Lorenzato v Burwood Council

[2017] NSWLEC 1269

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lorenzato v Burwood Council [2017] NSWLEC 1269
Hearing dates:	24 May 2017
Date of orders:	31 May 2017
Decision date:	31 May 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application No. 83/2016 for alterations and additions to an existing dwelling house including new basement and attic levels, swimming pool and front fence at 13 Appian Way, Burwood is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A and B.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to the existing single dwelling house – whether deferred commencement conditions relating to the relocation of an existing stormwater pipe and the creation of an easement are reasonable – whether condition requiring detailed drainage plan is reasonable - potential privacy and acoustic impacts
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 607
Category:	Principal judgment
Parties:	Elisa Lorenzato (Applicant) Burwood Council.(Respondent)
Representation:	Counsel: Mr T To, barrister (Applicant) Mr M Wright, barrister.(Respondent)   Solicitors: Mills Oakley (Applicant) Matthews Folbigg Pty Ltd.(Respondent)
File Number(s):	2017/024930
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 83/2016 for alterations and additions to an existing dwelling house, including new basement and attic levels, swimming pool and front fence at 13 Appian Way, Burwood (the site).

2. The appeal was subject to mandatory conciliation and arbitration on 24 May 2017 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i)

3. The council maintains that approval can be granted to the alterations and additions but subject to deferred commencement conditions relating to the relocation of an existing stormwater pipe and the creation of an easement. The council also maintained the location of the proposed swimming pool deck created unacceptable acoustic and visual privacy impacts on the adjoining property to the west.

The site

4. The site is Lot 33 in DP 12249. It is generally rectangular in shape with a southern frontage of 18.01 m to Appian Way, a rear northern boundary of 21 m, a western boundary of 86.485 m, an eastern boundary of 85.97 m and a site area of 1688 sqm. The site is orientated on a north to south axis and the land has a fall of approximately 5.5 m from the front of the site to the rear of the property. Numerous tall mature trees are located in the backyard.

5. The site is currently occupied by a single storey dwelling (“Ravenna”) with a side garage located along the western boundary A swimming pool is located within the backyard of the property. A low height brick front fence also exists on the site. Immediately adjoining the development site to the east and west are single storey dwellings located 11 and 15 Appian Way.

6. Recent re-development in the locality has taken the form of alterations and additions to the existing single dwelling houses. The locality is characterised by predominantly residential development, with the predominant form of housing being Federation style single storey dwellings.

Relevant planning controls

7. The site is zoned R2 Low Density Residential pursuant to Burwood Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible in the R2 zone with consent. It is located within the Appian Way Heritage Conservation Area although the council does not raise any contentions relating to heritage. Clause 2.3(2) provides that the Court must have regard to the zone objectives when considering a development application although the council raised no contentions in relation to this sub clause.

8. Based on the contentions, Burwood Development Control Plan 2013 (DCP 2013) and Burwood Stormwater Management Code 1994 (the Stormwater Code) are also relevant.

Stormwater drainage

Conditions in dispute

9. Deferred commencement conditions 1 and 2 and operational condition 99 are in dispute as the council seeks their inclusion in any development consent. The applicant seeks their removal. The conditions, in full, are;

Part A - DEFERRED COMMENCEMENT CONDITIONS

This consent will lapse 6 months from the date of this consent, unless conditions 1 below have been complied with and Council's written confirmation of the satisfaction of the below conditions has been issued:

(1) The current 400mm diameter stormwater drainage pipeline traversing the subject property under the existing dwelling, must be relocated and constructed away from under the proposed building construction area. It is suggested that the western boundary alignment of the property offers the only potential route with adequate width/clearance for the new pipeline. As per Condition 102 (below) an easement is required for the new pipeline which must have an equivalent or greater capacity than the current pipe. The new pipe is to be constructed prior to the proposed works associated with the building in order that drainage system capacity is not impacted at any time. The new pipe must be connected to the existing stormwater inlet pits at the frontage of No. 13 Appian Way (which is upstream) and Council's pit (which is downstream) located in the backyard of No. 13 Appian Way, such that existing drainage characteristics are maintained or enhanced. This latter outcome is to be demonstrated by modelling as detailed previously.

(2) A drainage easement in favour of Council shall be obtained over Lot 33 DP 12249 traversed by the gravity drainage line connecting to Council's drainage system. The conditions regarding the easement are as follows:-

a. The cost of creating the easement will be at the applicant's expense.

b. The easement shall be a minimum of 2.5m wide.

c. The easement shall be registered on the title of the relevant lot(s) and lodged with the Land Titles Office. Proof of lodgement of the easement with the Land Titles Office shall be provided to the Principal Certifying Authority.

.

99. A detailed drainage study shall be prepared by a competent practicing hydraulic/civil engineer and submitted to the Council and the Principal Certifying Authority.

a. The study shall demonstrate that the development has no adverse effects on adjoining properties as a result of flooding and storm water runoff and that there is adequate protection for buildings against the ingress of surface runoff.

b. The drainage study is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a ConstructionCertificate.

Background

10. The background to the council’s conditions is uncontroversial. The dwelling on the site was likely completed sometime after 1904 and before 1911. The 400mm clay stormwater pipe was constructed prior to the construction of the dwelling and runs directly under the dwelling, from front to rear, generally bisecting the lot. The stormwater pipe is at a depth of around 3m near the street frontage and around 1m at the rear of the site. There is no easement for the stormwater pipe although its location is not in dispute.

11. More recently, the council has commissioned a number of drainage studies around the site from 2005 to 2016 because of flooding impacts. In 2013, and following flooding of the properties at 13-17 Apian Way, council carried out work to repair and reline the 400mm pipe along the site, together with an upgrade and raising of the footpath in 2014. After the work carried out by the council, the capacity of the stormwater system cannot accommodate more than a 1 in 2 year storm event. The residents who provided evidence on the site inspection unanimously raised concerns over the flooding impacts on their properties and in the area.

The evidence

12. There was no dispute over the inadequacy of the existing stormwater system in the area, including the subject 400mm pipe and the potential for flooding of properties in Appian Way, given its limited capacity, old age, clay construction and potential for blockage. Photographs showing the extent of previous inundation were provided when part of the 400mm pipe collapsed in the front yard of the site around 2012. The dispute between the parties is simply whether it is reasonable to impose deferred commencement conditions 1 and 2 and operational condition 99 on the application for alterations and additions to the existing dwelling.

13. Expert evidence was provided by engineers, Mr Steve Gray, for the council and Mr Pavel Kozarovski, for the applicant. Mr Kozarovski states there is no basis for the applicant to carry out the matters provided for in the disputed conditions whereas Mr Gray relies on the provisions of the councils Stormwater Code for his position that the conditions should be included on any approval.

14. The relevant parts of the Stormwater Code are:

8.8 Easements

For sites that have existing Council pipelines through them that are not covered by an easement, or where an existing pipeline is not within the easement, Council will require the creation of an easement in favour of itself over the pipeline. The easement width is to be the pipe, box, or channel section width plus 1.5m, with an overall minimum width of 2.5m.

Site drainage systems will require inter-allotment easements over downstream properties where the drainage traverses any other private property to connect to Council's drainage system. These easements are to be a minimum of 0.9m wide.

Dual occupancies, where separate title is created over each unit, will require an inter-allotment drainage easement over the downstream lot in favour of the other lot for any drainage lines or structures affecting the former.

The process for obtaining easements is:-

Registered Surveyor to prepare plan of survey.

plan to be submitted to Council for approval.

plan and application to be lodged with owners approval at Land Titles Office and fees paid.

Council to be advised of lodgement details.

Land Titles Office advises applicant / owner and Council of registration

Refer Conditions 1.9,1.10,1.11,2.10

8.16 Structures Over or Near Drainage Lines and Easements

New buildings, structures and tennis courts will not permitted over drainage lines or within easements. Paving over any drainage line or easement is acceptable, but will require appropriate jointing at the easement boundary, and to be in a material approved by Council's Engineer.

Clearances to easement boundaries are required to prevent structural loads on drainage structures or encroachment within the angle of repose of the soil. Piering is an acceptable technique to achieve this.

If there is an existing structure over the drainage line or easement within the site that is part of the application, then an access pit is required to be provided upstream and downstream of the structure OSD systems are to be designed to ensure that the conditions at the inlet side of the control device (ie inlet control) govern under all conditions.

Refer Conditions 1.4

15. With the benefit of submissions from Mr To, for the applicant and Mr Wright, for the council, I have little trouble in accepting that the conditions in dispute should not be included on any approval, for a number of reasons. First, I do not accept that the conditions satisfy the "Newbury tests" or principles to test the validity of planning conditions. In Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 607 Lord Fraser held that the power to impose conditions was subject to certain limitations, being:

it must have a planning purpose,

it must relate to the permitted development to which it is annexed, and

it is so clearly unreasonable that no reasonable planning authority could have imposed it.

16. Under any assessment, it could not be said that the conditions “relate to the permitted development to which it is annexed”. While the 400mm stormwater pipe runs through the site, the pipe collects stormwater from the 8.4ha catchment above the site; the site being at the low point in the catchment. Also of some importance is that the site does not make use of the stormwater pipe as the stormwater for the proposed dwelling, after the alterations and additions, will drain to the pit at the rear of the property. This pit is a junction point in the stormwater system before it enters an easement over 10-12 Wyatt Street and then further downstream. Similarly, I cannot accept that the need for a detailed drainage study that is to cover the 8.4ha catchment relates to the proposed development.

17. Given the lack of any real association of the council’s proposed conditions with the proposed development on the site, I can also comfortably conclude that the conditions are“ so clearly unreasonable that no reasonable planning authority could have imposed it”.

18. Second, the council seeks, in the disputed conditions, that the applicant is to provide a detailed drainage study for the catchment, relocate and presumably upgrade the pipe, prepare the documentation for the easement , create the easement and transfer the easement to the council; all at no cost to the council. I accept the submission of Mr To that the only power available for the council to acquire these works without cost is through s 94 of the Environmental Planning and Assessment Act1979. It was accepted that the only mechanism that the council has for collecting s 94 contributions is through their Section 94 Contributions Plan (July 2012) and that this plan contains no such contribution for the work required by the disputed conditions..

19. Third, the matter of proportionality is relevant. In my view, the work sought by the conditions is disproportionate to the extent of the alterations and the need to relocate the existing stormwater pipe and the other matters associated with the creation of an easement. The proposed alterations and additions only marginally extend the existing footprint over the existing stormwater pipe. To expect the applicant to prepare a drainage strategy for the 8.4ha area above the site and undertake an extensive and likely very expensive works given the minimal additional impact on the stormwater pipe is unreasonable, in the extreme.

20. Fourth, I am not convinced that the Stormwater Code provides the necessary warrant, as suggested by Mr Gray to undertake the work required by the proposed conditions. Part 8.16 is relevant and states, in part:

If there is an existing structure over the drainage line or easement within the site that is part of the application, then an access pit is required to be provided upstream and downstream of the structure OSD systems are to be designed to ensure that the conditions at the inlet side of the control device (ie inlet control) govern under all conditions.

21. If read literally, these comments do not suggest that the drainage line should be relocated but only that access pits be provided. There is nothing in the Stormwater Code to support the proposed conditions. The requirement for an easement only becomes relevant, in this case, if there is a sufficient reason to relocate the pipe, which has not been provided. The requirements in the Stormwater Code, in my view, should not be read literally but seen as general design principles that should be considered broadly and with a proper consideration of the particular issues involved.

22. The reference in pt 8.16 (first paragraph) to “New buildings, structures and tennis courts will not permitted over drainage lines or within easements” is not relevant and clearly is a reference to new development rather than a situation where a building is already constructed over drainage lines or within easements. The words “will not be permitted” suggests an absence of any structure over drainage lines or within easements and that in the event that approval was sought, any approval “will not be permitted”.

23. Put simply, the imposition of the conditions sought by the council is unmeritorious and should not be entertained.

Visual and acoustic privacy

24. Expert evidence on this matter was provided town planners Mr Mark Ranieri, for the council and Mr Benjamin Black, for the applicant. They agreed that the only area of concern was the location of the new pool patio adjoining the eastern boundary.

25. The area in question has been amended by increasing the side setback of the proposed water tank storage room to 900mm. The pool patio above the water tank storage room has a 250mm overhang on its eastern edge and has a side setback of 650mm to the eastern property boundary. A 1.5m high glass fence is also proposed on the eastern edge of the pool patio that will have a 700mm setback to the eastern side boundary. In addition, the existing vegetated screen will be maintained.

26. Mr Black states that the amended proposal creates an acceptable privacy relationship with the property to the east for the following reasons:

DCP 2013 requires a 900mm building setback and the proposal would effectively be compliant if the proposed 1.5m high pool fence was set 900mm off the boundary,

the property to the east has a driveway positioned adjacent to the common boundary, and

the existing dwelling to the east has a setback of 5m to the common boundary,

the existing vegetated screen will be maintained, and

Section 4.5.3.4, Control P1 of DCP 2013, allows for the use of vegetated screens as an adequate measure to create an appropriate privacy relationship.

27. Mr Ranieri states that the amended proposal is still unacceptable and presents adverse privacy, overlooking and amenity impacts to the adjoining eastern property. The amended design of the single dwelling has not taken into consideration the visual privacy of the adjoining neighbor as the rear elevated patio has a side setback of only 200mm to the eastern boundary. This side setback is unacceptable and does not comply with the minimum 900mm side setback requirement for a single storey elevation in Section 4.5.3.4, Control P1 of DCP 2013. A minimum 1.5m side setback to the eastern boundary is preferred by Mr Ranieri to minimise potential adverse privacy, overlooking, amenity and noise impacts to the neighbouring property.

28. With the benefit of the site inspection and an understanding of the plans, I agree with the conclusions of Mr Black. I do not see any practical benefit in increasing the side setback to 1.5m when the area in question is substantially screened by existing vegetation on the site that is to remain, adjoins a driveway on the adjoining property and where the dwelling on the adjoining property is 5m from the boundary. I also note that area is currently used as a deck for the existing pool with similar setbacks to that proposed in this development although the proposed deck is higher in elevation but still screened by the existing vegetation.

Orders

29. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 83/2016 for alterations and additions to an existing dwelling house including new basement and attic levels, swimming pool and front fence at 13 Appian Way, Burwood is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits A and B.

____________

G Brown

Commissioner of the Court

24930.17 Brown (C) (265 KB, pdf)

Decision last updated: 31 May 2017