Tawfils v Hurstville City Council

[2012] NSWLEC 1300

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tawfils v Hurstville City Council [2012] NSWLEC 1300

Hearing dates:

27 September 2012

Decision date:

31 October 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is dismissed.

2. Modification Application No. 11/DA-252REV01 to delete Schedule 1 of deferred commencement consent requiring the provision of an easement to drain water for the approved dual occupancy development at 667 Forest Road, Peakhurst is refused.

3. The exhibits, other than exhibit 1, are returned.

Catchwords:

MODIFICATION APPLICATION: delete a deferred condition of consent requiring a drainage easement

Legislation Cited:

Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979

Cases Cited:

Zhang v Canterbury City Council (2001) 115 LGERA 373

Category:

Principal judgment

Parties:

Mr Ayman Tawfils (Applicant)
Hurstville City Council (Respondent)

Representation:

Mr Anthony Hudson (Solicitor) (Applicant)
Mr Adam Seton (Solicitor) (Respondent)
Solicitors
Wilshire Webb Staunton Beattie Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

10677 of 2012

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act1979 against the refusal of Modification Application No. 11/DA-252REV01 (the proposal) by Hurstville City Council (the Council) to delete Schedule 1 of the deferred commencement consent requiring the provision of an easement to drain water for the approved dual occupancy development, at 667 Forest Road, Penshurst (the site).

1. The appeal was subject to mandatory conciliation on 27 September 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i).

Issues

1. The Council's contentions in the matter can be summarised as:

• The proposal to drain the entirety of the driveway and paved surface areas and the rear portion of the roof to two absorption trenches in the rear yard is likely to result in overland flow and has the potential to result in on-site erosion;
• The provision of an easement for drainage would be consistent with the objectives of Development Control Plan No 1 - Hurstville LGA (DCP 1) and no cogent reason has been provided with the application to justify why an alternative solution to a drainage easement should be considered;
• The proposal includes a charged system to force stormwater upstream into rainwater tanks, which then drain by gravity to the kerb and gutter in Forest Road. Forest Road drains into a sub-catchment to which the site has never previously drained and this has the potential to adversely impact on downstream properties within this sub-catchment by placing an additional load on the existing stormwater disposal infrastructure, which is likely to increase the frequency of flooding for some lots within this sub-catchment if the system reaches or exceeds capacity;
• The approval of the application will set an undesirable precedent for similar inappropriate development in the area, which would result in cumulative adverse impacts.

The site and its context

1. The site is located on the southern side of Forest Road and has an area of 682.79 m2 and a site frontage of 15.465 m. The site has a slope from front to rear in the order of 6.86 m.

Background and the proposal

1. Development Application 11/DA-252 for the demolition of the existing house and construction of an attached dual occupancy was granted Deferred Commencement Consent on 20 December 2011. Schedule 1 of that consent states the following:

A. Registration of Stormwater Easement - The person with the benefit of the consent must acquire an Easement to Drain Water of 1 metre (minimum) width. The easement must allow for a piped, gravity fed system of drainage of stormwater from the land the subject of this consent, with direct, underground connection to Council's kerb and gutter or stormwater system in Neilson Avenue.

The consent is not to operate until evidence of registration of the easement to drain water benefiting the land the subject of this consent and burdening the title of each such other property/ies is provided to Council.

B. Development Consent for Stormwater Works on Adjoining Properties - The person with the benefit of the consent must obtain separate Development Consent for all drainage works to be carried out within the Easement to Drain Water. The written consent of each of the owners of the property/ies burdened by the Easement will be required for each development application to carry out the drainage works on the burdened lot/s.

The consent is not to operate until development consent is obtained for the whole of the drainage works within the Easement(s) to drain water.

Documentary evidence as requested or the above information must be submitted within twelve (12) months of the granting of this deferred commencement consent. Commencement of the Consent cannot commence until written approval of the submitted information has been given by Council.

1. The application proposes an amended drainage system, which collects roof water via a charged stormwater line into an in-ground rainwater tank on each site, with the overflow from these tanks draining by gravity to the kerb and gutter in Stoney Creek Road. All stormwater runoff, from the driveways, paths and rear yard areas and rear portion of the roof, is to be collected on site in absorption trenches located in the rear yard and these trenches drain to the rear, via overland flow when capacity is exceeded.

Planning Framework

1. The proposal is subject to the provisions of the Greater Regional Environmental Plan No 2 - Georges River Catchment (REP Georges River Catchment).

1. The aims and objectives of REP Georges River Catchment, include, at clause 5:

(a) to maintain and improve the water quality and river flows of the Georges River and its tributaries and ensure that development is managed in a manner that is in keeping with the national, State, regional and local significance of the Catchment

1. The planning principles of REP Georges River Catchment are to be applied when a consent authority determines a development application, at sub-clause 7(b). The aims, objectives and planning principles of the plan are to be taken into account by the consent authority, at sub-clause 8(a).

1. The proposal is zoned 2 (Residential Zone) under the provisions of the Hurstville Local Environmental Plan1994 (LEP 1994). The zone objectives include, at clause 8 of LEP 1994, the following:

To preserve and enhance the character and amenity of established residential areas

1. The proposal is subject to the provisions of DCP 1. DCP 1, includes, at clause 1.10, the following explanation as to how a favourable result can be achieved:

Where a proposal seeks to satisfy the design principles rather than the controls, written documentation to support the variation must be submitted.

Because every site is unique, compliance with the design principles and development controls does not guarantee approval of an application. The objectives must be achieved in each case. Each application will be considered on its merits and within the guildelines of this DCP.

1. Clause 4.2.11 of DCP 1, Stormwater Drainage includes the following:

Stormwater management is a critical issue for an urbanised area like Hurstville Council. Effective stormwater management will improve conditions for the site, neighbourhood and local waterways such as the Georges River and Salt Pan Creek.

Objectives

• Reduce and control rainwater in order to minimise overland flows, soil erosion and the siltation of streams and waterways.
• Encourage the collection and reuse of rainwater.

Design Principles

(a) Original stormwater patterns are formalised and not dramatically altered in terms of direction and fall etc.

(c) Stormwater collection and runoff is minimised by reducing hard paved outdoor areas, driveways and roofed areas.

Design Solutions and Controls

(a) On site detention of stormwater is encouraged. Otherwise stormwater drainage must discharge to the roadway kerb and gutter unless Council approves an alternative arrangement.

(b) Depending on the site, Council may require or allow the following alternative drainage arrangements:

• charged pipe or pump out systems, except if land slopes to the rear;
• an easement over adjoining land for drainage;
• an easement across the subject site to permit drainage from another lot; and
• provision of an on-site storage basin or tanks for the re-use of water.

(c) If land slopes to the rear, a 1 metre easement must be provided which drains to the stormwater drainage system to the street at the rear.

(d) Buildings are not to be constructed over easements.

Expert evidence

1. Expert drainage evidence was provided by Dr Daniel Martens for the applicant and Dr Geoffrey O'Loughlin for the Council.

1. The experts agree on the following:

• The existing dwelling discharges stormwater onto the site and there is no evidence of erosion;
• If each trench is 1.1 m3 within a grassed area, it will result in a discharge event every 1-2 years which will not cause erosion when the water exits the trench;
• That the water flow into the Bonds Road sub-catchment would be in the order of 10L/s during a 1/100 year event.

1. The experts agree that the subsequent impact of the diverted water from the site on the Bonds Road catchment would be small; according to Dr Martens it would rise 1.7 mm in a 1/100 year event, which is negligible and according to Dr O'Loughlin the impact would be a small increase in flow.

1. Dr O'Loughlin says he is aware that the bottom of Bonds Road (adjacent to 99 and 99A Bonds Road) is a problem spot in terms of flooding. The experts agree that the flood study prepared for the subdivision of 99 Bonds Road (Exhibit 5) is conservative and does not allow for lagging through the catchment. According to Dr Martens, the nominated freeboard for the development at 99 Bonds Road is 300 mm, whereas 500 mm is standard for flood liable land.

1. Dr O'Loughlin proposes that a third option, to avoid the necessity for an easement and to contain the water within the existing sub-catchment, would be to pipe the overflow from the water tanks along Forest Road and around the corner into Forshaw Avenue. Dr Martens estimates that the cost of such an option would be in the order of $50-75,000.00.

1. According to Dr Martens, the only justification for the third option suggested by Dr O'Loughlin is to contain the water in the same sub-catchment. He says that all drainage systems redistribute flows and that a consideration of catchments and sub-catchments is a matter of scale, as ultimately the storm water from the site will flow into the Georges River catchment.

1. Dr O'Loughlin says that while the impact of the proposal on the Bonds Road catchment is small, there is still an impact and any impact is to be avoided, because any increase in water increases the risk of flood damage to residences in the Bonds Road area.

1. Dr O'Loughlin also says that should this proposal be approved, other proposals may seek to redistribute storm water to adjoining catchments or sub-catchments and these will result in cumulative impacts.

1. Dr Martens says that the proposed change to the amount of storm water in the Bonds Road catchment will be imperceptible and inconsequential.

Submissions

Drainage easement

1. Mr Seton submits that the applicant has not made adequate effort to obtain the drainage easement, as the proposed route for the easement has not been identified or surveyed and the easement has not been valued. Further, the Supreme Court, under s.88K of the Conveyancing Act1919, can make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

1. Mr Hudson submits that it is infeasible to obtain the drainage easement.

Exhibit C - recent dual occupancy development approvals

1. Exhibit C provides a list of seven approvals granted by Council for dual occupancy developments, between 2008 and 2011, which satisfy the following criteria:

• The subject land sloped from front to rear up to 2 m
• No easement for drainage was required
• Stormwater discharge to the street was permitted
• On-site infiltration absorption trenches were permitted

1. Council submits that there are two important differences between the examples provided in Exhibit C and this proposal, which are:

• The proposal has a greater slope from front to rear than the developments in Exhibit C;
• The proposal drains a portion of the roof water to a sub-catchment to which the land has never previously drained, whereas, the examples in Exhibit C all continue to drain to the same catchment or sub-catchment.

Findings and conclusion

1. The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. Firstly, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process but it is not in itself determinative.

1. DCP 1 provides for how stormwater drainage is to be dealt with in the Hurstville LGA. It relevantly states, at sub-clause 4.2.11 Stormwater Drainage, Design Principles, the following:

(a) Original stormwater patterns are formalised and not dramatically altered in terms of direction and fall etc.

1. DCP 1 sub-clause 4.2.11 Stormwater Drainage, Design Solutions and Controls, relevantly states the following:

(b) Depending on the site, Council may require or allow the following alternative drainage arrangements:

• charged pipe or pump out systems, except if land slopes to the rear;
• an easement over adjoining land for drainage;
• an easement across the subject site to permit drainage from another lot; and
• provision of an on-site storage basin or tanks for the re-use of water.

1. The drainage experts agree that a 1.1 m3 trench within a grassed area at the rear of each property will be satisfactory. I accept this evidence and while I am satisfied that this aspect of the proposal may be workable, it is however contrary to the principles of stormwater drainage control in DCP 1.

1. The proposal to drain a portion of the roof water to a sub-catchment to which the land has never previously drained, alters the direction and fall of the original stormwater pattern, which consequently increases, albeit slightly, the risk of flood damage to residences in the Bonds Road area. It is generally accepted engineering practice that storm water is not redirected to an adjoining sub-catchment.

1. I agree with Council's submission that the applicant has not made a convincing effort to obtain the required drainage easement, as a survey of the proposed drainage easement route to Nielson Avenue is not provided, nor has the easement been valued. I do appreciate, however, from the site inspection, that a drainage easement is likely to cross three allotments containing structures, which on some allotments fronting Neilson Avenue, extend to the side boundaries.

1. Whilst I accept that the proposal is a workable alternative solution for the stormwater drainage on this site, it does not fall within the alternative drainage arrangements anticipated by sub-clause 4.2.11(b) of DCP 1. In my opinion, the creation of a drainage easement is reasonably necessary for the effective development and subsequent use of the site for a dual occupancy development.

Orders

1. The orders of the Court are:

1.   The appeal is dismissed.

2.   Modification Application No. 11/DA-252REV01 to delete Schedule 1 of deferred commencement consent requiring the provision of an easement to drain water for the approved dual occupancy development at 667 Forest Road, Peakhurst is refused.

3.   The exhibits, other than exhibit 1, are returned.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 07 November 2012