Nabkan Constructions Pty Ltd v Hurstville City Council

[2012] NSWLEC 1138

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nabkan Constructions Pty Ltd v Hurstville City Council [2012] NSWLEC 1138

Hearing dates:

8 May 2012

Decision date:

08 May 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld.

2. Development Application No. 11/DA-277 for the demolition of all improvements and construction of 4 dwellings for seniors or people with a disability and strata subdivision at 50 Woronora Parade Oatley is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit A.

Catchwords:

DEVELOPMENT APPLICATION: demolition of an existing dwelling house and other improvements and the construction of four multi-dwellings for seniors or people with a disability and strata title subdivision - conditions for stormwater disposal

Legislation Cited:

Environmental Planning and Assessment Act 1979

Category:

Principal judgment

Parties:

Nabkan Constructions Pty Ltd (Applicant)
Hurstville City Council (Respondent)

Representation:

Mr N Eastman, barrister (Applicant)
Ms P Hudson, solicitor (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

10097 of 2012

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Hurstville City Council (the council) of Development Application 11/DA-277 for the demolition of an existing dwelling house and other improvements and the construction of four multi-dwellings for seniors or people with a disability and strata title subdivision at 50 Woronora Parade, Oatley (the site).

1. Prior to the hearing the council agreed that there were no contentions that would warrant the refusal of the application although there was disagreement over a number of the drainage conditions sought to be imposed by the council on the approval.

1. At the site inspection, two local residents raised issues over the proposed development that related to:

1. potential privacy impacts from the rear facing first floor bedroom window of unit 1;

2. the loss of privacy to the property at the rear; and

3. the visual appearance of the 1.8 m high fence located on a 0.85 m high retaining wall to the property at the rear.

1. The conditions in dispute relate to deferred conditions A, B, C and D, that in summary provide for.

• Condition A requires an easement over the adjoining property to be registered to allow the drainage of stormwater to the Council drainage system,
• Condition B provides further stormwater details including an overland flow path analysis (pt (a)), a hydraulic grade line analysis, (pt (b)), and an investigation that the stormwater pipeline will not interfere with the existing sewerage infrastructure (pt (c)).
• Condition C provides that consent is required for the proposed drainage works including requirements for the written consent of the owners involved, and
• Condition D requires certification from a registered surveyor that the pipeline is located within the easement.

1. A summary of the council's position is that conditions A,B,C and D are appropriate as deferred commencement conditions as there is some uncertainty that the council's drainage system may not have sufficient capacity to accommodate the proposed stormwater flows from the development and this could unacceptably impact on the amenity of adjoining properties through the overland flow of stormwater.

1. The applicant submits that the conditions are, at worst, operational conditions, given that a Deed has been signed by the adjoining owner of 50 Woronora Parade to allow for the easement to connect to the council's stormwater drainage system. Further, the applicants proposed drainage design has always been accepted by the council and this is reflected in the wording of both the deferred commencement conditions and operational conditions 28 to 32.

1. In considering the different approaches of the parties to the deferred commencement conditions, I am satisfied that most but not all the deferred conditions are appropriate as operational conditions as there is little, if any, uncertainty in their ability to be satisfied. The condition that I am not satisfied provides sufficient certainty for an operational condition is deferred commencement condition B pt(b) that requires an analysis of the proposed pipeline draining the site and the councils pipeline that will receive the site stormwater between Woronora Parade and Mi Mi Street.

1. As indicated on the site inspection, the stormwater design will drain into a different catchment than any stormwater from the site would naturally drain to. While the approach adopted by the council, through its conditions and the absence of any specific contentions in the proceedings would appear to accept that the applicants proposed stormwater disposal design would likely be acceptable, this should be confirmed through the analysis suggested by the council in their deferred commencement condition. If the analysis supports councils concerns, then the consent does not become operational.

1. Of the matters raised by the local residents, I accept that:

• any potential overlooking from unit 1 is likely to be minimal as the overlooking is from a bedroom and at a relatively acute angle, and
• the height of the retaining wall and fence, at some 2.85 m, is not optimal but would not be a reason to refuse or seek amendment to the application. Given the 2.8 m height of the fence. I do not envisage any privacy concerns to the property at the rear.

1. The orders of the Court are

1. The appeal is upheld.

2. Development Application No. 11/DA-277 for the demolition of all improvements and construction of 4 dwellings for seniors or people with a disability and strata subdivision at 50 Woronora Parade Oatley is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit A.

G T Brown

Acting Senior Commissioner