Orion Consulting Engineers Pty Ltd v Blacktown City Council

[2017] NSWLEC 1017

Land and Environment Court

New South Wales

Medium Neutral Citation:	Orion Consulting Engineers Pty Ltd v Blacktown City Council [2017] NSWLEC 1017
Hearing dates:	19 December 2016
Date of orders:	20 January 2017
Decision date:	20 January 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	1. The appeal is dismissed. 2. The Exhibits are returned.
Catchwords:	Modification of development consent – easements – registered drainage easement – inability to secure consent of tenants-in-common - timing of registration – common law right to discharge water – nuisance – natural use of land – surface waters – relevance of financial impact to exercise of discretion
Legislation Cited:	Conveyancing Act 1919 - s 88 K Environmental Planning and Assessment Act 1979 ss 5 (a) (ii), 79 C (1), 80 (3), 96AA, 97AA Land and Environment Court Act 1979 - S 34, 39(4), 40
Cases Cited:	1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685 Davies v Penrith City Council [2013] NSWLEC 1141 Dipper v Pittwater Council [2006] NSWLEC 273 Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; [2001] NSWLEC 70 Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 Gartner v Kidman (1962) 108 CLR 12; [1962] ALR 620 Municipal District of Concord v Coles (1905) 3 CLR 96 O’Brien v Pittwater Council (2016) 22 DCLR (NSW) 14; [2016] NSWDC 32 Orion Consulting Engineers Pty Ltd v Blacktown City Council [2016] NSWLEC 1435 Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248
Texts Cited:	Adrian Bradbrook, Susan MacCallum and Anthony Moore, Australian Real Property Law (4th ed 2007, Lawbook Co) Peter Butt, Land Law (5th ed 2006, Lawbook Co)
Category:	Principal judgment
Parties:	Orion Consulting Engineers Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Turvey To (Applicant) Scott Nash (Respondent) Solicitors: Baird Lawyers (Applicant) Bartier Perry (Respondent)
File Number(s):	2016/00361550

Judgment

1. This is an appeal brought under section 97AA of the Environmental Planning and Assessment Act 1979 (the EPA Act), against a deemed refusal of the Blacktown City Council (the Council) to amend a conditional development consent (Consent) issued to the Applicant on 21 September 2016 (Orion Consulting Engineers Pty Ltd v Blacktown City Council [2016] NSWLEC 1435). The modification sought is to defer the time by which a registered easement must be in place from the current requirement – prior to the issue of a construction certificate – to the Applicant’s desired timing, which is prior to the issue of the subdivision certificate. The Applicant’s timing would see the registered easement required towards the end of the development process as opposed to towards the beginning.

2. The Consent is for Torrens Title subdivision of land described as 181-213 Garfield Road East and 44 Campbell Street, Riverstone (Land), into 143 residential lots, 10 residue lots, associated earthworks, associated subdivision works, construction of new roads, demolition of existing structures, tree removal and site remediation (collectively, the Works). It is a significant development, and will create substantial new housing opportunities at a time when the provision of more housing is welcome.

3. The issue at the heart of this appeal is a narrow one. It is helpful to adopt the characterisation of the issue as articulated by the Council: “whether the requirements of conditions 7.10.1 and 7.10.2 of the Consent, relating to the registration of a drainage easement, should be satisfied prior to the issue of a construction certificate, or alternatively, whether they should be permitted to be satisfied prior to the issue of a subdivision certificate” (Council’s Outline of Submissions, 15 December 2016).

4. Both parties are in vigorous agreement regarding the objects of the EPA Act, including the objective of encouraging the promotion and co-ordination of the orderly and economic use and development of the land: s 5(a) (ii) of the EPA Act. However, they differ as to how in this case that object is to be achieved.

5. The following matters also fall to be considered:

• Is a registered easement required in the circumstances?

• If yes, at what point in time should it be obtained and registered?

• What rights, if any, of discharge of waters are there in this case?

• Is the financial hardship faced by the Applicant a relevant matter that can be taken into account, in weighing up the different considerations relevant to the application to modify the development consent?

Findings

6. A registered easement is required, and should be obtained prior to the issuing of a construction certificate – in other words, in accordance with the conditions agreed to by the parties at the time of the grant of the Consent.

7. There is no right under common law, insofar as it is concerned with the discharge of waters, for the Applicant to undertake the Works in the absence of a registered easement.

8. The financial hardship faced by the Applicant is a relevant consideration in the Court’s consideration of whether or not to modify the Consent in the terms sought in this appeal. However, it is the opinion of the Court that these economic considerations do not outweigh the hardship which would be caused to a non-party to these proceedings, namely the co-owners of the land to be impacted by the Works. Moreover, there are several other public interest considerations, including the orderly and economic use and development of the land, which sound against the Applicant’s position.

9. Accordingly, the Court declines to modify the Consent in terms requested by the Applicant. For the reasons set out in this judgement, this appeal must fail. I come to this decision with some reluctance, given the consequences both for the Applicant, and the potential social benefits for housing supply that will flow from the development, but come to it I must.

Definition of an Easement

10. Neither the Applicant nor the Council addressed the Court on this point. However, given the subject matter of this appeal, it is important to articulate the fundamental elements of easements.

11. In Municipal District of Concord v Coles (1905) 3 CLR 96, Barton J quoted the following definition of an easement:

A privilege without profit, which the owner of one neighbouring tenement hath of another… by which the servient owner is obliged to “suffer or not to do” something on his own land, for the advantage of the dominant owner: at 110.

12. Halsbury’s Laws of England describes it as

A right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner: quoted in Adrian Bradbrook, Susan MacCallum and Anthony Moore, Australian Real Property Law (4th ed 2007, Lawbook Co) at 731.

13. Peter Butt in Land Law (5th ed 2006, Lawbook Co) at 422 describes the four essential elements of easements thus:

• There must be a dominant and a servient tenement

• The easement must accommodate the dominant tenement

• The same person must not own and occupy the dominant and servient tenements

• The right claimed as an easement must be capable of forming the subject matter of a grant.

14. These definitions of “easement” make it clear that the servient land suffers a burden to the benefit of the dominant owner. In this case, as is set out in more detail below, the parties to the dispute previously reached an agreement whereby the (non-party) owners of the servient land (Lot 28) would not be required to suffer the burden (of the water discharge) without the benefit afforded them through a registered easement.

15. Due to the particular facts of the case – specifically, the difficulty in obtaining the requisite consent to register the easement – the Applicant has sought to change the terms of the arrangement.

Background to the Application

16. Development consent was issued for the Works on 21 September 2016 following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). Conditions 7.10.1 and 7.10.2 of the Consent require, amongst other things, that an easement be registered to drain water from the Land to the adjoining land to the north, Lot 28 DP 135206 (Lot 28) (the Affected Land) prior to the issue of a construction certificate (emphasis mine).

17. The Applicant applied to the Council on 13 October 2016 – three short weeks later - to have condition 7.10.2 modified in order to shift the timing requirement for the registration of the easement to a later time, specifically, prior to the issue of the subdivision certificate (emphasis mine). This amendment would allow the Works to commence without the requirement for the easement to be registered. This appeal is brought against the Council’s deemed refusal of that application.

18. Following the filing of this appeal on 2 December 2016, the Applicant sought and was granted leave by the Court on 8 December 2016 to amend the appeal to include condition 7.10.1, which similarly has the effect of requiring the easement to be registered prior to work commencing. The hearing of the appeal has been expedited.

19. For completeness, the conditions the subject of this appeal are reproduced below:

7.10 Adjoining Owners

7.10.1   Written permission from the affected property owners shall be obtained to:

discharge stormwater onto adjoining land

carry out works on adjoining land

drain the site across adjoining land

prior to the issue of any Construction Certificate. A copy of any such permission and evidence of the creation of necessary easements must be submitted to Council prior to the issue of any Construction Certificates.

7.10.2   The applicant is to submit to Council evidence of registration at Land and Property Information of a drainage easement over Lot 28 DP 135206 to benefit the approved development under DA-16-02734 prior to the issue of any Construction Certificate.

Power of the Court

20. Section 96AA of the EPA Act permits a consent authority to modify a consent provided the development to which the consent relates is substantially the same; appropriate notification has been given, including to objectors; and submissions have been considered: s.96AA(1). Relevant matters set out in s 79C (1) must also be taken into consideration in determining an application for modification of a consent.

21. The EPA Act further provides that an applicant who is dissatisfied with a consent authority’s determination of an application under s 96AA may appeal to the Court. In the present case, the appeal is brought against a deemed refusal by the Council of the application.

22. Section 39(4) of the Court Act sets out the power of the Court on appeals. In making a decision on an appeal, the Court shall have regard to the Court Act and other relevant legislation; any instrument made under any such Act; the circumstances of the case and the public interest.

23. The powers exercisable by the Court in this appeal are not in dispute, nor is its jurisdiction.

The Evidence

24. The Applicant read an affidavit of Mr Philip Byrum (affirmed 6 December 2016), an expert civil engineer and managing director of the Applicant. Attached to that affidavit are various technical reports and supporting documents. Mr Byrum’s company has been retained by the registered proprietor of the Land to design the stormwater management system to service the subdivision the subject of the Consent.

25. The Applicant also read an affidavit of Mr Wayne Bing Ding (affirmed 5 December 2016), the sales director of the company engaged to manage the marketing and sale of the Land.

26. The Council read an affidavit of Mr Christopher Wahbe (sworn 15 December 2016), the co-ordinator of Engineering Approvals, other than those parts that were objected to by the Council and that the Council said sought to draw legal conclusions.

Works required for the Subdivision

27. In order for works to commence, Mr Byrum has set out what needs to occur. The Applicant is to clear and strip the Land, which requires the issuing of a construction certificate. The following sequence of contract works is then:

1. Bulk Earthworks

2. Road Preparation

3. Waste Water and Services Crossings

4. Drainage

5. Road Construction

6. Services Completion

7. Topsoil Replacement

8. Landscaping and Stabilisation

Drainage Management

28. The following explanation and diagrams (at paragraphs 29 to 36) are taken from Mr Byrum’s affidavit.

29. The diagram below shows the existing drainage catchment plan, whereby water drains to Lot 28.

30. The approved development will involve construction works that will alter the natural topography and also increase the impermeability of the site upstream of Lot 28. Due to the variance in land form and increased runoff from the development of the site, an On-Site Detention Basin has been designed to attenuate flows such that post-development flows from the site will not exceed those of the pre-developed conditions.

31. One of the first steps in the bulk earthworks will be the construction of this basin in the area known as the Stage 5 area. The purpose of this basin is to detain all stormwater generated on the site and to control its release downstream to Lot 28.

32. Shown below is a diagram of the proposed stormwater basin which will provide interim stormwater management, and its location in the development.

33. The existing drainage catchment (undeveloped) is 2.119 hectares in size. After development, the drainage catchment area will be 7.05 hectares. Pre-development, the fraction of impervious area is estimated to be 3%; post-development, it is 85%.

34. The temporary detention basin will be located at the low point of the site. The basin will discharge to the existing overland flow path at the northern boundary of the site. The outlet freely discharges to the existing surface. This temporary basin will drain water from the development until a regional basin will be constructed.

35. The image below shows the drainage collection and flow under the proposed drainage catchment plan

36. Mr Byrum’s expert opinion is that post-development flows will not exceed (indeed, will be less than) pre-development flows both in terms of the volume discharged and the rate of discharge at the discharge location. The engineering work and calculations undertaken by Mr Byrum were not contested.

37. Submissions from the Council with respect to construction of the regional basin are that it can only be constructed when there is sufficient funding, which is being collected over time through developer contributions. Upon construction of the regional basin, the temporary basin can be decommissioned. However, there is no time estimation yet as to when this may occur. Thus, the “temporary basin” may be in place for some time.

38. In Court, it was agreed between the parties that although the post-development flows would not exceed the pre-development flows, this was referable to a moment-in-time calculation. Further, it was also agreed that the overall volume of water discharged post-development would be greater than the pre-development volume, as there is a bigger catchment area generating stormwater. As noted above, there is also a very significant increase in the amount of impermeable surface arising from the Works.

39. One of the problems with the Applicant’s proposal for amendment of the conditions, says the Council, is that starting from the earliest work, particularly with construction of roads, stormwater will be generated, requiring collection and release across Lot 28. The Applicant does not contest this fact.

40. Water quality is not in issue in this appeal. In answer to a question from the Court regarding safeguards around water quality at the discharge point, the parties provided the Court with an agreed statement to the following effect:

Condition 7.13.6 of the Consent requires the construction of a bio-retention filtration system, and that when constructed, it will ensure that the quality of water discharged to Lot 28 will meet all of Council’s water quality targets and measurements.

Registration of the Easement Not Achieved

41. The only allotment affected by the Works is Lot 28 (the Affected Land). The owners of the Affected Land are a married couple who are named on a title search as tenants-in-common to the property. The owners (referred to here for convenience as “the husband” and “the wife”) have separated, with the result, says the Applicant, that it has not been possible for the Applicant to obtain consent for registration of the easement from both parties.

42. The evidence on this crucial point is, to my mind, surprisingly scant, particularly given the criticality of the easement to the entire undertaking. Mr Byrum outlines efforts made in the following terms: he spoke with the husband three times between late September and 18 November, by telephone and in person; the husband indicated that he was prepared to grant the easement required, and has prepared a letter to that effect; the husband informed Mr Byrum that the wife no longer resides at the property, and he is currently uncertain of her whereabouts and unable to assist with facilitating any consent from her in regard to grant of the subject drainage easement; the husband was also unable to provide Mr Byrum with any contact details for the wife, with Mr Byrum being presently not aware of her whereabouts or how she might be contacted. Mr Byrum concludes with the statement that “due to personal circumstances of the owners of Lot 28 to date the applicant has not been able to secure the necessary agreements from both of them”. This fact, as pleaded by the Applicant, is plainly beyond its control.

43. From an evidentiary perspective, it must be said that the letter from the husband giving permission for the water discharge satisfies part of the requirement of condition 7.10.1, but is not the equivalent of an easement, and falls well short of it. At best it evinces the husband’s intention to do that which is necessary for the creation of an easement. It does not and cannot speak for the wife, the other tenant-in-common. It is this inability to obtain the requisite consent from both owners of Lot 28 which has brought the parties before the Court.

Is a Registered Easement Required? If so, at what point in time?

44. The simple answer to this question lies in the affirmative. The parties themselves have agreed that a registered easement is required. At issue is the timing.

45. At the point of obtaining the Consent, the Applicant accepted – and still continues to accept, albeit with some equivocation in argument – that an easement is required. Consent was granted on the basis that such an easement would be sought and put in place early in the process. Tellingly, this appeal is not founded on an application to modify the Consent so as to remove the requirement to obtain the easement; rather, the Applicant has elected to focus on the timing aspect of this requirement. Moreover, the Applicant pleads its case expressly on the basis that the easement registration is merely to be deferred.

46. The facts of the case support the requirement for a registered easement. The Applicant’s exercise of its rights under the Consent will have a direct impact upon the Affected Land, for a period of at least up to twelve months without a registered easement under the Applicant’s proposal (the time by which the subdivision certificate must be issued). (This timing presumes that a registered easement can be obtained.) Moreover, upon the issue of a construction certificate, impervious surfaces will be created which will generate an immediate need for stormwater control, comprising the temporary basin and drainage easement.

47. As noted above, the period of impact (of the water draining onto Lot 28) is currently open-ended, given that the regional drainage solution for Blacktown does not as yet have a start date.

48. An easement serves a purpose of notifying future owners of the subdivided land and Lot 28 of the existence of the right to drain over Lot 28. With respect to this notification aspect of the easement, while the Applicant notes the utility in an easement notifying future owners of the lots of the Land about rights to drain over Lot 28 (Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; [2001] NSWLEC 70), the Applicant contends in its submissions that the notification conditions are not presently required, and arguably may not be required at all

44. Council says that the question of notice for future landowners (as to the right conferred by the easement) is important, but not in this case front and centre. This seems to me to be the correct position – in other words, while the notification function served by an easement is important, it is not the overriding reason why an easement is required in these circumstances.

45. There is a related submission pressed strongly by the Council, with respect to the question of the assurance which a registered easement can provide. Council is concerned that the assurance afforded through a registered easement may never be provided, as the decision as to whether or not to grant an easement lies in the discretion of other decision-makers. Moreover, if the Applicant’s position were adopted (of deferral of the timing aspect), the Council says the Applicant’s position would create substantial and unacceptable uncertainty as to whether or not the drainage easement will ever be registered, for the reasons that the Applicant may be forced to make application elsewhere to obtain the easement, which application may or may not succeed.

46. Moreover, says the Council, the easement requirement could have been included as a deferred condition under s 80(3) of the EPA Act. (The response to this contention in part is that through the conciliation process Council in fact agreed to the consent conditions in their present form.) Were the easement requirement deferred to subdivision certificate stage, says the Council, this would delay the assurance of an easement even further, which would amount to a “new approach to planning in Blacktown”.

47. Accordingly, the Council’s view is that the assurance of an easement should be provided prior to the commencement of on-site construction.

48. As to whether or not the easement will ever be registered, the Applicant presses the point that the certificate of subdivision will not be able to be released until the registered easement is in place, were the Court to allow the appeal. That fact will effectively drive the outcome. In this regard, Council says the inability to sell the land (without the subdivision certificate) does not deal with the fact that the roads will have been built, and there is an immediate need to drain.

49. There is some force to the Applicant’s submission. However, it does not in my view displace the obligations that otherwise exist for the Applicant to have an easement in place prior to the commencement of the Works. An outcome-focussed condition such as is contemplated by the Applicant will not solve the fundamental problem it faces: that it cannot adversely affect another’s property rights without express permission or entitlement, which in this case finds expression through an easement. Put another way, if the Court were to grant the application, it would be doing so on the basis that the dominant tenement’s rights were to be given primacy over the rights of the servient tenement.

50. For these reasons, the Court finds that a registered easement is required to undertake the Works as proposed and as previously agreed between the parties; that is, prior to the issue of the construction certificate.

What rights, if any, of discharge of waters are there in this case?

The Applicant’s Arguments

56. In the absence of securing the registered Torrens Title easement, the Applicant seeks to rely upon the common law to allow discharge of waters. The Applicant says that the common law balances the rights of owners to do what they want with their land, while the remedies of nuisance and negligence can be invoked: Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 at [132].

57. Further, argues the Applicant, in the present circumstances, the owner of the lower-lying land is obliged to accept the flow of water through the existing overland flow path, and no liability is borne by the Applicant, as there is no increase of flows and no nuisance (Gales Holdings at [133]-[134], regarding the obligations of the owner of lower-lying land to accept the flow of water in a naturally occurring watercourse). Liability may attach to the owner if the owner causes surface water to flow in a greater or more concentrated way to the lower land: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [172]-[174]. Even if flows were concentrated, the Applicant says that the approved use would be a natural use of the Land, which would not attract liability: Gales Holdings at [135]. It is a natural use, says the Applicant, because it is the use envisaged by the planning scheme, planning controls and the approval.

58. The Applicant says that while there is no express right to drain water from the Works, the common law will not stop the owner of higher-lying land from draining to lower-lying land as a result of artificial works, if the result is not a more concentrated flow (emphasis mine):Gales Holdings at [133] – [135].

59. If a further right is needed, submits the Applicant, it will still be created through registration of the easement – at a later point in time. Further, in the present circumstances, “the “orderly… development of land” is achieved by modifying the condition as sought, as it will not impact on the adjacent land in terms of stormwater drainage; will not alter the rights that already exist at common law; will not remove the requirement for creation [of] the (additional) easement; and will not leave future purchasers without notice of the rights to be created” (Applicant’s Outline of Written Submissions in Reply, 19 December 2016).

60. In addition to these arguments, the Applicant relies upon the discretionary matter of costs or possible losses the Applicant will undoubtedly suffer, on the uncontested evidence. This is discussed further below.

The Council’s Arguments

61. The Council does not accept these arguments.

62. The Council says, firstly, in relation to water flows, that whether or not the post-development water flows will not exceed the pre-development water flows is irrelevant. The reason the flows will not exceed pre-development flows is due to the implementation of the drainage scheme required under the Council’s DCP (which scheme requires a temporary basin and discharge point through Lot 28).

63. The drainage easement is necessary. The drainage scheme will collect all stormwater captured on site and re-direct the flow to a single discharge point across Lot 28. Whether or not a private nuisance is created is not relevant to the question of whether or not an easement is required.

64. The Council’s characterisation of Gales Holdings in the context of this case is this: the question is not whether or not there is a nuisance, but whether or not there exists a right to drain. Council does not accept that the Applicant has existing rights to drain over Lot 28.

65. The Council submits that the post-development flow is an alteration of the natural flow, due to the artificial discharge of water following on properties, to the discharge point above Lot 28.

66. The Council relied on O’Brien v Pittwater Council (2016) 22 DCLR (NSW) 14; [2016] NSWDC 32 which found that the Council may be liable for the concentration or alteration of the natural water flow: at [69]. In that case, the District Court did not find that the land in question satisfied the elements of a bed, banks and a regular flow of water so as to constitute a natural watercourse. Rather, “there existed only a drainage depression where water flowed in times of rain. It follows that the features of Mrs O’Brien’s land were not such as to allow Council to direct increased quantities of water onto her property”: at [76].

67. As to whether or not there is a natural watercourse, the Council referred to Windeyer J in Gartner v Kidman (1962) 108 CLR 12 at 27; [1962] HCA 27:

The depressions which provide the natural course or outlet for [surface water flooding] may be called watercourses. But the law treats such valleys and depressions very differently from watercourses that have the qualities of rivers and streams.

68. A distinction is thus drawn between natural watercourses and surface waters with greater volumes flowing through them, which latter description is the situation in the present case.

Findings

69. I concur with the Council’s arguments. While there may be occasions under the common law where it is permissible for water to be discharged from one property to another as of right, this is not one of them.

70. Firstly, whether or not a private nuisance is created or not is not relevant to the question of whether or not an easement is required. “Acts necessary for the ordinary use and occupation of land do not constitute nuisance”: Gales Holdings at [137]. “However, such acts must be done in a reasonable and proper manner and not involve an unnatural or unusual use”: Gales Holdings at [137], relying upon Gartner v Kidman (1962) 108CLR 12 at 44.

71. In this case, while the Applicant contends that the use is “natural” because of matters including its Consent and adherence to the planning controls, an integral part of that use as approved by the Council is the registration of the easement.

72. Further, riparian rights attach to the flow of natural watercourses such as rivers or streams, but not to the flow of surface waters: Gales Holdings at [132] and [133], and O’Brien at [72]. Riparian rights are not the issue in this case, a fact that both parties acknowledge. In the present case, the waters in question are surface waters, as they run across the surface of the land via a naturally-occurring depression.

73. In discussing surface waters in Gales Holdings, Emmett JA held that:

“Where there are two contiguous parcels of land and one is higher than the other, the higher proprietor is not liable merely because surface water flows naturally from its land to the lower land. Surface waters, while distinct from natural watercourses, are those that flow naturally onto land, as distinct from water artificially brought to or concentrated on land and allowed to escape”: at [135].

74. In Gartner v Kidman Windeyer J stated:

If a more concentrated flow occurs simply as a result of the “natural” use of his land by the higher proprietor, he is, generally speaking, not liable. What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased: at 37.

75. In the present case, while the water flow at any given point in time may not be greater than that which exists prior to the commencement of any Works, in my view it cannot be said that water is not artificially brought to or concentrated on land (for example, through construction of the stormwater retention basin) and allowed to escape. I accept the Council’s submission that water will be artificially brought to Lot 28, which would not otherwise occur but for the Applicant’s proposed actions under its Consent.

76. The following statement from Windeyer J in Gartner v Kidman at 37 is apposite to this case and is a neat summary of the law:

There is no right on the part of one landowner to drain water from his land over that of his neighbour without the latter’s consent. This rule prevents the gathering of water into a body and casting it onto the lower owner, or collecting it in artificial ditches for that purpose, or changing the course of drainage.

77. I find that the Applicant does not have a right at common law to discharge waters onto the Affected Land as would be a consequence of the commencement of the Works.

Is the Financial hardship faced by the Applicant a relevant matter that can be taken into account, in weighing up the different considerations relevant to the application to modify the development consent?

78. The Council relies on Davies v Penrith City Council [2013] NSWLEC 1141 for the proposition that anthropocentric considerations must not be permitted to intrude into or inform the planning merit assessment process: at [116]-[121]. However, the Court accepts that the facts in that decision (regarding a personal factor of a person’s disability in connection with the location of a garage) are suitably different from the current facts as to be distinguishable.

79. Moreover, the Court is obliged under s 79C(1) of the EPA Act to consider a range of matters, including “the likely impacts of [the] development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”: s 79C(1)(b). Such impacts do not exist in a vacuum.

80. The consequence of the Applicant’s inability to secure the owners’ agreement (and therefore registration of the easement) is that the Works are unable to proceed. Mr Ding outlines in some detail what the economic consequence of this will be for the Applicant (and thus potentially for the development). The evidence for the Applicant shows that a delay in commencement of construction will cost the Applicant a considerable amount – not only the holding and associated costs, which are estimated to be in the order of $550,000 - $600,000, but further consequential costs. These consequences include delay in completion of the Works; delay in completion of contracts for sale of future subdivided lots and financial loss in the form of holding costs and potential loss of sales. According to Mr Byrum, if the preferred tenderer (whose price if very favourable to the Applicant) is unable to be engaged prior to Christmas, “I apprehend that the entire civil works program … will be significantly delayed, probably by at least 3 months, and likely to ultimately be at higher cost to the applicant”.

81. The Applicant says that due to contractual provisions the certificate of subdivision must be issued by December 2017 at the latest. If not, purchasers may exercise their right to rescind their contracts, of which 61 have to date been exchanged. Such contract rescissions could lead to a consequential loss of income, and loss of opportunity not to mention the further costs of marketing and holding the land.

82. In relation to financial impact, the Council makes the following submissions: notwithstanding “having some sympathy for what might be described as the Applicant’s ‘personal position’ as set out [in an affidavit], that position cannot be used, and should not be permitted to be used, to usurp a proper planning outcome which is presently reflected in the agreed conditions by dint of the s 34 agreement entered into between the parties”.

83. I do not doubt the Applicant’s statements regarding potential financial impact, nor is their veracity challenged by the Council. Indeed, submits the Council, incurring costs is “part and parcel of the risk of developing land”. However, there is disagreement between the parties as to relevance and the weight to be ascribed to them.

84. The Council’s view in this respect is that the circumstances the Applicant faces are not hardship, but an incidental fact, and a risk that developers take. To give that situation any weight at all casts aside the proper development of land in favour of commercial considerations.

85. The Applicant presses the relevance of the financial impact as a relevant consideration, referring to the Court’s discretion, and its obligations to consider the circumstances of the case. In so doing it relies upon the decision in Dipper v Pittwater Council [2006] NSWLEC 273, a decision of the Chief Judge of this Court, for the proposition that, speaking generally, personal considerations (such as hardship) can be taken into account as a discretionary matter in considering planning matters. I respectfully concur with this view, and have taken the Applicant’s financial position into consideration as a relevant matter for consideration.

86. Having considered the evidence, the circumstances of the case, the public interest and the submissions of the parties, I have formed the view that the potentially negative economic impacts for the Applicant, while significant and regrettable, do not outweigh the necessity for a registered easement to be in place prior to the commencement of the Works. Whilst I find that the financial impact is a relevant consideration, this does not outweigh the legal obligations which otherwise attach to the Applicant in this case, nor does it outweigh other matters (set out below) of public interest.

87. What the Applicant seeks is effectively to reduce its financial risk by transferring some risk to the owners of the Affected Land, who are not parties to this proceeding. The Court cannot sanction such an approach in these circumstances.

88. This application is made in the situation where, as matters presently stand, a registered easement has not been able to be obtained. In this case, I am not being asked to consider (and indeed am unable to) whether the easement should be imposed on the Affected Land. Instead, I am asked to exercise discretion to modify the Consent in the manner sought by the Applicant, to allow the Works to commence in the absence of a registered easement, which easement the Applicant says will be secured prior to the issue of the subdivision certificates.

89. In seeking the exercise of the Court’s discretion, the Applicant has the persuasive burden to demonstrate to me amongst other things that it has taken all reasonable steps to secure the registration of the easement. It is appropriate that the Applicant - in terms of the easement, the dominant owner - bears this persuasive burden, as the very essence of an easement is that “the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner”. It is not clear on the evidence that the Applicant has exhausted all opportunities, or made all reasonable attempts, to obtain the easement. Thus, this burden has not been discharged.

90. In addition, I have considered the Applicant’s proposal to commence proceedings to seek registration of an easement within either three or six months from the date of issue of a construction certificate. However, this does not cure the fundamental problem for the Applicant that it needs the permission of the owners of the Affected Land to discharge water over it in the manner intended.

91. I have also taken account of the fact that the period of time for which the affected land will be impacted by the flow of water is open-ended, given that the regional drainage solution for Blacktown has no confirmed start date. The discharge of waters over the Affected Land will be both for an open-ended period of time, and will involve a greater amount of water than presently drains over the Affected Land. While the rate of flow of water to the Affected Land may not be greater after the Works than before the Works, nonetheless there will simply be more of it as a result of the Works (occasioned in part by the vast increase in impermeable surfaces).

92. I also accept the Council’s submission that to modify the Consent as sought by the Applicant would create an unacceptable level of uncertainty, the uncertainty being that there is no guarantee that a registered easement is able to be secured. This uncertainty could lead to two unacceptable outcomes. Firstly, it would be a wholly unsatisfactory outcome if, upon completion of the Works and all that that involves, the subdivision certificate was unable to be issued due to the absence of a registered easement. Secondly, it would be an unacceptable outcome for the owners of the Affected Land to be impacted by the Works, without the benefit of the easement. It is not as if the Works could be undone to stop the impact, once they had commenced. This would not be feasible. The owners of the Affected Land, in this scenario, would be left in an unprotected position. I agree with the Council that the appropriate time at which assurance ought to be provided is prior to the commencement of the Works.

93. It may be that an easement may be able to be secured upon the making of further inquiries, or upon the submission of appropriate evidence to another Court at another time, but that is not necessary for me to decide.

78. As to the orderly and economic use and development of the land, the Applicant asserts that a decision not to modify the conditions the subject of this appeal will work against this objective.

79. I do not accept this submission. The orderly and economic use and development of the land requires sufficient certainty. While it would be the best outcome for the Works to be able to be commenced with alacrity and for actual and potential losses not to be incurred, these factors do not displace the obligation in these circumstances for a registered easement to be in place prior to the issue of a construction certificate.

Utility of Additional Consent Conditions

96. Relying upon the discretion available to the Court and referred to in 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685 (McClellan CJ) the Applicant also made various suggestions with respect to additional conditions it would accept were the Court so minded to impose them: to construct the filtration system at the same time as the detention basin; and in answer to the “lack of certainty” argument proferred by the Council, to apply for an easement via the appropriate jurisdictional route within either six or three months of the date of commencement of the construction certificate.

97. As to the first matter, the Court makes no finding and no order in this respect. In the absence of evidence and submissions, the Court relies upon the agreement reached between the Council and the Applicant at the s 34 conciliation conference (as reflected in Orion Consulting Engineers Pty Ltd v Blacktown City Council) as being appropriate to manage the water quality obligations in connection with the Works.

98. With respect to the second matter – the undertaking to commence proceedings to seek an easement – this does not cure the fundamental issue, that an easement is required in the circumstances prior to the discharge of waters across Lot 28 upon commencement of the Works. Moreover, the Council’s position is that there is no assurance that an application for an easement would be granted, and such an undertaking (to seek registration) has no utility. Given my decision, it is not necessary for me to speculate as to the prospects of success for the Applicant in this respect.

Options for the Applicant

99. At the risk of seeming trite, or at least stating the obvious, it seems to me that the Applicant has the following options:

• Obtain the agreement of both the owners of Lot 28 and have the easement registered, thereby allowing (all other things being equal) a construction certificate to be issued

• Apply to the appropriate Court (either under section 40 of the Court Act, or section 88K of the Conveyancing Act 1919) and ask the appropriate Court to create an easement

• Design an alternative engineering solution which does not rely upon the discharge of water to another’s property where (for whatever reason) permission for that discharge has not been obtained.

100. As to this third option, in answer to a direct question from the Court as to what alternatives had been explored to the release of water across Lot 28, the Applicant was uncertain as to whether the scheme could be redesigned, and held no instructions on the point. Thus on the evidence, there is no alternative. Had the Applicant been able to demonstrate that an alternative disposal method could be employed – for example, through collection and trucking of stormwater via an appropriately licensed waste water carter – the outcome of this appeal may have been different.

Orders

101. The Court orders:

1. The appeal is dismissed.

2. The Exhibits are returned.

Decision last updated: 20 January 2017