New Age Constructions (NSW) Pty Limited v Ryde Council

[2007] NSWLEC 425

Land and Environment Court

of New South Wales

CITATION:

New Age Constructions (NSW) Pty Limited v Ryde Council [2007] NSWLEC 425

PARTIES:

APPLICANT
New Age Constructions (NSW) Pty Limited

RESPONDENT
Ryde Council

FILE NUMBER(S):

10175 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Villa house development, linear separation to allow villa developments, access gradients, on-site parking, drainage disposal pumping/downstream easements

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ryde Planning Scheme Ordinance
Ryde Development Control Plan 2006

DATES OF HEARING:

09/07/2007

 
DATE OF JUDGMENT: 

19 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Duggan, barrister
Instructed by Ms A. Bowen
of Shaw Reynolds Bowen and Gerathy

RESPONDENT
Mr M. Wright, barrister
Instructed by Mr J. Strati

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 July 2007

10175 of 2007 New Age Constructions (NSW) Pty Limited v Ryde Council

JUDGMENT

1 This appeal was lodged against councils’ deemed refusal of a development application for 3 attached dwellings at 130 Ryde Road, Gladesville. A number of issues were identified for the appeal, which can be summarised as follows:

• Separation distance to other villa unit development and impact on streetscape,
• Adequacy of drainage control and discharge arrangements,
• On-site parking and access arrangements.

The site.

2 The site is described as Lot A in DP 420590. It has a 21.64m frontage to Ryde Road and a total area of 999 sq m.

3 The land slopes from the Ryde Road frontage towards the rear properties that front Albert Street. There is a fall of approximately 4m.

4 A 2-storey brick and tile dwelling is erected on the site and there is a mature Cook Pine (approximately 14m high) located on the front northwest corner of the site.

5 This proposal involves:

• Demolition of the existing 2-storey dwelling house, internal retaining walls and associated earthworks,
• The erection of 3 attached dwellings down the lot following the contours and comprising;
• Front dwelling (Villa 1) – 2-storey dwelling (7.6m to ridge) containing 4 bedrooms, ancillary rooms and 2 car parking spaces,
• Middle dwelling (Villa 2) - single storey (5-5.6m to ridge) with 3 bedrooms, ancillary rooms, deck with timber pergola at the rear and 2 car spaces,
• Rear dwelling (Villa 3) - single storey (5-5.6m to ridge) with 3 bedrooms, ancillary rooms, deck with timber pergola at rear and south side and 2 car parking spaces.
• Vehicular access is via a 3m wide driveway along and setback approximately 1.2m from the western boundary that requires removal of the Cook Pine.
• Landscaping of the site.
• The disposal of stormwater from the site was initially proposed via a 900mm easement through 23 Albert Street that the rear of the property. However, due to the inability to obtain owners consent, an alternative scheme proposing the collection of stormwater in on-site detention tanks, which is to be pumped to the upper level Ryde Road.
• Community titling of the completed development.

Planning controls

6 Ryde Planning Scheme Ordinance (RPSO). Under this instrument the land is zoned Residential 2(a) and the proposal is permissible with consent. The provisions of clause 56A apply in respect of urban housing.

7 Development Control Plan 2006 (DCP). This DCP provides the guidelines, objectives and controls relating to the future development of the City of Ryde. Part 3.6 deals with urban housing and includes the following guiding principles:

• providing a medium density housing form within the City of Ryde which is compatible and sympathetic with conventional detached dwelling houses while maintaining the existing character of residential neighbourhoods;
• spreading the increasing population densities over all residential areas within the City rather than concentrating such increases in any one area;
• preserving and enhancing existing residential amenity of the City;
• ensuring no adverse environmental impacts such as loss of remnant vegetation and other significant vegetation or adverse impacts on heritage items or conservation areas occurs.

8 Part 2.4 contains the following Linear Separation controls for medium density developments:

a. Urban Housing developments in the Residential A zone must be separated from other Urban Housing, Villa Homes and Duplex Building developments in accordance with the following:

If an Urban Housing development, Villa Home or Duplex building is erected, or it is permitted by a development consent, on an allotment within a frontage to a street or road within the Residential ‘A’ zone, the Council will not consent to another Urban Housing development on another allotment with frontage to that same street or road, in the same block unless the two allotments are separated by distance of at least:

(a) Twice the distance of the frontage to the street of the existing or approved villa, duplex or urban housing development,

Or

(b) Twice the distance of the frontage to the street of the proposed urban housing development,

whichever is the greater distance

9 Part 8.2 contains the stormwater management controls with the stated objectives to:

• encourage consideration of Ecologically Sustainable Development and Catchment management while providing requirements for water management when developing a site.
• ensure adequate detention of stormwater on site, as a minimum, and integrate quality treatment where possible.
• improve water quality within the City of Ryde and to the receiving waters (Lane River and Parramatta River).
• to ensure no increase (and where reasonable a reduction) in the frequency and adversity of flooding…

10 The DCP requires multiple occupancy developments to provide on site detention. Section 4.9 then the deals with drainage from properties below street level, whereby:

Council will generally not approve stormwater systems, which drain against the natural grade of the land. Where the property falls away from the road frontage and the property does not have the benefit of an inter-allotment drainage easement or access to Council's drainage system, Council shall require the owner to obtain an appropriate drainage easement through the adjoining private property. This will allow the site to discharge its stormwater by gravity…

11 Section 4.11 provides the following controls on the use of pumps:

Pumps may only be used to drain seepage and a minor amount of direct run-off from a basement car parking area. The area-directing run-off to the pumped system shall not be greater than 10% of total basement area…

12 Section 4.13 deals with ‘piping the against the natural grade’ as follows:

The drainage layout should, where possible, follow the natural fall of the land. Council will only approve systems that drain against the natural grade of the land where:

• Council has assessed that the receiving drainage system can accept the additional run-off from the new catchment area without having an adverse impact on downstream property and/or public infrastructure (this will generally require a drainage study by a suitably qualified engineer to be submitted in conjunction with the application); and
• Downstream property owners have indicated the unwillingness to grant easements that would permit the property drainage system to follow the natural fall of the land.
• The roof gutters, downpipes and drainage systems must be designed to cater for a 1 in 100 year ARI storm events.

13 Section 4.15 deals with ‘overland flow paths’ on the following basis:

Overland flow paths designed to contain a 1 in 100 year ARI storm flow are to be provided over all pipelines not designed to cater for this flow...

The evidence.

14 Evidence on the planning issues was presented by Mr K Nash (consulting town planner for the applicant) and Mr D Smith (consulting town planner for the Council), resulting in the joint planning report - Exhibit 6.

15 Engineering evidence on the access, parking and drainage issues was presented by Mr M Nguyen (Councils’ engineer) and Mr S Healey (applicant's consulting drainage engineer) and Mr A Morse (applicant's consulting traffic engineer).

16 An objection was received from Ms E Papavasiliou, neighbour from 23 Albert Street. She expressed concerns about the minimal setback from her common, rear boundary with the development, resulting in a lack of privacy and the inadequacy of the proposed trees and shrubs along this boundary. She also stated that she was not agreeable to an easement through her property.

17 In response to the issues raised and objections, the applicant undertook a number of amendments to the proposal and this included better of detailing of the proposal, to enable an adequate s 79C assessment. Consequently, the planners addressed the ‘linear separation’ control for villa type developments. They agreed that there is another villa development at 136 Ryde Road, which has a separation distance of 36m. Application of the cl 2.4 DCP control would require a separation in the order of 43.2m, resulting in a non-compliance of 7.28m.

18 According to their assessment of the proposal, the planners agree that this order of non-compliance is not significant and that the proposal will not cause an unacceptable impact on the streetscape. From my observations at the view, I accept this opinion that the proposal has sufficient separation to achieve the desired future character of the area and the streetscape impact is acceptable, so that the proposal does not warrant rejection on these grounds.

19 The further detailing included cross-sections with levels of the proposed courtyards to enable an assessment of privacy and visual impact issues. From this, the planners agree that the amount of cut and fill was acceptable and that these initial concerns could be covered by conditions consent. I rely on this evidence that the levels of the courtyards, together with complimentary landscape planting, result in reasonable levels of privacy and visual impacts for the proposal and that appropriate conditions of consent be imposed.

20 The next issue concerned access and parking arrangements. Mr Nguyen expressed concern about the driveway gradient transitions due to the existing low-level footpath and internal slope of approximately 7.5%, in respect of possible ‘bottoming’ of vehicles. However, Mr Morse provided additional sections to show that with minor regrading of the footpath area, a satisfactory transition could be achieved to allow reasonable access.

21 The applicant amended the parking arrangements by shifting the second space for the front and rear units, so as to improve on-site manoeuvrability to an acceptable level. However, this amendment resulted in a tandem arrangement for the middle villa 2, comprising 1 garage space and 1 open car space with a length of 10m.

22 Mr Nguyyen said that this did not comply with the DCP, which relies on the provisions of AS 2890.1, wherein clause B4.2 requires a parking space length of 5.4m based on a B99% vehicle length of 5.2m and adding another 0.2m positioning allowance. Accordingly he says that a total length of 10.8m (2x5.4) is required.

23 Against this, Mr Morse considers this unreasonable and his opinion is that in these circumstances the provision of car spaces to accommodate 2 x 85th percentile vehicles (i.e. a typical Ford Falcon of length 4.91m) is satisfactory.

24 Having considered the evidence on this matter, I am satisfied that the proposal can accommodate the B99% vehicle in the garage, together with an open space of 5m for any second vehicle of B85% classification. In my assessment, this represents a reasonable application of the ecologically sustainable development objectives by discouraging occupants of these smaller villa homes from relying on 2 larger private vehicles, particularly when alternative public transport is available in Ryde Road. This means that the total parking length for villa 2 is 10.4m, with 0.4m protruding beyond the building line and conditions of consent can cover this.

25 The threshold issue then concerns the control and discharge of stormwater from the site. The applicant has incorporated on-site detention as required by the DCP but has been unable to obtain a downstream easement to allow discharge of stormwater by gravity. Consequently, the proposal is for the front dwelling to have a charged system disposal into Ryde Road, together with the contents of the on-site detention tank also being pumped into Ryde Road. The system is to be backed up by a reserve diesel pump, to operate in emergency power blackout situations.

26 Having considered the competing evidence on this issue, it is apparent that the planning controls do not support the use of pumps to facilitate the piping of stormwater against the natural gradient of the land, particularly when it is to be disposed of in another sub-catchment area.

27 In the subject matter, the pumped water will discharge into the underground pipe drainage along Ryde Road, which Mr Nguyen says is significantly overloaded and currently unable to accommodate 1 : 5 ARI design, storm events. Therefore he does not support the proposed introduction of more water into this drainage line because it is likely to exacerbate flooding and surcharge problems along Ryde Road. This is likely to occur due to the low-level footpath, which contains a separate pitted drainage line that is subject to surcharge and likely to contribute to stormwater overflows into the private properties.

28 Against this, I note Mr Healeys’ evidence that the DCP allows for the pumping of water against the natural gradient, where downstream easement cannot be obtained, as is the case here. Furthermore he says that taking into account the amount of on-site storage and its rate of discharge into Ryde Road, any drainage/flooding impacts are likely to be low.

Conclusions

29 The resolution of this issue is made more difficult because there is no overall drainage strategy for this catchment area, which is complimentary to the zoning controls. These zoning controls envisage some change in the character of the area by way of medium density type developments. Consequently, some change in stormwater run-off pattern and rates is likely to occur. However no coordinated drainage system is available, despite s94 contributions been levied in the sub catchment area.

30 Insofar as the DCP controls prefer gravity discharges via easements through downstream properties wherever possible, this outcome causes some difficulties in the current circumstances because the existing drainage infrastructure in the subject sub-catchment area (i.e. downstream of Albert Street) is significantly overloaded.

31 Notwithstanding this, it seems to me that the public interest is well served by retaining and controlling the rate of any stormwater discharges into the same catchment area, rather than pumping it into another sub catchment area in Ryde Road, where the drainage infrastructure is overloaded. Whilst the overall outcome of this pumping may be insignificant as stated by Mr Healey, no detailed drainage modelling or calculations were presented to the Court, as required by the DCP. In the absence of any calculations, I am not persuaded to set aside the DCP provisions.

32 Accordingly, taking into account the aspects of ecologically sustainable development for the impacts of stormwater disposal, involving consideration of reliability, energy use and possible impacts on another sub catchment area, I consider it preferable that if this development is to proceed, its stormwater should be discharged by gravity into the same catchment area, in accordance with councils’ development controls. Such discharge would be on the basis that the on-site detention is of sufficient capacity to reduce the rate of discharge to below the current rate and consequently provide a marginal improvement in downstream drainage flows and flooding impacts.

33 This requires the acquisition of a downstream easement, which I understand from the evidence, would be approximately 900mm wide to accommodate a stormwater pipe with a diameter of approximately 200mm. It appears from the view, that there are feasible options to achieve this outcome, subject to appropriate arrangements and compensation to the downstream property owners. In the absence of any compelling evidence regarding exceptional circumstances preventing the acquisition of a drainage easement, I consider it reasonable for the applicant to pursue this option.

34 As I have stated previously, the amended plans satisfactorily addressed the privacy impacts arising from the proposed courtyards, the access arrangements into the development and parking provisions. Therefore I am satisfied that this proposal merits conditional consent, including conditions requiring acquisition of a downstream drainage basement, which I am satisfied is reasonably necessary for this otherwise complying development to proceed. This can be covered by way of a deferred commence condition and subject to the resolution of other detailing conditions, the Court intends to make the following orders.

Court Orders

1. The appeal is upheld.

2. Development consent is granted to DA 997/2006 for the demolition of an existing dwelling, construction of three attached villa units and subdivision at 130 Ryde Road, Gladesville subject to the conditions in Annexure A.

3. Exhibits may be returned except for 1, 2, 5, 6, 7, A, B, E, F and G.

___________________

R Hussey
Commissioner of the Court
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