Jacobs v Hurstville City Council

[2007] NSWLEC 468

Land and Environment Court

of New South Wales

CITATION:

Jacobs v Hurstville City Council [2007] NSWLEC 468

PARTIES:

Applicant
Kevin Roy Jacobs

Respondent
Hurstville City Council

FILE NUMBER(S):

10084 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Detached garage; stormwater discharge.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hurstville Local Environment Plan

DATES OF HEARING:

20 July 2007

EX TEMPORE JUDGMENT DATE:

20 July 2007

LEGAL REPRESENTATIVES:

Applicant
Mr. K. Jacobs, Applicant in Person

Respondent
Mr. J. Merlino, Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 July 2007

10084 of 2007 Kevin Roy Jacobs v Hurstville Council

This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT

Background

1 This appeal was lodged against council’s deemed refusal of a development application for a detached garage to accommodate 4 vehicles and a boat on land situated at 75 Clarke Street, Peakhurst.

2 The application was subsequently granted conditional consent by council, including a deferred commencement condition requiring the submission of details of the proposed stormwater disposal arrangements. The appeal was subsequently changed to an appeal against this deferred commencement drainage condition.

3 However, in the interim period, the applicant proposed further minor detailing arrangements to the proposal, which were not opposed by the council. Consequently, the appeal issues mainly concerned the appropriateness of retaining the deferred commencement drainage condition.

4 The full details of the site, proposal and planning controls are contained in the statement of facts and contentions, on which I rely. The site is within the Zone No 2 (Residential) and the proposal is permissible with consent. The relevant planning controls are tabulated as follows:

Hurstville Local Environmental Plan 1994
• Cl 5 - Interpretation
• Cl 8 - Zone objectives and development control table - Zone No. 2 (Residential Zone) and Zone No.6(a) (Open Space Zone)
• Cl 9 - Council policies
• Cl 14 - Tree preservation orders
• Cl 15 - Services
• Cl 18 - Development in open space zones
• Cl 19B - Foreshore scenic protection area
• Cl 22 - Excavation, filling of land
Greater Metropolitan Regional Environmental Plan 1994 - Georges River Catchment

• Part 1, Cl 5(1)(a)(b)(c)(d)(e) - Aims and Objectives
• Part 2, Cl 7(b) - Planning Principles
• Part 2, Cl 8(a)(b)(f)(g) - General Principles
• Part 2, Cl 9(5) & (9) - Specific Planning Principles
Draft Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment (Amendment No.1)
• Schedule 1 - Amendments to the Greater Metropolitan Regional Environmental Plan No. 2
  
  National Parks and Wildlife Regulations 2002
• Cl 11(1)(m) - Littering and damage
Single Dwelling House Code
• Cl 3.9 - Landscaping
Code for the Erection of Outbuildings
• Cl 6.2 - Allotment coverage
• Cl 6.3 - Size and total floor index
• Cl 6.4 - Building Lines
• Clause 6.5.4 - Garages, sheds and cabanas
• Cl 6.6 - Height
• Cl 6.7 - Foreshore Scenic Protection Area
• C; 7 External finishes

The evidence

5 Insofar as a number of people attended today’s s 34 On Site Hearing, evidence was presented by Mr S Kuntz (councils engineer), Ms A Aversa (councils town planner), Mr R Wilson (neighbour from 71Clarke Street), Mr P Rossini (neighbour from 73 Clarke Street) and Mr G Briscoe Hough (Hurstville Residents Association.)

6 In response to the drainage issue, Mr Jacobs explained that he was satisfied to direct the stormwater into Clarke Street. He preferred to do this via 3x100mm diameter pipes discharging into an existing drainage pit located on the footpath in front of No 73.

7 However, Mr Kuntz explained that the preferred stormwater alignment was via a charged stormwater pipe directly into the kerb in Clarke Street, adjacent to the subject land. This would minimise disturbance to the footpath area and provide a cost effective solution, which would be consistent with council’s current requirements for disposal of stormwater from properties on the lower side of the road.

8 Both the neighbours raised concerns about the effectiveness of the proposed stormwater disposal system, to ensure any new system minimises the risk of stormwater surcharges.

9 Mr Briscoe Hough expressed concerns about imposing conditions requiring discharge of stormwater to the upper level Clarke Street, rather than allowing gravity flow into the park at the rear of the site, as occurs by neighbouring properties.

10 Having considered the evidence and undertaken a view, I am satisfied that it is reasonable to impose a condition requiring satisfactory disposal of stormwater from the new garage structure. Whilst Mr Jacobs envisages that the stormwater can be disposed of along the footpath into the existing stormwater pit in front of No 73, it is apparent that there are number constraints comprising:

• the site topography and levels of the pit,
• the levels of the pipelines under of the proposed new driveway and existing driveway at No 73, and
• impact of the proposed pipelines on the existing Jacaranda tree in the footpath

11 Under these circumstances, I am satisfied that the deferred commencement condition requiring some detailed site survey information and an associated stormwater design to be undertaken, which addresses the aforementioned conditions, is reasonable to impose in the circumstances of this case. Such design can then be incorporated as part of the future Construction Certificate required by the other conditions of consent.

12 In any case, I note that the other conditions of consent require a Road Opening Permit and it is likely that the aforementioned stormwater design would be required to support the application for this permit. Accordingly I satisfied that the updated conditions, which relate to the amended plans a reasonable to impose and the following orders are then made.

1. The appeal is allowed in part.
2. Development consent is granted to DA 20060597 for the construction of a detached garage at 75 Clarke Street, Peakhurst, subject to the conditions in Annexure A.
3. The exhibits may be returned except for 2 and A.

___________________

Hussey R
Commissioner of the Court
DK/ljr