Tobias Partners v Woollahra Municipal Council

[2008] NSWLEC 1184

Land and Environment Court

of New South Wales

CITATION:

Tobias Partners v Woollahra Municipal Council [2008] NSWLEC 1184

PARTIES:

APPLICANT
Tobias Partners

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11210 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Alterations and additions to an existing hourse, disposal of stormwater, proposed easement

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995

CASES CITED:

Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436
Castagnet Investments Pty Limited v Woollahra Municipal Council [2005] NSWLEC 647

DATES OF HEARING:

08/04/2008

EX TEMPORE JUDGMENT DATE:

8 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Drury, solicitor
DLA Phillips Fox

RESPONDENT
Ms J Hewitt, solicitor
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 April 2008

11210 of 2007 Tobias Partners v Woollahra Municipal Council

JUDGMENT

Background

1 This is an appeal against the refusal by Woollahra Municipal Council (council) of a development application under the Environmental Planning and Assessment Act 1979 for alterations and additions to an existing house at 10 Fairfax Road, Bellevue Hill (the site).

2 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

3 A conference under s 34 of the Land and Environment Court Act 1979 was held on site on 19 March 2008. Agreement was generally reached at the s34 conference. The only remaining issue in dispute between the parties in this hearing is whether adequate provision has been made for the disposal of stormwater from the site pursuant to cl 25(2) of Woollahra Local Environmental Plan 1995 (LEP 1995). Clause 25(2) provides:

The council must not grant consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop.

4 The owner of the site has entered into an agreement with the owner of the adjoining property, 8 Fairfax Road, to grant an easement to drain water through this property. The agreement requires the easement to be registered within 30 days of the grant of development consent. A copy of the signed transfer granting the easement (exhibit B) and the plan of the proposed easement and the concept stormwater plans (exhibit A) were tendered.

5 Council is satisfied with the physical drainage works and, in principle, with the easement, but it is concerned that the easement has not been registered on the title and therefore does not totally satisfy cl 25(2).

6 Ms Hewitt, for the council, referred to the judgment of Bignold J in Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436 where His Honour at paragraph 13 stated:

….adequate provision….. includes consideration of the legal capacity or competence (in addition to any question of the physical capacity…).

7 As stated above, there is no dispute between the parties as to the physical capacity of the proposed drainage but the question relates to the ‘legal capacity or competence’ of the easement to satisfy cl 25(2). Council is concerned that even though there is a legal agreement between the respective owners for an easement, it has not been registered.

8 Ms Hewitt submits that only registration of the easement provides the ‘adequacy’ required by cl 25(2). She submits that various matters could arise that may prevent the registration of the easement, including that there is no evidence of agreement to the easement from the mortgagee over 8 Fairfax Road. She submits that the matter should be adjourned until the easement is registered on the title. Ms Hewitt submits that consistent with His Honour’s decision in Billgate, the matter cannot be satisfied by a condition of consent requiring registration.

9 Mr Drury, for the applicant, submits that:

The Billgate decision can be clearly distinguished from the present case. In the Billgate matter, the applicant proposed to utilise an existing easement over an adjoining property and had neither finalised a legal right to do so, nor had the applicant addressed the question of legal capacity or competence to utilise the existing adjoining easement in addition to any consideration of its physical capacity.

10 Mr Drury relies upon the decision of Justice Talbot in Castagnet Investments Pty Limited v Woollahra Municipal Council [2005] NSWLEC 647, where at para 22 His Honour states:

I accept what the parties have put to me that cl 25(2) of the LEP can be met if a fully detailed specification and appropriate plans are provided to it that enable it to come to the conclusion that adequate provision has been made for a drainage system that will dispose of the stormwater from the subject land. It is not necessary for the Court to be satisfied that the provisions are physically in place only that adequate provision has been made for. In other words if the Court can be persuaded that the proposed disposal scheme will work and can dispose of the stormwater by connecting to the existing council reticulation system (including to the extent that the existing system is capable of handling the output from the subject land) or by other means, then applying Billgate the constraint imposed by cl 25(2) can be satisfied.

Findings

11 I accept Mr Drury’s submission. The test in cl 25(2) requires that prior to granting consent the Court must be satisfied that adequate provision has been made for the disposal of stormwater. The circumstances of this case are different to those in Billgate. In this case the physical details of the stormwater arrangement are agreed by the parties to be adequate and there is a legal agreement between the owners of the site and the adjoining land to an easement. This legal agreement requires the easement to be registered within thirty days of the grant of development consent.

12 His Honour in his adjudication in Billgate states at para 14 that:

Upon the assumption that the evidence adduced at the hearing of the appeals will be insufficient (either legally or factually) to enable the Court to conclude that adequate provision relevantly has been made for the disposal of stormwater (for example that the evidence satisfies the Court that there is no legal entitlement to utilise the existing easement over the adjoining property for the purpose of disposing of stormwater from the proposed development).

13 His Honour’s judgment on matters such as the satisfaction of cl 25(2) through the imposition of conditions flow from the above assumptions of insufficient information. Further at para 11 His Honour states:

…the requirement of cl 25(2) of the LEP that there be “adequate provision for the disposal of stormwater” is not determined by the attitude or action of the Council. Rather, it is a matter between the Applicant and the relevant landowner of the land over which the easement is necessary. The agreed facts do not conclude this matter other than to state that an easement is necessary and to date none has been granted.

14 In this case the relevant easement has been granted and there is sufficient legal certainty for me to be satisfied that adequate provision has been made for the development to be approved, particularly as the application is for alterations and additions to an existing house, which already has requirements for stormwater disposal. This approach is consistent with the findings of Talbot J in Castagnet where the test of ‘adequacy’ is that a system will work not that it is in place.

15 Further the parties agreed that an order under s 40 of the Land and Environment Court Act that an easement be granted is sufficient to satisfy the requirements of cl 25(2). This does not require registration of the easement prior to development consent.

16 The parties have agreed that a deferred commencement condition requiring registration of the easement provides abundant caution. I do not require the imposition of a deferred commencement condition to satisfy the requirements of cl 25(2) as I am satisfied that adequate provision is made through the legal agreement. However, I accept that for abundant caution, and as the parties have agreed, a deferred commencement condition requiring registration of the easement should be imposed.

17 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development application for alterations and additions at 10 Fairfax Road, Bellevue Hill is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits A, C and 2 are to be returned.

___________________

Annelise Tuor
Commissioner of the Court