Le Mottee Group Pty Limited v Port Stephens Council

[2013] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation:	Le Mottee Group Pty Limited v Port Stephens Council [2013] NSWLEC 1210
Hearing dates:	29 October 2013
Decision date:	04 November 2013
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	Appeal dismissed
Catchwords:	Subdivision: Character/lot size, wastewater arrangements, stormwater control, precedent.
Legislation Cited:	Environmental Planning & Assessment Act 1979 Port Stephens Local Environmental Plan 2000 Port Stephens Development Control Plan 2007
Cases Cited:	Goldin & Anor v Minister for Transport Administering the Ports Corporatision and Waterways Management Act 1995 [2002] NSWLEC
Category:	Principal judgment
Parties:	Le Mottee Group Pty Limited (Applicant) Port Stephens Council (Respondent)
Representation:	Mr T Pickup (Solicitor) (Respondent) Mr P Le Mottee (Applicant in person) (Applicant) Solicitors Local Government Legal (Respondent)
File Number(s):	10404 of 2013
Publication restriction:	Nil

Judgment

Background

1. This appeal was lodged against council's refusal of a development application for a 2 - lot residential subdivision at 7 Morpeth Views, Wallalong. The proposed lots are described as:

• Lot 72 - with an area of 1,522 sq m and containing an existing dwelling house
• Lot 71 - with an area of 1820 sq m.

1. The contentions identified for the appeal are summarised as follows:

• The development does not satisfy the zone objectives relative to consistency with the existing subdivision pattern and character of the locality.
• Insufficient details of the proposed wastewater arrangements as required by Clause 47 of the LEP.
• Insufficient details of the proposed stormwater management arrangements have been provided.

The site

1. The site is described as Lot 13 in DP 1006527 and has an area of 3,342 sq m. It contains an existing two-storey double brick and tile dwelling (proposed Lot 72), which is located on the north-eastern side of the site. This dwelling gains access direct from Morpeth Views by way of an existing concrete driveway.

1. The site slopes from north (front) to south (rear) across the site and has a fall of approximately 1 m. There is minimal vegetation on the site with only some perimeter landscaping along the eastern and part of the southern boundaries.

1. There is a reticulated water service but it is currently unsewered. The site is classified as very high hazard under Council's Onsite Sewage Management Hazard Mapping (Multiple Lot Hazard Class). An existing waste water disposal system is located on the site, which services the existing dwelling on proposed Lot 72. However part of this is located on the proposed Lot 71 and it is proposed to disconnect this and provide a new wastewater system for both new lots.

1. The site is surrounded by residential and rural land uses. Several different lot layouts appear in the area demonstrating the historic subdivision pattern of the area. However, the area bounded by the western side of Scott Street, east of Clarence Street and north of Morpeth Street, Wallalong contains larger lots of over 3,000 sq m.

1. To the east of the site is a lot with a size of 3,157m2 on which a dwelling is located. To the west of the site is located a lot with a size of 5,637m2 on which an existing dwelling is located. To the south (rear) of the site is a council reserve. Across the road is a lot with a size of 5,684 m2 on which an existing dwelling is located.

Planning controls

1. The primary control is the Port Stephens LEP 2000 under which the site is zoned Residential 2(a). Clause 10 provides:

(2) The consent authority must not grant consent for development of land to which this plan applies unless it is satisfied that the proposed development is consistent with the objectives of the zone in which it is intended to be carried out.

1. Clause 16 of the LEP sets out the following relevant zone objectives:

(a) to encourage a range of residential development providing for a variety of housing types and designs, densities and associated land uses, with adequate levels of privacy, solar access, open space, visual amenity and services,

(b) to ensure that infill development has regard to the character of the area in which it is proposed and does not have an unacceptable effect on adjoining land by way of shading, invasion of privacy, noise and the like,

(d) to facilitate an ecologically sustainable approach to residential development by minimising fossil fuel use, protecting environmental assets and providing for a more efficient use of existing infrastructure and services,

(e) to ensure that the design of residential areas takes into account environmental constraints including soil erosion, flooding and bushfire risk.

1. Subdivision is permissible in the Residential 2(a) zone with development consent pursuant to Clause 17 of the LEP. A minimum lot size of 500 sq m is permitted unless the consent is also being sought for the erection of a dwelling on the lot.

1. However under Clause 47 of the LEP, the consent authority shall not grant consent to the carrying out of development unless:

(a) a water supply and facilities for the removal or disposal of sewage and drainage are available to that land, or

(b) arrangements satisfactory to it have been made for the provision of that supply and those facilities.

1. Other relevant controls are contained within the Port Stephens DCP, in particular Elements B1 - Subdivision and Streets and B2 - Environmental and Construction Management.

1. An 'On - Site Sewage Management Policy' was adopted by council on 19/10/2004. It relates to the aforementioned controls and applies to owners and operators of all permanent on-site sewage management systems in the Port Stephens LGA that do not directly discharge human effluent and trade wastes to a Hunter Water Corporation sewer or public sewage management facilities.

1. This Policy was based on a number of Australian Standards and local studies including:

• Broad Scale Study of On-site Effluent Disposal Suitability in the Port Stephens Council LGA, Martens and Associates, 1999
• Port Stephens Council On-site Sewage Management Technical Manual, BMT WBM, March 2011

1. The Policy includes a "Development Assessment Framework" (DAF), which is to provide Council officers, applicants, consultants and installers the necessary information to undertake an appropriate level of site and environmental investigation, system design selection and sizing of any system installation. The DAF is based on the classification of land into four risk categories (low, medium, high and very high) according to defined topographical, environmental, soil and climate factors. The more constrained the property the higher the hazard class. The level of assessment required for development applications is a function of the hazard class identified for the property. The higher the hazard class the greater the level of assessment required.

The evidence

1. Detailed evidence on behalf of council was presented by:

• Mr B Asquith, Council's wastewater consultant
• Mr S Page, Council's development engineer
• Ms A Gale, Council's development co-ordinator.

1. The Applicant relied upon details provided with the development application and made some references to a draft report on wastewater by Martens Consulting Engineers (MCE).

Wastewater

1. The threshold matter in this case concerns the treatment and management of wastewater, particularly as the land is classified as "very high hazard". It appears that the applicant's proposal involves the alteration of the existing system so as to provide new surface irrigation areas within the 2 new lots, each with an area of approximately 450 sq m as shown in Ex A.

1. Mr Asquith assessed this proposal for the separate effluent land application areas (LAA) for both lots (Lot 71 with an area of 1522 sq m and Lot 72 with an area of 1820 sq m) on the basis of the DAF procedure within the context of the planning controls, including the DCP provisions in B2 C50, which states:

B2.C50The subdivision of land for residential, retail, commercial or industrial use must be serviced by a centralised/decentralised reticulated sewer system managed by the local water and sewer authority. Where connection to a reticulated sewer system is not available, the development of land utilising on-site treatment and disposal of human effluent may be considered if:

Each residential allotment has a minimum area of 4000 square metres of useable land;

Development for uses other than residential purposes has sufficient useable land available for the purpose of locating a system of sewage management and land application area (including reserve land application area);

1. Mr Asquith undertook a site inspection and related his assessment to the preliminary details contained in the MCE report, which indicated that a LAA of 450 sq m for each new lot could be suitable. In the circumstances of no joint conferencing, accordingly, Mr Asquith makes the following points regarding the site conditions:

• There are shallow soil profiles at the site with the depth of rock ranging from 0.3 - 0.8 m below ground level with the shallowest soil observed at the downslope end of the application area.
• The soil depth of approximately 0.3 m at the downslope of Lot 2 is well below the ASNZS 1547:2012 minimum of 0.6 m and is of particular concern as all effluent will drain through this thin layer during low evapo - transpiration conditions and following rainfall events.
• Both lots display impeded drainage due to the presence of heavy clay, which has the potential to limit the hydraulic capacity of the site for effluent application and will likely increase the risk of surcharge of effluent.
• The laboratory analysis of soil samples indicated strongly sodic (sodium) presence, which typically displays reduced hydraulic conductivity that influences the Design Loading Rate for the soil.
• The MCE assumptions for phosphorus sorption capacity is also questioned because Mr Asquith says that the soil analysis shows the soils have only low to moderate capacity, resulting in some 35% lower than the value adopted by MCE.
• Insufficient justification is provided for the recommended Design Irrigation Rate (DIR). In particular he says that the MCE report does not adequately address the low sodic clays, which typically have low hydraulic conductivities. As such the risk of hydraulic failure of effluent land application systems is high.

1. Insofar as the design and sizing of the on - site wastewater management system follows from the site investigation, Mr Asquith considers that some of the assumptions made in the water balance calculations are not directly appropriate and as this influences the design irrigation rate (DIR), a more appropriate conclusion is that the minimum effluent land application area of 580 - 850 sq m would be required. Furthermore, he says that regardless of the total land area, the proposal would result in excessive linear loading rate and excessive hydraulic surface failure.

1. Mr Asquith also expressed concern about the suitability of the proposed boundary setbacks as follows:

(a)   There are a number of significant constraints that increase risk of hydraulic failure and potential effluent runoff.

(b)   The site is located up slope of a public open space (sporting field) with a potential flow path for any effluent entrained in runoff past a children's playground and a pre-school. As such the risk of exposure to the public is elevated on typical conditions.

(c)   The artificial pond on the adjacent property to the west is likely to be limiting the hydraulic receiving capacity of the south west corner of proposed Lot 71.

(d)   Current subdivision plans show stormwater management infrastructure in the south east corner of proposed Lot 71 that currently encroaches on the effluent land application area proposed by MCE.

1. With regard to the council assessment process, Mr Asquith says that the proposal should be subject to DAF assessment. Therefore under the DAF subdivision of the proposed lot is classified as "very high hazard" with respect to on-site sewage management. This is largely driven by the small potential lot sizes and limited useable land for effluent management practically available. It is also supported by cumulative impact modelling undertaken as part of supporting technical studies for the DAF which showed elevated potential for pollutant export from subdivisions with average lot sizes less than 4,000 m2 and significant risks where lots are proposed at less than 2,000 m2 (BMT WBM, 2011).

1. Mr Asquith concludes that the current proposed on - site wastewater scheme in the "very high hazard" risk category does not satisfy council's DAF procedure for the following reasons:

• The proposed lot sizes are significantly lower than the minimum required for unsewered subdivision in the DCP (2007). Technical investigations undertaken to support Council's On-site Sewage Development Assessment Framework (DAF) indicate that risks of cumulative off-site impacts to water quality are significantly elevated where proposed lots contain less than 2,000 m2 of useable land (BMT WBM, 2011). The applicant has not provided adequate justification for servicing the smaller lots.
• There is insufficient justification that a sustainable effluent land application area can be accommodated within each lot. A number of optimistic assumptions were applied in the water and nutrient balance calculations that underestimate the minimum required areas.
• Buffer distances have not been satisfactorily met.
• More appropriate minimum areas of (580 - 850 m2) based on corrected water balance calculations cannot be accommodated in combination with stormwater drainage requirements whilst meeting the requirements of the LEP with respect to subdivision character and layout.
• The shallow rock observed at the downslope end of the effluent land application area on proposed Lot 72 is a major hydraulic constraint that renders the area unsuitable for the proposed subsurface irrigation system
• The public open space, children's playground and pre-school located along the flow path for any surcharging effluent entrained in runoff create elevated risk conditions should hydraulic failure occur.
• The site is poorly drained and is currently impacted by an adjacent artificial pond and runoff from the road. The proposed on-site wastewater management strategy does not adequately address these limitations.

Stormwater

1. This issue concerns whether adequate drainage information has been submitted to satisfy the DCP controls regarding stormwater discharge (Refer cl B1.C38 and B1.C44 of the DCP). The issue arises because the land falls away from the road and backs onto council's public reserve. Consequently the runoff from the front of the site, together with any increased flow rates from increased impervious areas around a new dwelling has to be controlled so as not to adversely impact on the sewage irrigation fields or the public reserve.

1. Insofar as the Applicant initially provided a concept stormwater design comprising Atlantis flow tanks with an overflow pipe into the reserve, it however acknowledged in the appeal that another design would be more appropriate.

1. Mr Page said that he did not think the drainage concept plan was satisfactory. In acknowledging the lack of drainage details, he said that a detailed drainage scheme should be required prior to granting subdivision consent and such plan should be compatible with the wastewater plan restrictions.

1. In the absence of such plan, he made the following suggestions:

• Underground retention tanks with the relevant capacity could be provided to collect roof and surface runoff from one of the lots. Whilst the additional lot creates the requirement, council would require it to be placed on Lot 72, the existing dwelling.
• Construct bunds and subsoil to collect and convey stormwater runoff around the effluent disposal areas for both lots.
• Stormwater overflows on both lots are to be disperse within the lots so as not to concentrate flows onto downstream properties or the effluent disposal areas i.e. no pipelines, headwalls or the like within the council oval.
• Implement the above measures prior to subdivision certificate.
• Subject to the circumstances of positioning and which lot the tank is proposed on, include a restriction on the title to identify the bunding and tank location/requirements, and require any future development must convey site runoff into the tank and then reuse the water for toilet and laundry purposes in line with BASIX.

Planning

1. The main planning issues concern the consistency of the development with relevant zone objectives, particularly whether the subdivision lot sizes would be consistent with the existing subdivision pattern and character so as to maintain the existing amenity of the locality.

1. The only planning evidence was presented by Ms Gale. She delineated the relevant 'locality area' for her assessment on the plan at Appendix C. The site is within an area mainly to the west of the existing village and the majority of the lots are in the order of 4000 sq m, or larger: The character comprises predominantly larger dwellings with associated large sheds and ancillary buildings.

1. Ms Gale does not support the application because:

• The property to be subdivided is located within an area, where all lots are of similar size and character, creating a certain character, lifestyle and amenity within the estate. The applicant has not demonstrated that the proposed lots are consistent and in keeping with this immediate subdivision pattern. Consequently, the proposal is not considered consistent with the character and would likely adversely affect the amenity of the immediate area and will not reasonably meet the expectations of character, lifestyle and amenity
• Within the Residential 2(a) zone of PSLEP 2000, the minimum lot size prescribed is 500m2. However, this minimum lot size can only be achieved where a proposal can satisfy a number of other clauses within the PSLEP including Clause 16 - Residential Zones, Clause 44 - Appearance of land and buildings and Clause 47 Services. The application does not achieve this.
• The historic settlement pattern in Wallalong town centre consists of smaller allotments. However, beyond this original settlement, the subdivision pattern of the area is much larger in size and area, generally consistent with the 4,000m2 minimum lot size requirement of PSDCP 2007.
• Whilst the plan demonstrates that adequate setbacks from the front and rear boundaries are likely to be achieved in respect to dwelling location in accordance with Clause B6.4.4, nevertheless it is difficult to establish based on the information submitted whether full compliance with Clause B6.4.4 and Clause B6.4.12 is achievable without additional information and the resolution of adequate infrastructure / service provision associated open space areas available to future dwellings.
• Given the subdivision will also create lots which are more than 50% under the area required by PSDCP 2007 for un-sewered lots, the applicant has failed to demonstrate compliance with identified clauses by not providing an adequate level of detail on the subdivision plan for all that is required on these lots. The subdivision plan now shows an indicative building envelope, but does not identify an area of 50m2 of private open space clear of any area of the site required to be used for the disposal of wastewater or detention and/or disposal of stormwater.
• The proposed development is contrary to the provisions of cl B1.P21, as the lots proposed are less than 4,000m2 and therefore unreasonable and inconsistent with the subdivision pattern within the surrounding area and broader locality.
• The subject lot to be subdivided as it currently stands is already well below the minimum requirement of 4,000m2. As there are approximately 25 lots in the Locality which are un-sewered which are similar in size to the subject lot, then should the proposed subdivision be approved it will likely result in similar applications being lodged seeking subdivision of unsewered lots.

1. Ms Gale concludes that:

"In my view, when considering a proposal to subdivide land for the purpose of creating allotments intended to be used for dwellings, there are a number of key considerations, not just proposed lot frontage / width. In this case, key considerations include lot size, the overall amenity and streetscape resulting from subdivision and site constraints such as adequate service and infrastructure provision. In the present matter the applicant has failed to satisfactorily address these matters. As such the proposal should not be supported."

Conclusion

1. Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. In reaching this conclusion I note that the only expert evidence was presented by the council witnesses. This was unchallenged due to the applicant's limitation in submitting other expert evidence. Notwithstanding this, the experts gave notional consideration to the MCE report, which provided some preliminary servicing information relative to the subdivision.

1. The threshold issue concerns wastewater management. Clause 47 of the LEP restricts the granting of consent unless a water supply and facilities for the removal or disposal of sewage and drainage are available to that land, or arrangements satisfactory to it have been made for the provision of that supply and those facilities.

1. The only arrangements put before the Court were those contained in the preliminary concept by MCE. However in my assessment, the aforementioned evidence of Mr Asquith clearly demonstrated that this concept did not satisfy the cl 47 requirements.

1. I accept from the evidence that the predominant lot size in the 'locality' is approximately 4000 sq m. This has probably occurred because this is the optimum lot size identified in earlier engineering/environmental reports for dwellings dependent on wastewater serviced by land irrigation systems. Whilst there is some discretion in the application of this control, the fact that the proposed new Lot 71 with area of 1522 sq m and Lot 72 with an area of 1820 sq m are considerably under this stated minimum 4000 sq m area.

1. I understand then that this area deficiency triggers the requirement for a DAF assessment. However I accept Mr Asquith's evidence that this assessment has not been completed. I think this is essential because the site is classified as 'Very High Hazard' for sewage management as stated by Mr Asquith. Notwithstanding the cross examination of Mr Asquith, I am satisfied to rely on his opinion as the only reliable evidence presented to the Court on the wastewater management issue.

1. The associated issue concerns the stormwater controls as required by the DCP. It is apparent that if a new dwelling is to be subsequently approved on Lot 71, then detailed drainage controls would be required. Such controls would deal with the runoff from the road, any increased rate of discharges from the increased impervious areas and the method of dispersion of the stormwater onto the adjoining public reserve.

1. Likewise details would be required for the stormwater discharge from the existing dwelling to ensure it is compatible with the LAA for this dwelling.

1. Whilst the Applicant submits that this issue could be covered by conditions of consent and subsequently addressed, I do not consider that appropriate in the circumstances of the identified constraints and the need to carefully assess the overall integration of servicing all new subdivision lots. Accordingly, I am not satisfied that the provisions of the DCP and LEP requiring satisfactory arrangements to be made for the drainage of the land have been made.

1. I rely on Ms Gale's planning evidence that it is appropriate to define the 'locality' within which the site is situated. Accordingly this differentiates the village area from the lots in the designated "locality" where most of the lots are in the order of 4000 sq m. As such they generally contain larger dwelling houses and well separated ancillary buildings. This provides a relatively high level of separation and amenity.

1. Consequently, I accept Ms Gale's opinion that the proposed lots are significantly smaller than lots in the locality and with the environmental and servicing constraints, the approval of the subdivision would not reasonably satisfy the relevant character, amenity and servicing controls.

1. I note that Ms Gale expressed concern about precedential issues in her evidence and Mr Pickup made submissions based on the following authority in Goldin & Anor v Minister for Transport Administering the Ports Corporatision and Waterways Management Act 1995 [2002] NSWLEC:

28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.

1. However, I give this issue little weight in the subject case because the application fails on other grounds.

1. In summary then, there was insufficient details to address the environmental constraints of the site and I rely on the evidence of the council witnesses that the application should be refused. In particular, I do not consider the requirements of cl 47 of the LEP have been satisfied.

Court orders

1. The Court orders that:

(1)   The appeal is dismissed.

(2)   Development Application No 16 - 2012 -99 - 1 for a 2 - lot subdivision of Lot 13 DP 1006527 (No 7) Morpeth Views, Wallalong is refused.

(3)   The exhibits may be returned except for 1, 5 and A.

R Hussey

Commissioner of the Court

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Decision last updated: 04 November 2013