Extreme Enterprises Australia Pty Ltd v Blayney Shire Council

Case •

[2023] NSWLEC 1196

•

26 April 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Extreme Enterprises Australia Pty Ltd v Blayney Shire Council [2023] NSWLEC 1196
Hearing dates: 23 February 2023
Date of orders: 26 April 2023
Decision date: 26 April 2023
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1) The appeal is dismissed;

(2) Development Application DA119/2017, seeking consent for construction of a dwelling house with rainwater tank and on-site effluent disposal; is determined by way of refusal;

(3) The exhibits are returned, with the exception of Exhibits A and 1.

Catchwords:

DEVELOPMENT APPLICATION – construction of a dwelling – proposed on-site effluent disposal – whether proposed on-site effluent disposal is acceptable – whether proposed stormwater drainage is acceptable - whether site has suitable vehicle access – site subject to planning proposal to amend minimum lot size in relation to dwelling permissibility

Legislation Cited:

Blayney Local Environmental Plan 2012, cll 2.3, 6.2, 6.8

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 77

Texts Cited:

Blayney Development Control Plan 2018

Health Protection Guidelines – On-Site Sewage Management for Single Households, January 1998

NSW Department of Health et al., Environment &

Standards Australia and Standards New Zealand, Australian/New Zealand Standard AS/NZ 1547 – On-site domestic wastewater management, May 2000

WBC Strategic Alliance, Guidelines for Engineering Works, August 2009

Category:Principal judgment
Parties: Extreme Enterprises Australia Pty Ltd (Applicant)
Blayney Shire Council (Respondent)
Representation:

Counsel:
J O’Leary (Agent) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Respondent)
File Number(s): 2022/309911
Publication restriction: No

Judgment

  1. COMMISSIONER: Extreme Enterprises Australia Pty Ltd (the Applicant) has appealed the refusal by Blayney Shire Council of its development application DA119/2017, made with owners’ consent, seeking approval for construction of a dwelling, along with a rainwater tank and on-site effluent disposal (the Proposed Development) on land identified as Lot 14 in DP 1096417, in Mandurama (the Subject Site).

  2. The location of the Subject Site, identified by the red marker, within Mandurama and in relation to Olive Street (Mid-Western Highway) is illustrated in the figure below which is an extract from Google maps.

  1. The Subject Site is also identified as 37 Silver Road, but actually fronts an unformed street known as Banana Street, which itself is a cross street to an unformed extension of Silver Street. The unformed Banana Street has a width of approximately 6m.

  2. The location of the Subject Site in relation to the unformed parts of Silver Street and Banana Street is also shown in the following figure which is taken from the NSW Government’s Six maps facility.

  1. The Subject Site has a trapezoidal shape, with the following dimensions:

  1. a frontage to the unformed Banana Street of about 20m;

  2. a rear boundary length of 20m to its south-west, and backing on to the Blayney Demondrille railway corridor;

  3. a 43m boundary to the north-east, and a 40m boundary to its south-west; and

  4. an area of approximately 828m2 according to the Applicant’s survey submitted with its development application but said by the Respondent to have an area of 845m2 the difference being immaterial for the purposes of matters considered in this appeal.

  1. The Subject Site has a drainage channel running south-west to north-east through its front half as it addresses the unmade Banana Street, the presence of which is confirmed in the Applicant’s site survey, reproduced in the following image.

  1. The Applicant’s appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), and they are determined pursuant to the provisions of s 4.16 of the EP&A Act.

  2. The Proposed Development includes:

  1. construction of a proposed dwelling;

  2. a detached garage;

  3. installation of a rainwater tank; and

  4. on-site effluent disposal.

  1. The layout of the proposed development as provided by the Applicant within its development application is illustrated in the following image.

  1. The dwelling that forms part of the application is proposed by the Applicant to be constructed directly over the position of the drainage channel as illustrated in the Applicant’s survey of the Subject Site.

  2. A site view was undertaken prior to the commencement of the hearing and one objector, Mr Mark Richardson, the owner of a lot located along Banana Street to the south of the Subject Site, provided an oral submission to the Court during the view.

  3. Mr Richardson said that:

  1. his principal concern related to the presence, and continued functionality, of the drainage channel traversing the Subject Site and which he said served to direct stormwater from a southerly to the northerly direction through the Subject Site; and

  2. stormwater travelling along the drainage channel and passing through the Subject Site would flow into the Applicant’s proposed dwelling should it be constructed in its nominated position following any grant of a consent.

  1. At the commencement of the hearing the Respondent stated that it did not press that the Proposed Development was required to comply with cl 6.2 of Blayney Local Environmental Plan 2012 (BLEP) in relation to stormwater drainage as the clause did not apply to land zoned RU5 which is the zoning of the Subject Site.

  2. The Respondent also said that the remaining contentions in the appeal concerned the following matters:

  1. whether the Proposed Development provided, or was able to confirm, that the following essential services would be available when required:

  1. services for the disposal and management of sewage;

  2. services to provide for stormwater drainage or on-site conservation of stormwater;

  3. suitable vehicular access to the Subject Site; and

  1. whether the Subject Site is suitable for the Proposed Development and approval of the development is in the public interest.

  1. The Court was assisted in its consideration of these matters by a single expert report in relation to engineering issues, prepared by Mr AndrewMuir, an engineer employed by Blayney Shire Council.

  2. In response to a query from the Court, Mr O’Leary, who is sole owner and director of the Applicant company and who acted as an agent for the Applicant in the proceedings, stated that he had elected not to engage legal representation for the appeal, and had also declined to engage any expert to provide evidence in support of the appeal. He added that he had taken this decision as the Applicant company did not have the resources to engage legal representation or expert advice in relation to the contentions raised by the Respondent.

Statutory context

Environmental Planning and Assessment Act 1979

  1. Section 4.15(1)(a) requires:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

  1. Section 4.15(3A) of the EP&A Act provides as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

Environmental Planning and Assessment Regulation 2000 (EP&A Regulation)

  1. The following provisions of the EP&A Regulation are of relevance in this appeal:

  1. clause 49(1), which requires that, inter alia, a development application must be made by an owner of the land that is the subject of the application or with the consent of the owner of the land;

  2. clause 77(1), which concerns notification of development applications as follows:

(1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must -

(a) publish notice of the application on the consent authority’s website, and

(b) give notice of the application to -

(i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

Blayney Local Environmental Plan 2012

  1. The Subject Site is zoned RU5 pursuant to the provisions of cl 2.3 of BLEP and construction of a dwelling is a permissible use of the Subject Site, and under cl 2.3(2) of BLEP the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. Those objectives are:

To provide for a range of land uses, services and facilities that are associated with a rural village.

To minimise conflict between land uses within this zone and land uses within adjoining zones.

To encourage and provide opportunities for population and local employment growth commensurate with available services.

To minimise the impact of non-residential uses and ensure those uses are in character and compatible with the surrounding residential development.

  1. Clause 6.8 of BLEP in relation to essential services requires that development consent must not be granted to development unless the consent authority, or the Court on appeal, is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

  1. the supply of water,

  2. the supply of electricity,

  3. the disposal and management of sewage,

  4. stormwater drainage or on-site conservation,

  5. suitable vehicular access.

Blayney Development Control Plan 2018

  1. Development on the Subject Site is also subject to the provisions of Blayney Development Control Plan 2018 (BDCP) which provides guidance and controls for the design and assessment of developments and which applies to all land to which the BLEP applies.

  2. The following specific objectives and requirements/controls are of relevance in this appeal:

  1. Part C8.9 of BDCP in relation to on-site sewage management, which has the following objective and acceptable solution requirements:

  1. Objective O1: To ensure (where reticulated / centralised sewage management systems are not available) appropriate on-site systems will be suitably sized and able to operate on the lot without impacting on development on the subject lot, neighbouring lots or surface or ground water systems, and don't require excessive vegetation removal;

  2. Acceptable solution: Where a lot is unable to connect to a reticulated sewage system, the applicant must provide an Effluent (Geo-technical) Report prepared by a suitably qualified geo-technical engineer that supports the design and location of any on-site system in accordance with Council’s Development and Building Guide, any relevant Australian Standards, and Part G2.5 On-Site Effluent Disposal of this DCP;

  1. Part 2.2 of BDCP that provides objectives for controls in Part G of BDCP. It includes the following objective:

“To incorporate appropriate buffers or setbacks between sensitive land uses (or zones that may support those sensitive land uses) and higher impact land uses (or zones that may support those uses) to avoid or mitigate against that impact”

  1. Part G2.5 of BDCP in relation to on-site effluent disposal, which requires, inter alia, that:

  1. where an on-site effluent disposal system is proposed to manage sewage, the on-site systems must be suitably sized and able to operate on the lot (taking into account the proposed use and its likely liquid waste/effluent production) without impacting on development on the subject lot, neighbouring lots or surface or ground water systems, and don't require excessive vegetation removal; and

  2. any proposed lots or on-site effluent disposal systems should be located so as to provide appropriate buffers to watercourses and buildings in accordance with:

  1. the Environmental Health Protection Guidelines – On-Site Sewage Management for Single Households (1998 - as amended);

  2. Australian Standard 1547 – On-site domestic wastewater management (as amended); and

  1. an Effluent (Geo-technical) Report must be prepared by a suitably qualified consultant that supports the design and location of any on-site system in accordance with Council’s Development and Building Guide, Australian Standard AS1547, and relevant NSW Government policy;

  2. on lots with an area less than 2,000m2 the nominated effluent disposal areas must allow for:

  1. suitable areas for dwellings and outbuildings, access, open space, and buffers to adjoining lots and watercourses; and

  2. a 'reserve area' at least equivalent in size to the nominated effluent disposal area that is recommended for disposal in the supporting Geo-technical (Effluent) Report.

  3. Note: The 'reserve area' is intended to allow a secondary disposal area to be constructed if the primary disposal area fails which is common in some villages.

WBC Strategic Alliance Guidelines for Engineering Works

  1. The WBC Strategic Alliance Guidelines for Engineering Works were developed to provide consistent guidelines for the design of engineering works within the Strategic Alliance Local Government areas of Blayney, Cabonne and Wellington and the Central Tablelands Water Distribution Area to facilitate the expeditious processing of engineering plan submissions, construction approvals, and linen plan releases for subdivisions and developments within these Council areas.

  2. Section 2 of the Guidelines provide requirements for the design of roads, and includes at section 2.3.4, concerning cross sections of roads, requirements for standard road widths, which relevantly in the current appeal identify that for urban cul-de-sac roads, the recommended width of road reserves is 15m and cycleway width are required to have a width of 8m.

Contentions

  1. As noted above (at [14]), the contentions in this appeal concern the responsiveness of the Proposed Development to the provisions of cl 6.8 of BLEP in relation to essential services, and require the Court to resolve the following questions:

  1. does the Proposed Development provide, or is the Applicant able to confirm, that the following essential services would be available when required:

  1. services for the disposal and management of sewage?

  2. services stormwater drainage or on-site conservation of stormwater?

  3. suitable vehicular access to the Subject Site? and

  1. is the Subject Site suitable for the Proposed Development and would approval of the development be in the public interest?

  1. Each of these questions of considered below, in turn.

Does the Proposed Development provide, or is the Applicant able to confirm, that services for the disposal and management of sewage would be available when required?

  1. Part C of BDCP:

  1. provides guidance in relation to residential development within the Blayney Shire, and Part C8.9 (see above (at [23(1)]) provides the requirements for on-site management of sewerage in relation to such developments;

  2. states that, where a lot is unable to connect to a reticulated sewage system, the applicant must provide an Effluent (Geo-technical) Report prepared by a suitably qualified geo-technical engineer that supports the design and location of any on-site system in accordance with Council’s Development and Building Guide, any relevant Australian Standards, and Part G2.5 of BDCP concerning on-site effluent disposal.

  1. The provisions of Part G2.5 of BDCP requires that any proposed on-site effluent disposal systems should be located so as to provide appropriate buffers to watercourses and buildings in accordance with, inter alia, the Environmental Health Protection Guidelines – On-Site Sewage Management for Single Households (1998 - as amended).

  2. Table 5 within section 4.3.3 of the Environmental Health Protection Guidelines – On-Site Sewage Management for Single Households (1998 - as amended), provides guidance in relation to buffer distances for on-site sewage management systems (particularly land application areas) and recommends a buffer distance of 40m to “other waters” including drainage channels.

  3. In response to the requirement within Part G2.5 of BDCP, the Respondent’s expert engineer, Mr Muir, had stated within his expert report that:

  1. in compliance with the BDCP - C8.9 – On-Site Sewage Management and G2.5 On-Site Effluent Disposal - an effluent management report has been submitted with the application, and:

  1. the report indicated a disposal area in close proximity to a drainage channel;

  2. the location of the effluent disposal area appeared to be contrary to the recommended buffer distance of 40m to drainage channels required in the Environment & Health Protection Guidelines On-site Sewage Management for Single Households (1998 – as amended).

  1. the effluent management report alluded to an “additional system extension to be 3810mm wide x 6600mm long” noting that:

  1. it was not clear if this reference purported to nominate a reserve area as required under Part G2.5 of BDCP (see above at [23(3)(d)]); and

  2. no reserve area had been depicted on plans within the report.

  1. I have considered the Applicant’s plans for its Proposed Development together with the Respondent’s expert evidence and, notwithstanding the Applicant’s submissions as to the historical origins, timing and construction of the drainage channel on the Subject Site, I am satisfied that the Applicant’s proposed arrangements for the management of sewage do not accord with the requirements of Parts C8.9 and G2.5 of BDCP, because:

  1. the dimensions of the Subject Site preclude the provision of a 40m buffer to the drainage channel traversing the Subject Site, contrary to the requirements of Table 5 in section 4.3.3 of Environmental Health Protection Guidelines – On-Site Sewage Management for Single Households (1998), which are called up by Part G2.5(2) of BDCP;

  1. I agree with, and adopt, the reasons provided by the Respondent’s engineering expert, Mr Muir, that, contrary to the provisions Part G2.5(4) of BDCP the Applicant’s plans do not allow for a 'reserve area' at least equivalent in size to the nominated effluent disposal area and that should be recommended for disposal in the effluent management report, as required for lots under 2,000m2.

  1. I have also considered whether the Applicant’s proposals for on-site management of sewage achieve the objectives of the controls in Parts C8.9 and G2.5, as required under s 4.15(3A) (see above at [18]) of the EP&A Act and I am satisfied that the Proposed Development:

  1. does not achieve objective 1 in Part C8.1 (see above at [23(1)(a)]), which is an objective for the controls in Part C8.9 of BDCP, because the design of the development is not based on a site analysis of relevant site opportunities and constraints and it does not avoid, minimise or mitigate against land use conflict in relation to the drainage channel on the Subject Site;

  2. does not achieve objective 1 in section G2.2 (see above at [23(2)]), which is an objective for the controls in Part G2.5 of BDCP, because the development does not incorporate, and indeed is unable to provide in any way within the Subject Site, appropriate buffers between the drainage channel, which is a sensitive land use and the on-site sewage disposal system which is a higher impact land use and so cannot avoid or mitigate against those impacts.

  1. Based on the above, I am unable to conclude that the services for the disposal and management of sewage would be available when required for the Proposed Development, as required under the provisions of cl 6.8 of BLEP.

Does the Proposed Development provide, or is the Applicant able to confirm, that services for stormwater drainage or on-site conservation of stormwater would be available when required?

  1. Clause 6.8 of BLEP requires that the Proposed Development provides that stormwater disposal services are available or adequate arrangements have been made to ensure that stormwater drainage or on-site stormwater conservation capacity are available when required.

  2. The Respondent’s expert engineer, Mr Muir, had stated within his expert report that:

“An examination of the development application; accompanying plans and documentation confirms that no information has been provided in relation to stormwater management. From an examination of the plans it appears:

The dwelling is proposed to be situated partially within the open stormwater channel mentioned above.

No details have been provided as to how the dwelling will be protected from stormwater or whether the stormwater channel will be piped or diverted.

Should piping or diversion be required no details have been provided on construction and construction impacts (eg erosion control).

Alternatively, the dwelling may have to be relocated clear of the stormwater channel making an assessment of the proposal in the current location redundant.

No mention is made as to how stormwater from the proposed building structures or necessary siteworks will be addressed.

No mention is made in relation to the physical construction of Banana Street and how stormwater will be dealt with from either the development within the site or through the road construction works.”

  1. The Applicant submitted that stormwater could be captured from the Proposed Development and directed to an on-site detention (OSD) basin, and could then be directed to the street.

  2. In response, the Respondent submitted that, consistent with Mr Muir’s evidence:

  1. the Applicant had provided no details in relation to how stormwater from the proposed building structures or necessary siteworks will be addressed;

  2. notwithstanding the Applicant’s proposal that the stormwater be directed to an OSD facility and then to the street, there is no constructed street to which the stormwater could be directed and no proposal from the Applicant, and plans by the Respondent, to construct Banana Street;

  3. the Subject Site is subject to stormwater flows along the drainage channel that traverses the Subject Site and the Applicant has provided no proposals for the capture or management of those flows which, on the basis of the Applicant’s site survey and plans, are directed into the location of the Applicant’s proposed dwelling.

  1. Having considered the Parties’ submissions and the evidence of the Respondent’s expert evidence, I am unable to be satisfied that the Proposed Development provides that stormwater disposal services would be available or that adequate arrangements have been made to ensure that stormwater drainage or on-site stormwater conservation capacity would be available when required.

  2. Consequently, I am also unable to conclude that the services for stormwater drainage and disposal would be available when required for the Proposed Development, as required under the provisions of cl 6.8 of BLEP.

Does the Proposed Development provide, or is the Applicant able to confirm, that suitable vehicular access to the Subject Site would be available when required?

  1. Clause 6.8 of BLEP requires that suitable vehicular access for the development must be available or that adequate arrangements have been made to make that access available when required.

  2. The Respondent’s expert engineer, Mr Muir, had stated within his expert report that neither Silver Street nor Banana Street are formed or constructed such that they would provide suitable vehicular access to the Proposed Development when required. He also noted that the only reference in the Applicant’s development application to the provision of suitable vehicular access is a statement that the development has double access driveway.

  3. Mr Muir concluded that the Applicant had not provided any indication as to the construction of Silver Street and/or Banana Street to permit suitable vehicular access to the Subject Site and the Proposed Development.

  4. The Respondent submitted that Blayney Shire Council had no plans for the construction of either Silver Street ort Banana Street, and that even if it did propose such works the road reserve available in Banana Street, which has a 6m width, was insufficient to construct a road that would meet the provisions of WBC Strategic Alliance Guidelines for Engineering Works, August 2009. The Respondent noted that those guidelines required that Banana Street to have a 15m width which would require the Applicant to dedicate a 9m wide portion of frontage from the Subject Site to construct a road of compliant width.

  5. The Applicant submitted that it was not his responsibility to construct the road access to the Subject Site, and that he had offered land along the frontage of the Subject Site to the Respondent but the offer had not been accepted. He also confirmed in response to a question from the Court that the Proposed Development did not include any proposed works to provide vehicular access to the Subject Site.

  6. Having considered the Parties’ submissions and the expert evidence available in the appeal:

  1. I am satisfied that the Proposed Development does not include any proposal to provide suitable vehicular access to the Subject Site; and

  2. I am also unable to conclude that the suitable vehicular access would be available when required for the Proposed Development, as required under the provisions of cl 6.8 of BLEP.

Is the Subject Site suitable for the Proposed Development and would approval of the development be in the public interest??

  1. Noting my conclusions above in this judgment at [34], [40] and [46], and in particular noting the presence of a significant drainage channel across the width of the Subject Site, and the lack of suitable vehicular access to the Subject Site, I am able to conclude that:

  1. the Subject Site is not suitable for the Proposed Development;

  2. the Applicant’s development application should be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

  3. approval of the Proposed Development is not in the public interest.

  1. I also note the advice of the Respondent at the hearing that the Subject Site falls within an area that is the subject of a planning proposal (PP-2021-7118) to amend BLEP in relation to minimum lot sizes and dwelling house permissibility in and near a suite of villages including Mandurama.

  2. The proposal, which a delegate of the Minister of Planning has determined should proceed subject to certain conditions, would increase the minimum lot size required for construction of a dwelling house in unsewered areas of Mandurama, including in relation to the Subject Site.

  3. While not a determinative factor in relation to determination of the Proposed Development, it is a matter warranting consideration, and adds weight to my conclusion that the Applicant’s development application DA119/2017 should be refused.

Orders

  1. The orders of the Court are:

  1. The appeal is dismissed;

  2. Development Application DA119/2017, seeking consent for construction of a dwelling house with rainwater tank and on-site effluent disposal; is determined by way of refusal;

  3. The exhibits are returned, with the exception of Exhibits A and 1.

M Chilcott

Commissioner of the Court

**********

Decision last updated: 26 April 2023

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