Pearson v Bega Valley Shire Council

[2022] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pearson v Bega Valley Shire Council [2022] NSWLEC 1063
Hearing dates:	Conciliation conference held on 31 January 2022
Date of orders:	8 February 2022
Decision date:	08 February 2022
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	See orders at [11]
Catchwords:	ORDERS – drainage works – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 8.18
Category:	Principal judgment
Parties:	Christopher Pearson (First Applicant) Jennifer Confeggi (Second Applicant) Bega Valley Shire Council (Respondent)
Representation:	Counsel: C Pearson (Litigant in Person) (Applicants) M McMahon (Solicitor) (Respondent) Solicitors: M E McMahon & Associates (Respondent)
File Number(s):	2021/275091
Publication restriction:	No

Judgment

1. COMMISSIONER: Bega Valley Shire issued Development Control Order No. 11 to the applicants, who own land at 10 Oakleaf Place Millingandi.

2. The terms of the Order required the owners to do the following:

1. Bitumen sealing of the driveway for a length of 5m form the existing bitumen sealed road edge fronting 10 Oakleaf Place, Millingandi.

2. Installation of an energy dissipation system at the driveway outlet. Works should include;

- Remediation of existing scoured area with suitable fill material

- Laying of Geotextile fabric and placement of a minimum 200mm diameter rock over the fabric

- The energy dissipator should be a minimum of 2m in length by 1.6m in width

- Remaining areas should be topsoiled and grassed

- Reshaping of the berm between the stormwater outlet on the topside of the driveway to the satisfaction of Council.

3. The reasons for the Order were that a planning approval had not been complied with. Works have been carried out on Lot 5 DP 1233469 to provide driveway access which included the removal of an existing formed surface drain constructed as part of the private road construction within the right of access created by registration of DP 1233469. This private road was required as part of the subdivision approval created by DP 1233469 by MR 06-0032.

4. The removal of the surface drain has changed the course of the surface water flow along this section of the private road resulting in siltation and erosion.

5. The applicants contended that the works as described by the Council had been implemented and the failure to provide a dissipator further upstream of the driveway crossing contributed to the problem or erosion and siltation. Accordingly, they appealed the Order pursuant to the provisions of s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

6. Alternate works have been agreed between the parties and an amended Order is proposed.

7. An agreement under s 34(3) of the LEC Act has been reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal, to revoke the original Order and substitute a new Order in the agreed terms.

8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons.

9. Section 8.18(4) of the EP&A Act is in the following form:

On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

10. The terms of the agreement result in the development control order being substituted with another order and the agreement is therefore consistent with the provisions of cl 8.18(4)(c).

11. The Orders of the Court are:

1. The appeal is upheld.

2. Pursuant to s8.18(4)(c) of the EP& a Act, the Court amends the Order the subject of this appeal in the following terms:

1. The following work to be completed within 90 days of the Order:

Berm adjustment – Reshape existing berm upstream of the driveway crossover at 10 Oakleaf Place, Millingandi to ensure that surface waters discharged from the upstream drain arrestor are directed to the pipe installed under the driveway crossover at 10 Oakleaf Place, Millingandi to prevent flows onto the right of carriageway road. The berm will be adjusted to create a 1.5m wide and 200 mm deep swale between the outlet of the Oakleaf Place culvert and the inlet of the pipe beneath the driveway crossover. The finished surface will be a geofabric base backfilled with 200 mm aggregate.

Energy dissipater – Installation of an energy dissipation system from the discharge point of the driveway culvert outlet at 10 Oakleaf Place, Millingandi for a distance of at least 4m and with a minimum width of 1.6m. The dissipation system shall be constructed to the following specification:

Installation of geotextile fabric base.

Backfill of 200mm diameter rock over geotextile fabric for a further downstream distance to abut the existing vegetation in the drainage line or 4m, whichever is the greater.

2. The following work to be completed within 120 days of the Order:

Driveway crossover – Installation of Diamond Grid or equivalent driveway crossover in lieu of sealed bitumen for a distance of at least 5m from the existing bitumen formed road fronting 10 Oakleaf Place, Millingandi. The width of the existing crossover may be retained. The Diamond Grid system shall be backfilled with 7-10mm clean aggregate.

……………………….

Sue Morris

Acting Commissioner of the Land and Environment Court

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Decision last updated: 08 February 2022