Field v Lake Macquarie City Council

[2009] NSWLEC 1072

Land and Environment Court

of New South Wales

CITATION:

Field v Lake Macquarie City Council [2009] NSWLEC 1072

PARTIES:

APPLICANT
Kim & Jason Field

RESPONDENT
Lake Macquarie City Council

FILE NUMBER(S):

10775 of 2008

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- s 96 modification to condition requiring grant of drainage easement.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Sunlodge Development Pty Limited v Hornsby Council [1994] NSWLEC 147

DATES OF HEARING:

05/02/09, 17/02/09, 20/02/09

 
DATE OF JUDGMENT: 

13 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr N. Coren, solicitor
of Thomas Mitchell Solicitors

RESPONDENT
Mr J. Johnson, barrister
Instructed by Mr G. Long, solicitor
for Lake Macquarie City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 March 2009

10775 of 2008 K & J Field v Lake Macquarie City Council

JUDGMENT

Background.

1 This appeal is against councils refusal of a s96 application to modify condition 12 of a development consent granted for the erection of a new dwelling at 78 Lake Road, Balcolyn.

2 The development consent was granted on 1 June 2006 containing the following condition:

12 Drainage works.
Prior to the occupation of the dwelling the drainage easement and associated drainage works shall be completed .

3 The imposition of this condition apparently arose due to the land being relatively low-lying and situated towards the lower part of a significant catchment area. As such it was part of an overland flow path and subject to inundation during various storm events, necessitating improved drainage protection.

4 The site has an area of 878.4 sq m and residential development is permitted with consent. When the development application was lodged it was accompanied by a flood report by CSG Engineers dated 14 March 2005, which addressed the matter of overland flows and concluded that the ground floor habitable level must be constructed 500mm above the 1:100 year probable flood level.

5 Consequently the dwelling has been constructed and this has included some filling of the site so as to achieve the flood levels. It has also involved the construction of a relatively large drainage system adjacent to the western boundary to divert the overland flows.

6 This drainage system includes a large inlet/surcharge pit in Lake Road, a 2400W x 1200D box culvert along the western side boundary, terminating at in inlet structure approximately 1m inside the rear boundary. This inlet was to allow the ingress of overland flows from the upper catchment via the bund drain.

7 The construction certificate (CC) for these works was issued by council showing the extent of these works and I understand that they have now been constructed to council’s satisfaction.

The evidence

8 The main objection raised by the applicant is that it is unreasonable to require this condition because the need for the easement does not arise directly as a result of the dwelling development. Whilst the applicant accepts it is necessary to undertake some drainage works to secure its property from flooding, it does not consider it reasonable to create the easement and provide an extensive benefit to other developments in the upper catchment. This is in the event that they are able to directly connect and concentrate stormwater flows through the new drainage system, within the proposed easement.

9 Some confusion has apparently arisen because the applicant’s building plans that were approved show on drawing no: 0205/110, a stormwater easement 3000mm wide along the western boundary.

10 However the submissions for the applicant are that originally there was an earth bund outside the rear boundary that directed drainage into the subject property. CSG Engineers said that the purpose of the drain was for overland flow, which was already being directed onto the applicant’s property as a result of concerns by existing neighbours. The CSG report was limited in purpose to assess the requirements to safely convey water from the bund through the subject site. In these circumstances, a drainage easement is not necessary according to the property owner.

11 Consequently the neighbouring property owner (Impressions) to the south has obtained consent for subdivision of land adjacent to the subject land. Also, Impressions gained approval and has removed the earth bund and constructed a detention basin in close proximity to the subject land. This includes 3 x 130mm (approx) diameter outlet pipes directed into the inlet structure, within the subject property, apparently on the basis of “the existing culvert easement to drain water 3000 wide” (drawing no 07 – 301). However this ‘culvert easement’ does not exist at this stage.

12 The submissions for the applicant are that the original reason for imposing condition 12 was to protect No 78 Lake Road by diverting existing flows in the earth bund into the new box culvert system. It was not to specifically provide a drainage system for the benefit to the developers of the upper catchment. If such system is to be utilised on this basis then the question of increased maintenance and compensation arises.

Conclusions

13 Having considered the evidence, the submissions and undertaken a view I accept that the applicant has constructed a substantial drainage system along the western boundary, which includes the 2400 x 1200 box culvert. I understand that the cost of this work was in the order of $125,000.

14 The extent of this work is depicted in the approved CC plans No 54/2006 (6/9/06), which shows the works terminating approximately 1m inside the subject land and with provision for diverting the existing earth bund drain into the system. However it seems that situation has changed with the Impressions drainage works effectively removing the bund and directing stormwater from the detention dam into the drainage constructed drainage system. Another significant change is the concentration of stormwater into the detention dam necessitates increased maintenance of the system, including the outlet works.

15 In light of these change of circumstances, I note the applicants submissions in respect of Sunlodge Development Pty Limited v Hornsby Council [1994] NSWLEC 147, where His Honour Bignold stated:

"The other issue to be determined by the court is whether the applicants' should be compensated by reason of the easement, as a condition of the development consent, providing a benefit to the developer for which it would otherwise be required to compensate the applicant for.
Secondly on the merits of Condition 25, insofar as it requires the creation of the interallotment drainage easement, I do not accept Mr Taylor's opinion that it was reasonable or appropriate that the upstream properties should be benefited by a comprehensive drainage easement over and under the Applicant's property obtainable without the payment of reasonable compensation.
Nor am I able to accept his opinion that the principal purpose or reason for imposing Condition 25 Was to protect the Applicant's development from drainage from properties situate to its north.
In reaching these conclusions, I do not need to embrace the Applicant's mote drastic submission that the relevant portion of condition 25 is beyond the power conferred by s91(3) of the EP & A Act, although I acknowledge the strength of the submission. I a m content to find that the condition imposes an unduly onerous burden on the subject property and that a more acceptable burden is that imposed by the first sentence only of Condition 25 which has been Milted.
Finally on the question of how the discretion conferred by s102 should be exercised in the present case, I am comfortably satisfied that the case is clearly distinguishable from the Progress and Securities case inasmuch as the present Applicant has established why it originally accepted Condition 25, according to its understanding of the obligation thereby imposed, being an understanding that was reasonable and was confirmed, if not induced, by the Council's servants and was apparently acquiesced in by the Council, at least when it approved the DP and the related Instrument under s88B of the Conveyancing Act creating the drainage easement. I accept that the Council may have approved this instrument by a mistake or oversight and I of course accept that five months later it communicated to the Applicant its view that Condition 25 had not been totally :Idled However none of this reflects adversely on the Applicant `s conduct. Nor was it unreasonable for the Applicant, having been informed of the Council's view, to suggest what appears to be a fair and workable solution.
A further changed circumstance is the recent emergence of the development proposal for No 73 Es= Street which has the potential to profoundly affect the subject property by virtue of increased stormwater run-off

16 Considering that the subject land experienced inundation because of its location within an overland flowpath, at the lower part of the catchment, then this required appropriate works to protect the property from flooding risks. These works have been satisfactorily undertaken according to CC 54/2006 by the diversion of the bund into the new drainage system. Therefore the intent of condition 12 has been substantially satisfied, in my assessment.

17 From the submissions, it seems the protection of the subject property as originally intended by condition 12 can be secured by way of a restrictive covenant on the land. Such covenant would restrict the 3m wide strip in the following way:

(a) not allow any obstruction or interference of any kind to be erected, placed, created or performed so as to inhibit the flow of stormwater to and from the system;
(b) except in accordance with the written approval of the Council not allow any building, erection or structure to be constructed or allowed to remain constructed or placed on the system;
(c) not carry or allow to be carried out any change of land profile or earthworks on the system;
(d) not carryout or allow to be carried out any alterations to the system including surface levels, controlled outflows, grates, pipes, orifice plate, mesh screen or any other materials or elements thereof outside those normally required for the formation, maintenance and proper function of the system.

18 The terms of the positive covenant would then generally include:

a) permit stormwater to enter and be conveyed by the system;
b) regularly keep the system clean and free from grass clippings, silt, rubbish and the like;
c) maintain the system to ensure that it functions in the manner and to the specifications described in the report prepared by.... dated...;
d) ensure that the system at all times includes an overflow to direct any excess flow to the downstream drainage system;
e) maintain , repair, and replace the system or any part of it due to deterioration or damage without delay so that it functions in a safe and efficient manner.
f) comply with the terms of any written notice issued by the Council in respect of the requirements of this Positive Covenant within the time stated in the notice;
g) permit the Council to enter upon the lot burdened or any part of it with all necessary materials and equipment at all reasonable times and on reasonable notice (but at any time and without notice in the case of an emergency) to:
(i) view the state -of repair of the system;
(ii) ascertain whether or not there has been a breach of the terms of the positive covenant ;
(iii) execute works on the burdened lot for compliance with the requirements of this Positive Covenant ;
h) indemnify and keep indemnified the Council from and against all claims, demands, actions, suits, causes of action, sum or sums of money, compensation, damages, costs and expenses which the Council or any other person may suffer as a result of any malfunction or non-operation of the system or any failure of the proprietor to comply with the terms of this Positive Covenant.

19 I then consider that the intent of condition 12 can be reasonably achieved by the imposition of an appropriate restrictive covenant on the land rather than the necessity to create a drainage easement forwith. At this stage there is some uncertainty as to who would be the beneficiary for the easement because the upper catchment contains land for future subdivision that will create new public roads. As such there will be future road drainage reticulation that will likely be directed into this system, thereby requiring additional maintenance. Under these circumstances, any drainage easement is likely to be in favour of council.

20 I understand from the submissions that this outcome of the future creation of a drainage easement can be achieved in an orderly manner at the appropriate time in the future, at which time consideration can be given to any compensation for access to the restricted 3m wide drainage strip and arrangements for appropriate maintenance in respect of increased flows directed onto the subject property.

21 Under these circumstances I am satisfied that this application relates to the same development, there are no objections and that there are merits in modifying condition 12 to require a restrictive covenant in lieu of the drainage easement at this stage.

22 The Court orders that:

1 The appeal is upheld.
2 Condition 12 of the development consent granted on 1 June 2006 for a dwelling at 78 Lake Road, Balcolyn is modified as follows:

12A Drainage works

Prior to the issue of an Occupation Certificate all associated drainage works shall be completed and an appropriate covenant on the land registered that restricts development within the meaning of the EP&A Act 1979 encroaching on the 3m wide drainage area. The covenant should also require the maintenance of the approved drainage system through the property to ensure flooding risks are minimised.
3 The exhibits may be returned except for A, 1, 2 and 3.
________________________
R Hussey
Commissioner of the Court
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