Stratford v Manly Council

[2006] NSWLEC 703

Land and Environment Court

of New South Wales

CITATION:	Stratford v Manly Council [2006] NSWLEC 703
PARTIES:	APPLICANT Trisha Stratford RESPONDENT Manly Council
FILE NUMBER(S):	10583 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Stormwater detention
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Development Control Plan for the Residential Zone 2001
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	25 October 2006
EX TEMPORE JUDGMENT DATE:	10/25/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr K Webber, solicitor Wilshire Webb RESPONDENT Mr S Griffiths, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

25 October 2006

06/10583 Trisha Stratford v Manly Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 concerning the refusal by Manly Council (the council) on 29 June 2006 of Development Application 85/06 for additions and alterations at 164 Pittwater Road, Manly (the site).

2. The matter came to the Court on the basis of proposed consent orders (subject to a contest as to the inclusion of several conditions relating to stormwater disposal).

3. I have had the assistance of evidence from Mr Mark Robinson, a Court-appointed planner and heritage consultant, as the original proposal involved additions and alterations which the council considered were inappropriate as the house on the site is located in a conservation area and provides some contribution to that heritage conservation area.

4. As a result of Mr Robinson’s preliminary report, the applicant has amended the plans significantly – including the elimination of the proposal to use the alterations and additions for the purpose of creating a second dwelling under the “family flat” permitting provisions of the council’s planning instruments.

5. In that regard, I note that it is intended by the proposed conditions of consent, which are agreed between the parties, that condition 2 would require the fire rated wall on the plans between the kitchen and the living area to the rear of the premises to be removed and that that plan amendment would be to the satisfaction of the relevant senior officer of the council. I am not prepared to grant orders in these proceedings absent the submission of further revised plans that in fact incorporate the removal of that wall, that being a minor matter of plan amendment. It is of some importance, in my view, that accurate plans on a significantly initially contested matter should be available on the Court’s file.

6. As to other matters arising from the plans, I am satisfied, on the material now before me, that the two windows that are proposed to be added to the northern elevation of the property (which are in reasonably close juxtaposition with the property immediately adjacent) are appropriate.

7. With respect to the proposed new ground floor window, there is an approximately two metre high fence along the boundary and there is therefore no opportunity for overlooking from the site to the living or dining rooms of the adjacent property.

8. With respect to the proposed new first floor window, I am satisfied that the angle of observation from this window (being both oblique and significantly downward) would mean that any observation into either the living or dining rooms of the adjacent property will be of a small floor area of those rooms; at a significantly acute angle; and only from a bedroom on the site.

9. For those three reasons, I am satisfied that the degree of overlooking from this window is acceptable and that no modification to the plans by way, for example, of frosted glazing would be required.

10. The remaining matter that is in contention concerns the question of whether or not a number of conditions dealing with stormwater disposal are appropriate. These would require either an on-site stormwater detention or on-site stormwater retention system to be provided in the property in accordance with the council’s Stormwater Disposal Manual (the manual). The election would lie with the applicant as to whether or not the system to be provided was on-site stormwater detention or on-site stormwater retention.

11. The conditions were provided to the applicant at the beginning of this week – contrary to the requirements of the Court for a longer period for the conditions to be considered. Those conditions are now contested but Mr Webber, solicitor for the applicant, is content to have me deal with them on the merits.

12. The provisions for stormwater disposal, which underpin those contained in the manual, are provided in the Manly Development Control Plan for the Residential Zone 2001 (the DCP) at 3.14. The DCP there sets out a number of objectives and a number of performance criteria.

13. In considering the present application, I must necessarily, as required by the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, use the provisions of the DCP as the starting or focal point in my determination of this issue.

14. There are a number of performance criteria in the DCP at 3.14.2. The council presses the second of them which is a requirement that:

All developments requiring development consent are required to comply with council’s policy for stormwater control, specification for on-site stormwater management and specification for drainage design.

15. A variety of options are noted in that criterion.

16. The third of the criteria, I note, is an encouragement by the council for the installation of rainwater tanks to enable such tanks to be used for garden watering, washing cars and the like.

17. The present application proposes no alteration whatsoever to the hard surface on the site and no increase whatsoever in the collection area for stormwater from the roof of the site.

18. Mr Webber has been instructed to proffer a condition, which would require the installation of a slimline rainwater tank, which would enable the collection and use of part of the stormwater on the site for appropriate purposes that would be permitted under Sydney Water and health regulations.

19. Mr Griffiths, solicitor for the council, presses, on instructions from a council engineer, that the size of such tank should be at least 5000 litres.

20. It is my experience that a tank of that size would need to be, if a circular tank, of two metres or so in height and two metres or so in diameter.

21. I am satisfied from a consideration of the plan of the site that it would be unreasonable and a significant intrusion on the available private open space of any occupants of the site to require the installation of a tank of those dimensions.

22. I am satisfied that a slimline tank of a capacity of at least 800 litres connected to the roof water collection system would be an appropriate response, given the fact that there is no increase in the stormwater discharge from the site and that, consistent with criterion C of the stormwater disposal performance criteria, that would be an appropriate response. I do not consider, under the circumstances, that it would be reasonable to require the imposition of a more extensive and interventionist stormwater disposal system given the fact that there is no change whatsoever to the stormwater generation from the site.

23. As a consequence, subject to the requirement of the applicant to file an amended plan reflecting the change that I have outlined and subject to the council filing conditions of consent reflecting the decision (including an appropriate condition relating to a slimline stormwater tank of a size not less than 800 litres) and the applicant’s revised plans identifying the proposed location for such tank, the appeal should be upheld.

24. In order to provide for that, I give the following directions:

1. The applicant is to file and serve revised plans by the close of business on 3 November 2006;
2. The respondent is to file and serve revised conditions by the close of business on 3 November 2006 and that the conditions are to be filed in accordance with Practice Direction 2 of 2005 and a separate email notification provided to the Court of that filing;
3. The matter is set down for call over on Wednesday 8 November 2006;
4. If directions 1 and 2 are complied with then I will make orders in chambers and vacate the call over;
5. Liberty to re-list before me on two days notice of any matters arising out of directions 1 and 2; and
6. The exhibits other than exhibits 1 and A are returned.

Commissioner of the Court