Franks v Clarence Valley Council

[2008] NSWLEC 1181

Land and Environment Court

of New South Wales

CITATION:	Franks v Clarence Valley Council [2008] NSWLEC 1181
PARTIES:	APPLICANT Robert Franks RESPONDENT Clarence Valley Council
FILE NUMBER(S):	10097 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- subdivision- dispose of sewage
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	02/05/08
EX TEMPORE JUDGMENT DATE:	2 May 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr R Creighton, agent RESPONDENT Mr S Priestley, solicitor SOLICITORS Pickering Priestley

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

2 May 2008

10097 of 2008 Robert Franks v Clarence Valley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Clarence Valley Council (the council) of Application SUB 2007/0051 for the subdivision of 26A King Street, Ulmarra (the subject site) into two lots.

2 The single issue in the proceedings is whether the existing sewerage disposal system can be adequately dispose of waste water on the new lot that contains an existing dwelling.

The site

3 The site is Lot 11 in DP 712119. It is located on the corner of King Street and the Pacific Highway at Ulmarra. It is generally rectangular with a frontage of 25.35 m to King Street and a frontage around 50.7 m to the Pacific Highway, giving a total site area of 1046 sq m.

4 A dwelling is located at the southern part of the site and a commercial storage shed and a small storage shed are located at the northern part of the site.

The proposal

5 The proposal provides for proposed Lot 1 to contain the existing dwelling and an area around 500 sq m. Proposed Lot 2 will contain the commercial storage sheds and have an area around 546 square metres including a 5 m wide access along the western (or Pacific Highway) boundary from King Street. The proposed subdivision plan does not contain dimensions or specific areas for each of the proposed lots. There is no reticulated sewerage system available to the site.

Relevant planning controls

6 The site is within Zone 2(v) (Village Zone) under Ulmarra Local Environmental Plan 1992 (LEP 1992). The relevant objective for the zone is:

(c) to ensure, in the case of areas not provided with reticulated water or sewerage services, that development is at a density appropriate to the capacity of the land to absorb such development, and

7 Clause 25 states:

The council shall not consent to the carrying out of any development of the land unless it is satisfied that adequate arrangements have been made for the provision of electricity, water, sewerage and drainage facilities to or from the land.

8 Clarence Valley Council Development Control Plan - Development in Rural Zones (the DCP) applies. Relevantly, Part B24.3 states:

In unsewered areas on an existing lot where there is an increase in density, Council will require a high quality of effluent (secondary treatment) and at least 250 sq m of land per dwelling or unit four effluent disposal.

Where it is proposed to replace an existing dwelling with a new dwelling or add bedrooms to an existing dwelling, council will require upgrading of the on-site waste or a system in accordance with On-site Waste water Management Strategy 2005, unless a waste water consultant can justify otherwise.

9 The councils On-site Waste Water Management Strategy 2005 (the Strategy) provides guidelines and requirements for waste water management. The Strategy (at p 5) reiterates the requirement in the DCP that at least 250 sq m of land per dwelling is required for effluent disposal. The Strategy also requires a reserve area.

The evidence

10 Mr Andrew Martin, a town planner and health and a building surveyor provided evidence for the applicant and Mr Greg Long, a town planner and Mr Richard Roper a senior environmental officer with the council provided evidence for the council.

11 Mr Martin stated that the proposed subdivision was acceptable as the council had previously approved the existing sewerage disposal system for the dwelling and the storage sheds. He relies on the wastewater report accompanying the previous development application for the commercial shed by Geotech (2005). Mr Martin states that the proposed subdivision does no more than create an artificial line between the two existing uses. There is to be no change in the operation of either of the two uses so there is no need to change the approved sewerage disposal system. Similarly, the health risks remain unchanged. He further states that the applicant would be willing to accept a condition that required more regular inspections of the existing disposal system.

12 Mr Roper maintained that the subdivision creates a situation where the sewerage disposal system for Lot 1 is unacceptable notwithstanding the previous approval granted by the council. He states that the DCP requirements are not met for Lot 1 as the disposal area role of 250 sq m (excluding a reserve area) is not provided and there has been no report from a waste water consultant to support variation to the DCP requirement. He rejects the evidence of Mr Martin because the area that was previously available for the dwelling (located on proposed Lot 1) is now not available as it forms part of Lot 2.

13 The reliance on the Geotech (2005) report is also rejected by Mr Roper for two reasons. Firstly, the report does not provide an assessment of the nutrient balance for the existing dwelling although an assessment is provided for the commercial sheds. As I understand, the nutrient balance involves an area that is required to accommodate the subsurface seepage of nutrients from the disposal system. In his assessment, and using the Environmental and Health Protection Guidelines - On-Site Management for Single Households (February 1988) Mr Roper calculates that an area of 643 sq m is required. If the assessment of nutrient balance is undertaken using a methodology developed by Lismore City Council (as according to Mr Roper this is based on local conditions and recent scientific research) an area of 200 sq m is required. This compares favourably with the 250 sq m requirement in the DCP.

14 Secondly, the Geotech (2005) report underestimates the water usage for the dwelling (and consequently the area that needs to be provided for disposal). The report uses the actual water usage figures of 250 litres per day for the dwelling. According to Mr Roper, Australian Standard AS 1547 recommends a water usage rate of 145 litres per person per day. At a rate of 1.5 persons per bedroom for the existing two bedroom dwelling, the dwelling would have a water usage 435 litres per day. The consequence being that a disposal area of 58 sq m is required rather than the 33.3 sq m area advocated in the Geotech (2005) report. In Mr Roper's opinion, this area would be difficult to accommodate on Lot 1.

Findings

15 For the application for subdivision to be successful, the Court must be satisfied that adequate arrangements have been made for the provision of …sewerage ….facilities ….from the land. Based on the DCP, this requires the applicant to either provide a disposal area of 250 sq m (excluding reserve areas) or provide a report from a waste water consultant to show that sewage can be disposed of on-site with a lesser disposal area or using alternate means (excluding a pump out the system as this is specifically excluded by the DCP). The onus to show satisfaction with the requirements of LEP 1992 and the DCP rests with the applicant.

16 In accepting the evidence of Mr Martin that the existing use of the site is not to change, it does not necessarily follow that the approved sewerage disposal system for the dwelling and the storage sheds is suitable for the proposed subdivision. The existing approval relies on the whole site for the disposal of sewage whereas the proposed subdivision should reasonably require the disposal of sewage from each of the proposed lots to be contained within that lot. This is clearly not the case with the proposed development. The DCP sensibly provides the opportunity for the applicant to vary the subjective 250 sq m standard through a report from a waste water consultant. In this case, the applicant did not avail itself of this opportunity. There was no suggestion that Mr Martin would fall into the category of a waste water consultant. There can be little doubt that it is fundamental to the assessment of an application that any impacts created by a development (and not just sewage disposal) should be contained on the site of the application and not rely on adjoining properties for any relief from these impacts. The application fails to address this basic requirement.

17 It would also be inappropriate for the Court to blindly accept the conclusions of the Geotech (2005) report that underestimates the water usage for the dwelling even if it was previously seen by the council as being acceptable. The applicant provided no evidence to refute the conclusions of Mr Roper that reliance on Australian Standard AS 1547 was the most appropriate means of estimating the water usage from the dwelling and consequently the appropriate disposal area.

18 I can comfortably conclude that adequate arrangements have not been made for the disposal of sewage from the land, pursuant to cl 25 of LEP 1992. The proposed development is also inconsistent with zone objective (c). For these reasons, the appeal must be dismissed and the development application refused.

Orders

19 The Orders of the Court are:

1. The appeal is dismissed.
2. Application SUB 2007/0051 for the subdivision of 26A King Street, Ulmarra into two lots is refused

3. The exhibits are returned.

_________
G T Brown
Commissioner of the Court