David v Hornsby Shire Council

[2017] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:

David v Hornsby Shire Council [2017] NSWLEC 1025

Hearing dates:

16 December 2016

Date of orders:

27 January 2017

Decision date:

27 January 2017

Jurisdiction:

Class 1

Before:

Hussey AC

Decision:

The Court orders that:
(1)   The appeal is dismissed
(2)   Development consent to DA/1130/2014 for the subdivision of Lot 4 (No 8A) Edwards Road, Hornsby into two lots is refused.
(3)   The exhibits may be returned except for 1, 4, 5, 7, A, B and C.

Catchwords:

Development application; 2 lot residential subdivision, discharge of drainage, suitable discharge point, natural watercourse.

Legislation Cited:

EP&A Act 1979

 

Hornsby Development Control Plan 2013

 

Hornsby Local Environmental Plan 2013 ("HLEP 2013"); under which the site is within the R2 (Low Density Residential) Zone

 

Hornsby Shire Council Section 94 Development Contributions Plan 2014.

  Sydney Regional Environmental Plan 20 - Hawkesbury River Catchment

Cases Cited:

Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382

 

Gartner v Kidman [1962] HCA 27; 108 CLR

Knezovic v Shire of Swan-Guildford [1968] HCA 38

Category:

Principal judgment

Parties:

Paul David (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
Ms J Reid (Applicant)

  Solicitors:
Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)

File Number(s):

2016/00155970

Judgment

Background

1. This matter concerns an appeal against Council’s refusal of a development application proposing a 2 lot residential subdivision at 8A Edwards Road, Wahroonga. The proposed lots are:

• Lot 1;      500 sqm (excluding access handle)

• Lot 2;      553 sqm (excluding access handle).

2. The application was refused for a number of reasons primarily concerning the adequacy of the drainage management and discharge arrangements. These concerns relate to whether there is a satisfactory point of discharge, the legal status of the downstream area in terms whether or not this area is classified as a natural watercourse or whether a drainage easement is required over the downstream properties.

The site

3. The site is known as Lot 4 DP 224106, 8A Edwards Road, Wahroonga. It is a battle-axe shaped lot utilising a shared accessway and has an area of 1,233m7 (including access handle) and contains a dwelling house.

4. The shared access handle leading from Edwards Road to the subject site is approximately 45m long. Lots 3, 4 and 6 (10A, 8A and 10 Edwards Road) have battleaxe handles (3.05m, 3.05m and 3.66m wide respectively) providing access to Edwards Road and making up a right of carriageway. Legal access to the site is via rights of way which exist over the battleaxe handles of 10A, 8A and 10 Edwards Road.

2.4   The subject site has a gentle slope towards the centre of the site, with the lowest point being towards the rear boundary of 8 Edwards Road which is in front of the subject site. There are a number of trees on the site including exotic, native and local species. Towards the rear of the site there is a two storey brick home with a double garage.

5. There is no registered drainage easement on the site. However the following covenants apply:

1. "No fence or obstruction shall be erected along the boundary line between the said lots 4 and 6 of the said rights of carriage way (but only for the distance of 150 feet from the alignment of Edwards Road), and ... no shrubs or ornamental trees shall be damaged or removed from the said rights of carriage way.", and

2. "No fence shall be erected on any other boundary line between the said land and any adjoining land in the said Deposited Plan No. 224106 of a height of more than three (3) feet."

6. The site is not identified as bushfire or flood prone on the Council's mapping system. It adjoins low density residential developments along its north, south, east and west boundaries. This locality generally comprises large single dwelling houses, many of which are of brick and tile construction. The suburb is characterised by tree-lined streets and traditional architectural styles.

7. The site itself contains no heritage items however, the street trees on Edwards Road are listed as heritage item I743 in Hornsby Local Environmental Plan 2013.

Planning Controls

8. The following controls apply:

1. Hornsby Local Environmental Plan 2013 ("HLEP 2013"); under which:

• The site is within the R2 (Low Density Residential) Zone. In the R2 (Low Density Residential) Zone, the use of the site for the purposes of a "subdivision" is permissible with the consent of the Council. The site is mapped under the HLEP 2013 'Height of Buildings' Map with a maximum building height of 8 5m. However, no building is proposed as part of the development.

2. Sydney Regional Environmental Plan 20 - Hawkesbury River Catchment

3. Hornsby Development Control Plan 2013 (HDCP 2013). This DCP contains in s1C.1.2 Stormwater Management provisions including:

The desired outcomes are:

a.   Development that protects waterways from erosion, pollution and sedimentation, and maintains or improves water quality and aquatic habitats.

b.   Water management systems the minimise the effects of flooding and maintains the natural environment flows.

Water Hydrology

c.   An on site stormwater management system that deals with detention, retention and discharge rates is required for all development involving external works to maintain the environmental flow rates in receiving watercourses ...

e.   Natural flow paths within a site and the discharge point from the site should be retained and directed to its natural catchment.

4. Hornsby Shire Council Section 94 Development Contributions Plan 2014.

The contentions

9. A number of contentions were initially raised due to the lack of detailed information to address the environmental impact of the proposal. This included location of mature vegetation, landscaping arrangements, traffic access arrangements, stormwater control and discharge arrangements and matters of public interest.

10. Further details were subsequently provided and consequently the main issue concerns the adequacy of the proposed drainage/storm control and discharge arrangements. This includes the details for the quantity and quality of runoff, in particular the arrangements for discharge onto the downstream properties, as required by cl 1A.3 of HDCP 2013 whose objectives include:

protect and enhance the natural and built environment and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from development.

11. The threshold question concerns whether the proposed discharge arrangements are appropriate in the circumstances where there is no direct drainage easement. Council’s contention is that the proposed discharge into the natural depression through the land is not consistent with the economic and orderly development considerations, as per cl 1A.3 of HDCP 2013 as it does not ameliorate stormwater impacts on downstream properties that arise through the approval of the development.

The evidence

12. I understand that if the drainage issue can be satisfactorily resolved then a conditional consent may granted for the development. Accordingly a joint report of the stormwater experts was submitted from:

• Mr D Bewsher;   Consulting engineer for the Respondent

• Mr J Di Cristo;   Consulting engineer for the Applicant.

13. As part of the joint reporting process the engineers prepared a plan of the lots and stormwater pipe systems, which is an extract of Council stormwater assets database overlaid on LPI's cadastral information. It identifies their understanding of the pipe sizes and location of the private/informal stormwater drainage system in the vicinity of 8A Edwards Road as jointly inspected. There is at least one pipe system upstream (i.e. south-east) of the site which is not shown. The street numbers shown on the plan (in red text) are their best estimates. I include this useful plan at Attachment A

14. The joint report then includes a useful and practical background to this matter which I copy as follows.

Stormwater Practice

5   The experts agree that:

a.   It is normal stormwater engineering practice for any development to have a 'legal point of discharge' for stormwater disposal. This term i.e. 'legal point of discharge' is a stormwater engineering term and it refers to :

i.    an appropriate public drainage system under Council's control; or

ii.    a natural watercourse; or

iii.    an appropriate private drainage system over which the Applicant has obtained a legal right, and which in turn drains to either (i) or (ii).

b.   Items (i) and (iii) are not currently available to the site and the Application has relied upon (ii) being present.

c.   Whether or not (ii) is present is fundamental to these proceedings. We are stormwater engineers not lawyers and we understand that the determination of (ii) is ultimately a matter for others.

6   Our responses to most of the contentions hinge on whether (ii) is available to the site.

7   Based on the research we have carried out and the documents we have reviewed, there appears to be no evidence of a formal Council drainage strategy for the area.

Is a Natural Watercourse Present?

8   To assist the Court determine whether there is a natural watercourse present, and to provide the Court with a general understanding of the current drainage behaviour in the area, we offer the following comments:

a.   there are no bed and banks present within the site or adjoining sites;

b.   there is a depression running through the site which continues downstream through adjacent land;

c.   overland flows are carried through this depression after rainfall;

d.   various small diameter pipes are present within the depression. Whilst we haven't confirmed these by survey it appears to us that these comprise single 150mm, twin 150mm and a single 300mm pipe(s) which connect eventually to Council's 375mm pipe system near the common boundary of Nos 14 and 16 Edwards Road. (Refer plan in Attachment A);

e.   we understand from this point downstream that the Council likely has easements over, or ownership of, any land required for stormwater drainage. Upstream of this location there are apparently no formal drainage easements (either in favour of Council or private landholders);

f.   low flows and baseflows are carried within the pipe system;

g.   within No 24 Edwards Road, the watercourse has been formalised through construction of bed and banks possibly as part of a recent subdivision;

h.    the water that arrives in the depression within the site originates from runoff from the site and from upstream private land, and also includes runoff from a small area of the road reserve of Pennant Hills Road;

i.    upstream of the common boundary of Nos 14 and 16, it appears that subdivision has proceeded in the past without any formal stormwater easements (private or public) being obtained;

j.    DP 224106 was registered on 20 February 1964. This DP provided for the creation of the subject site. The DP shows a "natural watercourse" to the north of the site but no such annotation is shown through the site or the depression through adjacent sites that is referred to above ...

k.    DP 15317 was registered on 29 June 1928. This DP is for land immediately upstream (i.e. south-east) of the subject site and indicates that a "natural watercourse" was located immediately upstream of the site ...

9    Mr Bewsher notes that DPs and other registered survey plans are usually prepared by registered surveyors and whilst they may annotate a watercourse as a "natural watercourse" in his experience this may not be determinative. Similarly their failure to annotate watercourse as a "natural watercourse" does not mean that a natural watercourse is not present. When the watercourses are large, there is usually little doubt that the surveyors' annotations are correct. When the watercourses or depressions are small, as is the case in the vicinity of the subject site, their annotations may not be correct and different surveyors may annotate watercourses/depressions differently.

10 Because of the small size of the catchment, the lack of a 'blue line' on the Hornsby 1:25000 topographic map (i.e. No 9130-4S), his knowledge of similar catchments in the Hornsby Shire, and the lack of bed and banks in these areas, Mr Bewsher thinks it unlikely that a natural watercourse is (or was) present on the site. Based on his experience Mr Bewsher also considers the depression would not be classified as a 'river' or 'waterfront land' under the Water Management Act 2000.

11    Mr Di Cristo disagrees. He considers the comment in paragraph 10 is contrary to the statement made by the adjoining downstream neighbour at 10A Edwards Road who confirmed at the Section 34 conference that there was a watercourse through the subject site and his property prior to the original owner of the land installing the pipes. Mr Di Cristo doesn't think Mr Bewsher's denial that a natural watercourse was previously present is valid. (Mr Bewsher acknowledges that the land owner of No 10A made this comment but this does not alter Mr Bewsher's view expressed in paragraph 10).

15. The engineers also dealt with the scenario if a natural watercourse is not present and Mr Bewsher says that:

1. if a natural watercourse is not present, as rural land is progressively urbanised over time, it is normal practice to formalise provisions for stormwater disposal. Often when rural allotments are large, no formal provision (i.e. including for pipes and/or easements) is required. However as the size of allotments reduces over time and the character of the area changes from rural to urban, consequential changes in hydrology occur which include both water quantity and water quality changes.

2. In order for the environmental impacts of these changes to be effectively managed, at some point in time the normal practice is for the drainage system to be formalized in terms of the provision of both physical works and legal entitlements for stormwater drainage.

3. In his opinion, orderly development requires that the drainage system be formalized and furthermore this formalisation of the drainage system should have occurred in this part of Edwards Road prior to today. Accordingly if a natural watercourse is not present, it is inappropriate to allow further intensification of development in the area without formalisation of the stormwater drainage system.

16. Accordingly, the engineers agree that if no natural watercourse is present the then there are at least two stormwater disposal options to be considered:

1. The Applicant obtains easements through downstream properties, and if required undertakes upgrade works, to allow connection of his stormwater to the Council's stormwater system referred to in paragraph 8d above. (Mr Di Cristo notes there may be an option to also connect to an existing easement or natural watercourse located to the north of the site within either Nos 10 or 12A); or

2. The Applicant disposes his stormwater to a constructed stormwater system within his land and dedicates an easement to Council (without doing work or obtaining easements off site).

17. Both experts agree, given the current state of the catchment, option 16a will likely be cost prohibitive for the Applicant due to the scale of the development proposed in this Application.

18. In relation to option 16b :

1. Mr Di Cristo believes this option provides a means for Council to resolve the drainage issues in the area progressively over time as properties develop, in lieu of a formal s94 plan.

2. Mr Bewsher considers this option to be inappropriate, 'ad hoc' and contrary to normal practice. He says this because, for the reasons previously outlined above, no further intensification of development in the area should occur until the drainage system is formalised.

19. Both experts agree that the current drainage arrangement in the area is unsatisfactory. This is not assisted by the lack of an appropriate strategy as noted. In their opinion a strategy needs to be developed and a source of funding identified for implementation (if required). Responsibility for the development and implementation of the drainage strategy rests with Council and those land owners who might potentially benefit from the strategy.

20. Following the resident’s submissions about localized flooding events and associated nuisance, the engineers reviewed the updated engineering plans and agreed that the north-eastern portion of 10A is less impacted i.e. where the neighbouring house and garage are but the south west portion is more impacted where there is landscaping. They say that the proposed changes would be acceptable if the downstream discharge area is established as a watercourse. But if is not, then the change will only be acceptable if the drainage is formalized.

Submissions on “watercourses”.

21. Ms Reid submits that in the circumstances where the proposal is to capture the stormwater from the development by way of an on-site detention system (OSD) and then discharge it downstream into the existing depression/natural watercourse, it would merit consent subject to the conditions agreed by the engineers. But this outcome depends on the establishment of a “suitable point of discharge”. With regard to the subject discharge area, I accept initially that it is a depression because of its lower topography location, and function to convey stormwater from time to time.

22. References were made to several authorities on watercourses and associated rights and the law of nuisance and the flow of water. The Respondent’s position is outlined in its bundle of documents (Exhibit 3). This states that in common law the definition of "watercourse" is relevant to determining the extent of right to take water and the rights to drainage. In essence, an owner of land through which a "watercourse" passes is entitled to have water go from his land through the watercourse without obstruction. In Gartner v Kidman [1962] HCA 27 Justice Windeyer said:

"By the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water past his land. He cannot either deprive those lower down the stream of its flow nor pen it back upon the lands of his neighbour higher up. These rights and obligations do not depend on prescription or grant. They are proprietary in character, natural incidents of the ownership or lawful possession of the land abutting on the stream.... They do not depend upon the ownership of the bed of the stream, but of its banks ...They are thus called riparian rights."

23. Accordingly, the submission is that the leading Australian judicial definition of "watercourse" is found in the High Court decision in the case of Knezovic v Shire of Swan-Guildford [1968] HCA 38 where Chief Justice Barwick said:

" it is settled that a watercourse consists of a stream with a bed, with banks, and water That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water It must, in my opinion, essentially be a stream and be sharply distinguished from a mere dram, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel In the case of a drainage depression, the water being drained off can be expected to flow in the lowest portion of the contours confined by the rising levels of the adjacent land thus water can be seen when flowing to do so in what could be called a defined channel If the seasonal rainfall is within an average tolerance in amount and timetable, the flow in the depression may well exhibit some regularity in the depth of water flowing in the contour depression and in the extent to which it spreads as it flows If there is some such normality in the volume flowing, the impression of a defined channel with limiting margins will be enhanced If, as I would expect to be the case, there is considerable variation in the rainfall and in the volume and velocity of the water flowing in the depression, the impression of a defined channel may be considerably less But, in any event, the existence of such a defined channel will not make the drainage depression a watercourse nor the limiting margins of the water's flow in a rainy season or period "banks" of a stream Thus, though water when it flows in such a period flows in what can be called a defined channel, such a drainage depression will lack banks and a bed in the proper sense of that term, that is to say, identifiable margins of a continuous and permanent stream which contribute to its unity whether or not water is in fact continuously flowing over the bed ….

24. From this the Council’s position is that the fact that DP 224106 does not show a line described as "natural watercourse" running through the subject land (Lot 4) is not determinative of whether or not a watercourse exists or existed on the land. There is insufficient information about the physical characteristics of the relevant land to express any concluded view on whether there was in fact a "natural watercourse" present upon or traversing Lot 4 in the past Expert geomorphologic evidence and other evidence from persons familiar with the form of the land over time would be needed in order to properly consider whether there was in fact a "natural watercourse" present upon or traversing Lot 4.

25. However, the fact that DP 224106 shows a line denoted as "natural water course' on lots 5 and 6 but does not show any such line on Lot 4 tends to support a conclusion (when coupled with the observations that Council has provided to about the present physical state of the subject land) that if there was a natural watercourse on Lot 4 in the past it no longer existed by the time the survey for DP 224106 was completed (23 June 1964).

26. Furthermore, Mr Seton referred to following findings in the matter of Gartner v Kidman [1962] HCA 27; 108 CLR 12 (30 May 1962) wherein:

7.    By the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water past his land. He cannot either deprive those lower down the stream of its flow nor pen it back upon the lands of his neighbour higher up. These rights and obligations do not depend on prescription or grant. They are proprietary in character, natural incidents of the ownership or lawful possession of the land abutting on the stream: Mason v. Hill [1833] EngR 171; (1833) 5 B & Ad 1 (110 ER 692) ; Wood v. Waud [1849] EngR 545; (1849) 3 Exch 748, at p 774 [1849] EngR 545; (154 ER 1047, at p 1058) ; Chasemore v. Richards [1859] EngR 894; (1859) 7 HLC 349 (11 ER 140) , per Lord Wensleydale (1859) 7 HLC, at p 382 (11 ER, at p 153) . They do not depend upon the ownership of the bed of the stream, but of its banks: Lord v. Commissioners of Sydney [1859] EngR 307; (1859) 12 Moo PC 473 (14 ER 991) ; Lyon v. Fishmongers Co. (1876) 1 App Cas 662 , per Lord Selborne (1876) 1 App Cas, at p 683 . They are thus called riparian rights. It is unnecessary to multiply references to cases in which these rules of the common law have been enunciated and followed in Australia. It is enough to refer to H. Jones & Co. Pty. Ltd. v. Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282 , in this Court, and especially to the judgement of Fullagar J. (at p24)

8   The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different Generally speaking the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription (at p24)

27. Reference was also made to the following findings in the matter of Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382 in regard to nuisance considerations, which states:

Legal principles

133.   A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so: Hargrove v Goldman (1963) 110 CLR 40 at 59-61. There will be nuisance if a state of affairs created, adopted or continued by an owner or occupier of land harms another person's enjoyment of land occupied or owned by that other person, unless the first person's conduct involves no more than the reasonable and convenient use of its own land: Hargrove v Goldman at 62.

132.   That is to say, nuisance is a wrongful interference with another's enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer. However, an owner or occupier of land is not an insurer. There must be more than mere harm being done to another's enjoyment of land. The harm must be caused by the alleged wrongdoer's use of its own land. The word "use" connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier's right to do what it likes with its land and a neighbour's right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary: Elston v Dore (1982) 149 CLR 480 at 487^-88.

28. Against this, Ms Reid says that in considering the common law approach it is also necessary to consider the provisions of the Water Management Act 2000 No 92. Her submission is that the following is relevant:

Part 3 Approvals

Division 1 Preliminary

88A Application of Part

(1) This Part applies to:

(a)    each part of the State or each water source, and

(b)    each type or kind of approval that relates to that part of the State or that water source, that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies, and

91 Activity approvals

(1) There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals.

(2) A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.

393 Abolition of common law riparian rights

Any right that the owner of riparian land would, but for this section, have at common law with respect to the flow of any river, estuary or lake through or past the land, or to the taking or using of water from any such river, estuary or lake, is hereby abolished.

29. And also relevant are the WM(G) Regulation 2011 definitions:

river includes:

(a)   any watercourse, whether perennial or intermittent and whether comprising a natural channel or a natural channel artificially improved, and

(b)   any tributary, branch or other watercourse into or from which a watercourse referred to in paragraph (a) flows, and

(c)   anything declared by the regulations to be a river, whether or not it also forms part of a lake or estuary, but does not include anything declared by the regulations not to be a river., and..

waterfront land means:

(a)    the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, or

(a1)    the bed of any lake, together with any land lying between the bed of the lake and a line drawn parallel to, and the prescribed distance inland of, the shore of the lake, or

(a2)    the bed of any estuary, together with any land lying between the bed of the estuary and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the estuary, or

(b)    if the regulations so provide, the bed of the coastal waters of the State, and any land lying between the shoreline of the coastal waters and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the coastal waters,

where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. Land that falls into 2 or more of the categories referred to in paragraphs (a), (a1) and (a2) may be waterfront land by virtue of any of the paragraphs relevant to that land.

Findings

30. Having considered the evidence and submissions, it is apparent to me that the “depression” is not an acknowledged natural watercourse despite the existing works draining into it and overland flow carriage. The evidence indicates to me that more detailed information, including probably geomorphology investigations and detailed assessment of historical Subdivision Plans/DP’s would be required. I also note Mr Seton’s submission that the provisions of the Water Management Act 2000 do not apply because it doesn’t deal with putting “in”, instead it deals with taking water “out”.

31. However, in this regard I accept that I do not have the authority to make any declaration on the question of whether the depression is a natural watercourse.

32. But in my practical s79C assessment of the proposed 2-lot subdivision application I have considered the merits of the application in terms of the aforementioned legal precedents on the following basis.

33. I accept from the evidence that an engineering solution can be achieved to dispose of the stormwater from the development. But such discharge would be at some point along the northern side of the lot and flow through downstream through the adjoining Lot 120. This lot forms part of the natural depression in the landform and presently contains lawn areas and garden beds and this area would be inundated in certain storm events and some nuisance/ damage could occur to the lawn and gardens.

34. It seems to me that the confirmation findings in Gartner that “ … it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of water in the stream is intermittent or seasonal will not otherwise be a watercourse from being accounted such: “ are applicable to the subject matter.

35. From the view I am satisfied to rely on the engineer’s evidence that there is no bed and banks present within the site or adjoining sites. Nevertheless I accept that there is a depression where stormwater flows. Whilst this depression has been defined in some places, that does not make it watercourse. Therefore, I am not satisfied that the option to directly or indirectly discharge stormwater into the depression is acceptable because there does not appear to be any right to do so.

Conclusion

36. Insofar as the engineers considered a number of possible options to address the drainage issue, it is apparent to me that the existing drainage system along the depression certainly is an ‘ad hoc’ drainage arrangement comprising various land regradings, separate pipe entries, pits, garden diversions and it is not in accordance with any effective drainage strategy for this catchment. Nor does it represent 'good drainage' practice.

37. As required I have considered the provisions of the HELP 2013, particularly in regard to the Zone R 2 Objectives and accept that the proposal is consistent with them.

38. I have also considered the relevant provisions of the HDCP 2013, particularly the aforementioned s1C.1.3 which deals with watercourses. The associated stormwater management controls endeavour to minimise effects of flooding require an effective drainage discharge point and I am not satisfied that these requirements have been adequately met in the subject application.

39. Considering this existing situation, I do not consider it appropriate to grant a deferred commencement consent requiring a downstream easement or other legal arrangements in order to properly establish an acceptable point of discharge. Considering that this ad hoc drainage system has been in place for many years, I do not consider the imposition of such a precondition would lead to reasonable environmental outcome in a reasonable time, based on the evidence presented to the court.

40. By reference to the provisions of the EP&A Act 1979, the objects include to encourage:

(i)    the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)    the promotion and co-ordination of the orderly and economic use and development of land,…

41. The existing system does not present as an economic or orderly system and there is no overall management. Therefore I consider that the conditional approval of this proposal would be contrary to this objective and this contributes to its refusal. Furthermore, I do not consider that approval of this application based on the evidence before the Court is in the public interest, taking into account the various objections, as required by consideration of s79C (e) and this results in the refusal of the application.

Court orders

42. The Court orders that:

1. The appeal is dismissed

2. Development consent to DA/1130/2014 for the subdivision of Lot 4 (No 8A) Edwards Road, Hornsby into two lots is refused.

3. The exhibits may be returned except for 1, 4, 5, 7, A, B and C.

R Hussey

Acting Commissioner

155970.16 - Attachment A (137 KB, pdf)

Decision last updated: 27 January 2017