outstanding matters to now allow the following orders to be made.

Court orders

1. The Court orders that:

1. The appeal is allowed.

2. Development consent is granted to DA 3/10 for the demolition of an existing dwelling and erection of a new dual occupancy at 35 Karoo Crescent, Malua Bay in accordance with the conditions in Annexure A.

3. The exhibits be returned except 1, 3, 5, A, E and G.

R Hussey

Commissioner of the Court

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Decision last updated: 06 April 2011